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Res 1749 - Netassets Agreement COUNCIL BILL NO. 2496 RESOLUTION NO. 1749 A RESOLUTION ENTERING INTO AN AGREEMENT WITH NETASSETS CORPORATION FOR THE PURPOSE OF PROVIDING ON-LINE LIEN SEARCHES AND AUTHORIZING THE CITY ADMINISTRATOR TO SIGN SAID AGREEMENT. WHEREAS, the Oregon Legislature authorized electronic recording of liens (ORS 93.643); and WHEREAS, title companies have indicated their preference to search for City liens via the Internet; and WHEREAS, on-line recording of liens is more economical for the City than recording liens with Marion County; and WHEREAS, NetAssets Corporation offers the ability to make the Cities lien records available electronically to those customers who subscribe to their service; and WHEREAS, 22 other Oregon Cities are currently using the NetAssets system, NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into an Agreement with the NetAssets Corporation for the use of their system to make City lien record available via the Internet. Section 2. That a copy of said Agreement is affixed to this Resolution as Attachment "A!' and is by this reference incorporated herein. Section 3. That the City Administrator of the City of Woodburn is hereby authorized to sign said Agreement on behalf of the City. Approved as to form: January January January Passed by the Council Submitted to the Mayor Approved by the Mayor Page 1 - Council Bill No. 2496 Resolution No. 1749 '.-"-'.--....'---. -_. . ~ Filed in the Office of the Recorder January 28, 2004 ATTEST ~~~ Mary Te t City Recorder City of Wood bum, Oregon Page t - Council Bill No. 2496 Resolution No. 1749 .- --r-. If' Conduits™ Service Agreement EFFECTIVE DATE: 1/27/2004 PARTIES: NETASSETS CORPORATION (t1NETASSETStI) 44 Club Road, Suite 300, Eugene, Oregon 97401 World Wide Web: http://www.nassets.com City ofW oodburn ("ORGANIZATION") 270 Montgomery St Woodburn, OR 97071 RECITALS A. NET ASSETS has developed various electronic information services software and applications, including ''Conduits™'', which is more fully described below. B. ORGANIZATION desires to use Conduits™ under the terms and conditions set forth below. AGREEMENT This Agreement is made as of the date stated above, (the "Effective Date") and sets forth the terms and conditions under which the online web application known as ConduitsTM will be used by ORGANIZATION, and made available for use by NETAS SETS. 1. Definitions: 1.1 "ConduitsTM" shall mean the software application used for publication of the ORGANIZATION'S lien docket via the World Wide Web as created by NETAS SETS, including web pages, graphics, data formats, and server components. 1.2 "Intellectual Property Rights" shall mean any and all now known or hereafter known tangible and intangible, and in any media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed, (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, "rental" rights and rights to remuneration), whether arising by operation oflaw, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). Page 1 of 8 Conduits 1M Service Agreement --., 1.3 "Upgrade(s)" shall mean one or more upgrades, updates, enhancements, error corrections, new versions, new releases, bug fixes, patches and other modifications to Conduits ™ or Documentation. 1.4 "Transaction(s)" shall mean any search request initiated by an End-user for lien data related to an individual property. 1.5 "End-user(s)" shall mean any individual or entity that is given access to Conduits™ by ORGANIZATION, excluding ORGANIZATION. 1.6 "Documentation" shall mean all documents, tutorials, papers, or other materials intended for distribution with Conduits ™ for use in administration and for use by End-users of Conduits TM. 1.7 "Start Date" shall mean the date on which ORGANIZATION begins using Conduits to provide information to End-users. 2. License Grant and Restrictions 2.1 Grant. Subject to the terms of this Agreement, NETASSETS hereby grants to ORGANIZATION, and ORGANIZATION hereby accepts, a non-transferable, non-exclusive, terminable license to use the Documentation (and all Upgrades thereto) and to access and grant access to End-users to Conduits™ as provided by NETASSETS, in accordance with the terms and conditions of this agreement. 2.2 Restriction. ORGANIZATION shall not assign, license, sublicense, transfer, pledge, lease, rent, or share ORGANIZATION'S rights under this agreement to or with any third party, and shall not allow or enable any third party, other than End-users, to access or use Conduits™ without prior written authorization from NETAS SETS. 3. Delivery and Payment 3.1 Delivery. NETASSETS shall provide ORGANIZATION and End-users access to the Conduits™ application via the World Wide Web and provide one (1) physical copy of administrative Documentation and up to ten (10) physical copies of End-user Documentation. ORGANIZATION may request additional physical copies. 3.2 Payment. 3.2.1 Search Fees. ORGANIZATION agrees to pay NET ASSETS $8 per each Transaction by an End-user. NET ASSETS will invoice ORGANIZATION monthly at its address noted on page 1 of this Agreement or at such other address as ORGANIZATION may designate by written notice to NETAS SETS, and payment will be due within fifteen (15) days of receipt of the invoice. Payments shall be made at NETASSETS' address noted on page 1 of this Agreement or at Page 2 of 8 Conduits 1M Service Agreement .m .--....-.. .....~.- ---'''1'''-'' such other address as NETAS SETS may designate by written notice to ORGANIZATION. 3.2.2 Startup Fee. ORGANIZATION agrees to pay NET ASSETS an initial startup fee of$500. Payment shall be made on the Start Date. NET ASSETS agrees to waive the Startup Fee if the Conduits Start Date occurs within thirty (30) days from the date of this document. 4. Use of ConduitsTM 4.1 Prohibited Actions. ORGANIZATION shall not adopt, translate, copy or modify Conduits™, or the Documentation, or disassemble, decompile, reverse engineer, reverse compile, cross compile or otherwise attempt to derive source code from Conduits™. ORGANIZATION shall not create accounts for internal use of Conduits ™ for any person outside of ORGANIZATION. 4.2 Transmission of Data. ORGANIZATION shall be solely responsible for the timely and accurate update and transmission of lien information or other data entered for access via the Conduits ™ application system, and shall promptly report any problems encountered by ORGANIZATION or End-users in operation of or access to the Conduits ™ application. ORGANIZATION shall transmit all data to NETASSETS in the format(s) as mutually agreed upon in writing during the term of this agreement. 4.3 Ownership Rights. Ownership of all Intellectual Property Rights in Conduits™ will at all times remain the property of NETAS SETS. ORGANIZATION agrees not to remove or obliterate any copyright, trademark or proprietary rights notices of NETAS SETS or NETAS SETS's suppliers from Conduits™ or its Documentation. ORGANIZATION further agrees to reproduce all such notices found in Conduits ™ and its Documentation, and any Upgrades thereto. 5. Term of Agreement/Termination 5.1 Term. This agreement and the license and rights granted hereunder are effective from the Effective Date, until the date of termination under this Section 5. 5.2 Termination by ORGANIZATION. ORGANIZATION may terminate this Agreement: 5.2.1 At any time, with or without cause, effective upon 45 days prior written notice to NETAS SETS, or 5.2.2 Thirty (30) days after delivery of written notice to NETAS SETS by ORGANIZATION that NETAS SETS has breached any provision of this Agreement, if NETAS SETS has not cured such breach within the thirty (30) day period. 5.3 Termination by NET ASSETS. NET ASSETS may terminate this Agreement: Page 3 of B Conduits 1M Service Agreement ~.~^"^------_."'-+_. . 5.3.1 At any time, with or without cause, effective upon 45 days prior written notice to ORGANIZATION; 5.3.2 Immediately upon written notice to ORGANIZATION in the event of any breach of Sections 2.2,4.1 or 4.3; or 5.3.3 Thirty (30) days after delivery of written notice to ORGANIZATION that ORGANIZATION has breached any provision of this Agreement other than Sections 2.2,4.1 or 4.3, and has not cured such breach within the thirty (30) day period. 5.4 Actions Upon Termination. 5.4.1,. ORGANIZATION IS Actions. Upon termination ORGANIZATION shall immediately discontinue use of and return all complete or partial copies of Conduits ™ and its Documentation, and shall delete Conduits ™ or any portion thereof from its computer libraries or electronic storage media. 5.4.2. NETASSETS' Actions. Upon termination NETAS SETS shall cease to make available on Conduits TM, via the World Wide Web or otherwise, data. NET ASSETS shall have no obligation to return or retransmit any data to ORGANIZATION, and after termination may archive data solely for NETASSETS' business purposes. 5.4.3 Survival of Remedies /Effect of Termination for Breach. Each parties' remedies hereunder are cumulative, and termination of this Agreement shall not bar either party from pursuing any other remedy it may have available against the other for breach of the Agreement. The terminating party shall not be liable to the other party for damages or costs relating to termination pursuant to the terms and conditions of Sections 5.2 or 5.3. 6. Warranty 6.1 Limited Warranty. NETASSETS warrants that it has title to Conduits™ and that it has authority to grant the right of access and use herein to ORGANIZATION. NETAS SETS also warrants that, during the term of this agreement, Conduits ™ shall materially conform to the standards set forth in the Service Level Agreement attached hereto as Exhibit A. NETAS SETS makes no warranty regarding the usability, convertibility or transmission of any data. ORGANIZATION shall promptly notify NET ASSETS in writing upon the discovery of any non- conformance with this limited warranty, and NETAS SETS shall within a reasonable time make its best efforts to correct any non-conformance of which it has been properly notified. ORGANIZATION AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF NET ASSETS, AND NETASSETS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR Page 4 of 8 Conduits 1M Service Agreement _~~~,,".-._,,_..,.__,~,.,...__e~~_""__""_---"-"'-~" ANY PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY, THAT THE OPERATION OF CONDUITSTM WILL BE ERROR-FREE OR WITHOUT INTERRUPTION, OR THAT CONDUITSTM SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION. 6.2 Damage/Misuse. Notwithstanding the warranty provisions above, NETAS SETS shall have no warranty obligations with respect to any part or parts of Conduits ™ which have been damaged in transit or transmission or by improper installation or operation, or by misuse, abuse or negligent use or repair or alteration or improper storage or which may have been damaged by use which does not conform to the specific or general instructions of NETAS SETS or to the provisions of the Documentation, or if ORGANIZATION or any third party has modified or attempted to modify Conduits ™ or if the damage has occurred due to causes external to Conduits™, or if ORGANIZATION has failed to properly implement changes recommended by NETASSETS. 7. Limitation of Liability and Indemnification 7.1 Exclusion of Consequential Damages. IN NO EVENT SHALL NETASSETS BE LIABLE FOR ANY LOSSES OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO ORGANIZATION HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSffiILITY OF SUCH DAMAGES. 7.2 Maximum Monetary Liability for Breach of Warranty. Notwithstanding anything herein to the contrary, the maximum aggregate amount of money damages for which NETAS SETS may be liable to ORGANIZATION under this Agreement, resulting from any cause whatsoever, shall be limited to the amounts actually paid by ORGANIZATION to NET ASSETS under this Agreement during the ninety (90) days immediately preceding the date NETAS SETS is notified in writing of a claim by ORGANIZATION for breach of warranty. 7.3 Third Party Providers. ORGANIZATION acknowledges that in connection with Conduits TM, information will be transmitted over local exchange, interexchange and internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, internet service providers and others, all of which are beyond the control of NET ASSETS. Accordingly, NETASSETS assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of Conduits TM. 7.4 Indemnification with Respect to End-users. NETASSETS has no contractual relationship or other legal duty to End-user(s) and it assumes no liability with respect to the use ofConduits™ Page 5 of 8 Conduits 1M Service Agreement ......--.~.~.........--._-_..- ."~..,' ._--------...._.-._~..~ . by End-user(s). Accordingly, ORGANIZATION agrees to defend, indemnify, and hold NETAS SETS harmless for any losses, costs, claims, or other liabilities arising out of the use of Conduits ™ by End-users. 8. Support and Maintenance 8.1 General Support. NETASSETS shall provide to ORGANIZATION the maintenance and support services as set forth in the Service Level Agreement. 8.2 Product Improvements. 8.2.1 NETASSETS may develop one or more Upgrades to Conduits™. Upgrades, when released by NET ASSETS, will be provided to ORGANIZATION free of additional charge. If ORGANIZATION desires an Upgrade other than those produced at the discretion ofNETASSETS, to meet ORGANIZATION's individual requirements, ORGANIZATION will notify NETAS SETS in writing describing the proposed new feature or enhancement. NET ASSETS will respond within ten (10) days of receipt of ORGANIZATION IS request outlining the availability, if any, of the proposed feature or enhancement and the proposed terms under which the development of the proposed release could take place. 8.2.2 Development work undertaken at the request ofthe ORGANIZATION and any resulting Upgrades shall be subject to the terms of this Agreement, subject to such other mutually acceptable terms and conditions to which the parties may agree. NETASSETS will use reasonable commercial efforts to provide the services as soon as practicable and no later than the completion dates set forth in mutually acceptable development project specifications. 9. Miscellaneous Provisions 9.1 No Assignment. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by ORGANIZATION, and any purported assignment or transfer shall be null and void. 9.2 Standard Contracting Law Provisions contained in Exhibit "N' attached hereto are incorporated into this Agreement. 9.3 Severability. If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability or limited warranty is intended by the parties to be severable and independent of any other provision and to be enforced as such. 9.4 Entire Agreement/Modification. This Agreement and its attachments constitute the entire agreement between the parties concerning Conduits™ and supersede all prior agreements, Page 6 of 8 Conduits 1M Service Agreement ..._--~-_..~...__._._..._.. whether written or verbal, between the parties. No purchase order, other ordering document or any other document which purports to modify or supplement this Agreement or any attachment hereto shall add to or vary the terms and conditions of this Agreement, unless executed by both NETASSETS and ORGANIZATION and expressly identified therein as a modification to this Agreement. No amendment shall be considered to have been made to this Agreement unless it is in writing and is executed by both parties. 9.5 Force Majeure. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party, including without limitation interruption of power or communications facilities or failure of data storage hardware or software that is not caused solely the party's acts or omission. 9.6 Governing Law, Venue, Jurisdiction. The parties agree that this Agreement shall be governed and construed by the laws of the State of Oregon. The parties hereby submit to the jurisdiction and venue of the Circuit Court of the State of Oregon for Lane County or, if appropriate, the federal courts of the District of Oregon. 9.7 Number, Gender, Captions. As used herein, the singular shall include the plural, and the plural the singular. The masculine and neuter shall each include the masculine, feminine, and neuter, as the context requires. All captions used herein are intended solely for convenience of reference and shall in no way limit any of the provisions of this Contract. 9.8 Attorney Fees. In the event action is instituted to enforce any term of this Agreement, the prevailing party shall recover from the losing party reasonable attorney fees incurred in such action as set by the trial court and, in the event of appeal, as set by the appellate courts. 9.9 Notices. Any notice or other communication required or permitted to be given under this Agreement will be in writing, will be delivered personally or by mail or express delivery, postage prepaid, and will be deemed given upon actual delivery or, if mailed by registered or certified mail, on the third business day following deposit in the mails, addressed to the appropriate party at the address first set forth above. Either party may, by written notice, designate a different address for purposes of this Agreement. NetAssets Corporation: By: Rick Gates, President City ofW oodburn By: Page 7 of 8 Conduits 1M Service Agreement .... .__.....-~._...._.._- Printed Name: Title: Page 8 of 8 Conduits™ Service Agreement .._-<.~------ EXHIBIT A Page 1 of 3 STANDARD PUBLIC CONTRACTING LAW PROVISIONS Contractor shall observe all applicable state and local laws pertaining to public contracts. ORS Chapter 279 requires every public contract to contain certain provisions. Pursuant to ORS Chapter 279, the following provisions shall be a part of this Agreement, as applicable. 1. Pursuant to ORS 279.312, Contractor shall make payments promptly, as due, to all persons supplying to Contractor labor or material for the prosecution of the work provided for in such contract. Contractor shall pay all contributions or amounts due the Industrial Accident Fund from Contractor or any subcontractor incurred in the performance of the contract. Contractor shall not permit any lien or claim to be filed or prosecuted against the state, county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished. Contractor shall pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. 2. Pursuant to ORS 279.314, if Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person in connection with the public contract as such claim becomes due, the proper officer or officers representing the state, county, school district, municipality, municipal corporation or subdivision thereof, as the case may be, may pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds due or to become due the contractor by reason of such contract. 3. Pursuant to ORS 279.314, if Contractor or a first-tier subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the public contract for a public improvement within 30 days after receipt of payment from the public contracting agency or a contractor, Contractor or the first-tier subcontractor shall owe the person the amount due plus interest charges commencing at the end of the 10-day period that payment is due under ORS 279.445 (4) and ending upon final payment, unless payment is subject to a good faith dispute as defined in ORS 279.445. The rate of interest charged to Contractor or the first-tier subcontractor on the amount due shall equal three times the discount rate on 90-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve district that includes Oregon on the date that is 30 days after the date when payment was received from the public contracting agency or from the contractor, but the rate of interest shall not exceed 30 percent. The amount of interest may not be waived. 4. Pursuant to ORS 279.314, if Contractor or a subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the public contract, the person may file a complaint with the Construction Contractors Board, unless payment is subject to a good faith dispute as defined in ORS 279.445. 5. Pursuant to ORS 279.316, no person shall be employed for more than 10 hours in anyone day, or 40 hours in anyone week, except in cases of necessity, emergency, or where the public policy absolutely requires it, and in such cases, except in cases of contracts for ----.--. EXHIBIT A Page 2 of 3 personal services as defined in ORS 279.051, the employee shall be paid at least time and a half pay: A. For all overtime in excess of eight hours a day or 40 hours in anyone week when the work week is five consecutive days, Monday through Friday; or B. For all overtime in excess of 10 hours a day or 40 hours in anyone week when the work week is four consecutive days, Monday through Friday; and C. For all work performed on Saturday and on any legal holiday specified in ORS 279.334. 6. Pursuant to ORS 279.316, in the case of contracts for personal services as defined in ORS 279.051, employees shall be paid at least time and a half for all overtime worked in excess of 40 hours in anyone week, except for individuals under these contracts who are excluded under ORS 653.010 to 653.261 or under 29 D.S.C. sections 201 to 209 from receiving overtime. 7. Pursuant to ORS 279.316, persons employed under contracts for services shall receive at least time and a half pay for work performed on the legal holidays specified in a collective bargaining agreement or in ORS 279.334 (1)(a)(C)(ii) to (vii) and for all time worked in excess of 10 hours a day or in excess of 40 hours in a week, whichever is greater. 8. Pursuant to ORS 279.320, Consultant shall promptly, as due, make payment to any person, copartnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention, incident to sickness or injury, to the employees of such contractor, of all sums which Consultant agrees to pay for such services and all moneys and sums which the contractor collected or deducted from the wages of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service. 9. Pursuant to ORS 279.320, all subject employers working under this contract are either employers that will comply with ORS 656.017 or employers that are exempt under ORS 656.126. 10. Pursuant to ORS 279.445, Contractor shall include in each subcontract for property or services entered into by Contractor and any first-tier subcontractor, including a material supplier, for the purpose of performing a construction contract: A. A payment clause that obligates Contractor to pay the first-tier subcontractor for satisfactory performance under its subcontract within 10 days out of such amounts as are paid to Contractor by the public contracting agency under such contract; and .. . r~" ._.._-_._.._- ......----.-.- EXHIBIT A Page 3 of 3 B. An interest penalty clause that obligates Contractor, ifpayment is not made within 30 days after receipt of payment from the public contracting agency, to pay to the first-tier subcontractor an interest penalty on amounts due in the case of each payment not made in accordance with the payment clause included in the subcontract pursuant to paragraph (a) of this subsection. Contractor or any first- tier subcontractor shall not be obligated to pay an interest penalty if the only reason that Contractor or first-tier subcontractor did not make payment when payment was due is that Contractor or first-tier subcontractor did not receive payment from the public contracting agency or Contractor when payment was due. The interest penalty shall be: (1) For the period beginning on the day after the required payment date and ending on the date on which payment of the amount due is made; and (2) Computed at the rate specified in ORS 279.314 (2). -' "._..~_._._,..._,.._~...".._~,..."_.,"_.".,-_.._--<.....-.~...._-,"-""~_._~-~,.,,....