HomeMy WebLinkAbout04-12-2017 Passportparking Inc - Parking Citation Management Software and related servicesAGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on April 12, 2017,
by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City,
and PASSPORTPARKING, INC., hereinafter referred to as Contractor.
WITNESSETH:
WHEREAS, on August 10, 2016, City requested proposals for a Parking Enforcement and
Management System per Specification No. 91495.
WHEREAS, pursuant to said request, Contractor submitted a proposal which was accepted by City
for parking citation management software and related services.
NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants
hereinafter contained, the parties hereto agree as follows:
1. TERM. The term of this Agreement shall be from the date this Agreement is made (the
"Effective Date") and entered, as first written above, until five (5) years from the launch of the Contractor's
citation management software (the "Initial Term"), provided, however, that the parties may extend this
Agreement by mutual consent for up to two (2) additional twenty-four (24) month extension periods (each
an "Extension Term").
2. INCORPORATION BY REFERENCE. City Specification No. 91495 and Contractor's
proposal dated September 15, 2016, are hereby incorporated in and made a part of this Agreement. In the
event of a conflict between the terms of this Agreement, Attachment A, City Specification No. 91495 and
Contractor's proposal dated September 15, 2016, those documents will be interpreted in the following order
of ascending priority.
a) City Specification No. 91495
b) Contractor's proposal dated September 15, 2016
c) This Agreement
d) Attachment A
3. PARTIES OBLIGATIONS. Attachment A hereto sets for the obligations of the Parties
under this Agreement.
4. AMENDMENTS. Any amendment, modification, or variation from the terms of this
Agreement shall be in writing and shall be effective only upon approval by the Council or duly authorized
agent of the City.
5. COMPLETE AGREEMENT. This written Agreement, including all writings
specifically incorporated herein by reference, shall constitute the complete agreement between the parties
hereto. No oral agreement, understanding, or representation not reduced to writing and specifically
incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or
representation be binding upon the parties hereto.
6. NOTICE. All written notices to the parties hereto shall be sent by United States mail,
postage prepaid by registered or certified mail addressed as follows:
City City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Contractor 1300 South Mint Street
Suite 200
Charlotte, NC 28203
7. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant
that each individual executing this agreement on behalf of each party is a person duly authorized and
empowered to execute Agreements for such party.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day
and year first above written.
ATTEST:
L 'C� - IL
City Clerk
APPROVED AS TO FORM:
City
CITY OF SAN LUIS OBISPO
By:
_ 11) 4'��
City anagei /
Kli ' ian Gutierrez
Chief Business eve opment Officer
ATTACHMENT A
SOFTWARE LICENSE AND SERVICE AGREEMENT
The following terms, including the terms and conditions found in all Exhibits (the "Agreement"),
represent the full understanding of Pass portParking, Inc. ("Passport") and the Party named
below ("Provider" and with Passport, the "parties" and each individually a "Party"). In exchange
for the mutual covenants herein and other good and valuable consideration, the Parties agree
and intend to be bound as follows:
I. GENERAL TERMS
Effective Date: April 12, 2017
Launch Delays:
If Provider fails to launch the CMP within ninety (90) days after the Effective Date above,
Provider will pay a monthly platform fee to Passport equal to the lesser of $1,500.00 or any
applicable monthly fee per platform for which the launch has been delayed beyond ninety
(90) days from the Effective Date.
Services:
Passport will provide services (the "Services") and license all software, including all web
and mobile applications and related documentation, (the "Software") necessary for
Provider to operate:
a citation management platform ("CMP") which allows Provider's parking
enforcement officers in any or all parking facilities owned or managed by Provider
(the "Premises") the ability to issue parking citations that may be paid online through
Passport's payment portal;
Governing State Law: California
Termination:
Either Party may terminate this Agreement for convenience by providing thirty -days written
notice to the non -terminating Party.
II. CITATION MANAGEMENT PLATFORM TERMS
Equipment:
a) Provider must purchase a sufficient number of Android -based handheld devices for each
parking enforcement officer to have access to one device while conducting parking
enforcement activities
b) Provider must maintain at its sole cost one wireless data plan for each Android device
c) Provider must possess at least one Bluetooth -enabled printer per Android device described
above
d) In addition to the unit costs per Bluetooth -enabled printer above, Provider will be
responsible for paying all shipping costs and printer paper costs
e) If Provider orders custom printer paper through Passport, Provider will be responsible for
paying the costs of creating, printing, and shipping such custom paper plus a 12% service
fee to Passport. Passport is unable to provide estimated costs until specific details of
Provider's order have been confirmed due to the variable costs of its 3rd party.
Collections Support (Passport will Provide the Selected Services):
O Passport will provide an online payment portal through which parking violators may pay
outstanding parking citations
O After a mutually agreed number of days following the issuance of a citation, but in no event
less than twenty-one (21) days after citation issuance, Passport will automatically generate
and send an initial letter to each parking citation owner for which Passport has necessary
state licensure authorization to perform a driver record lookup informing such parking
violator that they have an outstanding parking citation and that the citation amount will
increase. In the ordinary course, it is expected that the initial letter will be delivered on the
twenty-first (21 st) day following citation issuance.
O Passport will send a second letter after a mutually agreed number of days after issuance for
each applicable unpaid citation owner, which shall in no event be less than fourteen (14)
days after sending the initial letter. By way of example, in the ordinary course, it is
expected that the second letter will be mailed on or about the thirty-ninth (39th) day after
citation issuance and no later than on or about the forty-ninth (49th) day after citation
issuance. Citation fees will escalate upon mailing of the second letter (the "Escalated
Collections Commencement Date") and this marks the beginning of "Escalated Collections"
for the purposes of Section III FEES.
O If authorized by the relevant driver licensure bureau, where a citation remains unpaid after
thirty days after Passport has sent the letter described in subsection b) above, Passport will
submit the relevant information to a collections agency approved by Provider to initiate a
formal hard collections process
State Licensure Authorizations:
Passport will provide a list of states in which Passport has the authority to do driver record lookups
upon request by Provider.
Ill. FEES
Initial Term Monthly Fixed CMP Software License Fee:
$3,000.00
Extension Term Monthly Fixed CMP Software License Fee: $2,000.00
— . .... ------------ .
CMP Service and License Fee Per Ticket Paid Online After Escalated 15% of Escalated
Collections Have Begun: Citation Amount
CMP Online Payment Convenience Fee (PAID BY CITATION HOLDER): $3.00
Cost Per Notification Letter Sent by Passport: $1.25
Escalated Collections:
Escalated Collections will begin on the Escalated Collections Commencement Date set forth in
the preceding section.
Monthly Minimum:
If the total fees payable to Passport, calculated according to the fees above, as a result of
Provider's use of the CMP during any month are less than the monthly minimum fees, then in
addition to such fees, the Provider will pay the difference between the amount actually collected
("Paid") and the monthly minimum CMP fees ("Minimum") as follows:
Additional Amount Payable to Passport = Minimum - Paid
Merchant Processing Costs:
Provider will be responsible for paying all merchant processing costs, including, without
limitation, settlement fees, payment gateway fees, chargeback fees, and interchange
reimbursement fees.
Merchant of Record for Transactions: J Passport X Provider
Passport Merchant Processing Rate Per Transaction:
Payment Gateway Provider:
Passport Gateway Fee Per Transaction:
EXHIBIT A
N/A
Passport X Other
N/A
STANDARD TERMS AND CONDITIONS ATTACHMENT
SERVICE LEVELS
PASSPORT WILL PROVIDE HOSTING FOR
THE SOFTWARE IN ACCORDANCE WITH ALL
LOCAL LAWS AND REGULATIONS. PASSPORT'S
SOLE AND EXCLUSIVE OBLIGATION IN THE
EVENT OF AN ERROR OR INTERRUPTION OF THE
SOFTWARE IS TO USE PASSPORT'S BEST
EFFORTS TO RESTORE OR REPAIR THE
SOFTWARE AS QUICKLY AS PRACTICABLE.
SYSTEM UPTIME
PASSPORT WILL PROVIDE THE
SOFTWARE WITH UPTIME OF AT LEAST NINETY-
NINE PERCENT (99%) CALCULATED OVER A
ROLLING SIX-MONTH PERIOD ("UPTIME
GUARANTEE"). FOR ANY MONTH DURING
WHICH SYSTEM UPTIME DROPS BELOW THE
UPTIME GUARANTEE, PASSPORT WILL PROVIDE
A BILLING CREDIT IN AN AMOUNT EQUAL TO:
THE PERCENTAGE DIFFERENCE BETWEEN A)
THE LOWEST UPTIME REACHED AT ANY POINT
DURING THE MONTH (CALCULATED ON A
ROLLING SIX MONTH PERIOD) AND B) THE
UPTIME GUARANTEE MULTIPLIED BY THE
TOTAL FEES PAYABLE TO PASSPORT FOR SUCH
MONTH. FOR EXAMPLE, IF DURING A GIVEN
MONTH THE SOFTWARE UPTIME FELL AS LOW
AS NINETY-FIVE PERCENT (95%) AND DURING
THAT MONTH, THE FEES PAYABLE TO
PASSPORT WERE ONE HUNDRED DOLLARS
($100.00), PASSPORT WOULD ISSUE A BILLING
CREDIT OF FOUR DOLLARS ($4.00). FOR THE
PURPOSES OF THIS AGREEMENT, UPTIME IS
DEFINED AS ANY PERIOD OF TIME DURING
WHICH END USERS OF THE SOFTWARE CAN USE
THE SOFTWARE TO PAY FOR PARKING, PAY FOR
MOBILE TICKETS, OR ISSUE PARKING
CITATIONS, AS APPLICABLE.
DATA OWNERSHIP
ALL DATA AND INFORMATION PROVIDED
TO PASSPORT BY PROVIDER WILL BE OWNED
EXCLUSIVELY BY PROVIDER, AND PASSPORT
HEREBY ACQUIRES AN IRREVOCABLE, NON-
EXCLUSIVE, NON-TRANSFERRABLE, AND NON-
SUBLEASEABLE LICENSE TO USE SUCH DATA
ONLY AS NECESSARY TO PERFORM THE
SERVICES SET FORTH IN THIS AGREEMENT
DURING THE TERM. ALL DATA CREATED BY
END USERS DURING THE COURSE OF THEIR USE
OF THE SOFTWARE ("END USER DATA") WILL BE
LICENSED TO PASSPORT ON THE TERMS SET
FORTH IN PASSPORT'S END-USER PRIVACY
POLICY, AND PROVIDER WILL HAVE THE RIGHT
TO ACCESS AND USE END USER DATA DURING
THE TERM OF THIS AGREEMENT ONLY AS
NECESSARY TO PERFORM THE SERVICES SET
FORTH IN THIS AGREEMENT DURING THE TERM.
AFTER THE EXPIRATION OR TERMINATION OF
THIS AGREEMENT, PASSPORT WILL PROVIDE A
MACHINE READABLE COPY OF END USER DATA
TO PROVIDER AS NECESSARY TO INFORM
USERS OF THE AVAILABILITY OF SERVICES
OFFERED TO A SUBSEQUENT REPLACEMENT
VENDOR.
INTELLECTUAL PROPERTY
(a) PROVIDER HEREBY ACQUIRES A
REVOCABLE, NON-EXCLUSIVE,
NON -ASSIGNABLE, NON-
TRANSFERRABLE, AND NON-
SUBLEASEABLE RIGHT AND
LICENSE TO USE AND ACCESS THE
SOFTWARE FOR ITS INTERNAL
BUSINESS PURPOSES. ALL
INTELLECTUAL PROPERTY RIGHTS
INCLUDING, WITHOUT LIMITATION,
TRADE NAMES, SOURCE CODE,
TRADEMARKS, COPYRIGHTS,
PATENTS, AND TRADE SECRETS,
NOT EXPLICITLY GRANTED TO
PROVIDER IN THIS AGREEMENT
ARE RESERVED TO PASSPORT.
(b) PROVIDER WILL NOT, DIRECTLY,
INDIRECTLY, ALONE,
OR WITH ANOTHER PARTY, (1)
COPY, DISASSEMBLE, REVERSE
ENGINEER, OR DECOMPILE THE
SOFTWARE OR ANY SUBPART
THEREOF; (II) MODIFY, CREATE
DERIVATIVE WORKS BASED UPON,
OR TRANSLATE THE SOFTWARE OR
SOURCE CODE; (III) TRANSFER OR
OTHERWISE GRANT ANY RIGHTS IN
THE SOFTWARE OR SOURCE CODE
IN ANY FORM TO ANY OTHER
PARTY; (IV) ATTEMPT TO DO ANY
OF THE FOREGOING OR CAUSE OR
PERMIT ANY THIRD PARTY TO DO
OR ATTEMPT TO DO ANY OF THE
FOREGOING, EXCEPT AS
EXPRESSLY PERMITTED
HEREUNDER.
TECHNICAL SUPPORT
PROVIDER WILL FIELD ALL SUPPORT
CALLS AND EMAILS FROM END-USERS.
PASSPORT WILL PROVIDE SECOND TIER
TECHNICAL SUPPORT TO END USERS WHERE
PROVIDER'S SUPPORT REPRESENTATIVE IS
UNABLE TO PROVIDE A SATISFACTORY
RESOLUTION TO AN END-USER SUPPORT
INQUIRY AND REQUIRES ESCALATED
TECHNICAL SUPPORT FROM PASSPORT. IN THIS
CAPACITY AS PROVIDER'S ESCALATED
TECHNICAL SUPPORT RESOURCE, PASSPORT
WILL PROVIDE LIVE TELEPHONE SUPPORT
MONDAY -FRIDAY FROM 6AM-4PM PST.
PASSPORT WILL ALSO PROVIDE EMAIL
SUPPORT. ALL EMAIL SUPPORT INQUIRIES WILL
BE ANSWERED WITHIN TWO (2) HOURS DURING
BUSINESS HOURS AND TWENTY-FOUR (24)
HOURS DURING NON -BUSINESS HOURS. THESE
HOURS APPLY ON ALL PASSPORT HOLIDAYS.
CUSTOM DESIGN REVISION FEES
FOR ANY CUSTOM DESIGN OR CONTENT
ALTERATION SERVICES REQUESTED BY
PROVIDER, INCLUDING WITHOUT LIMITATION,
CUSTOMIZED SIGNAGE, CUSTOMIZED DECALS,
CUSTOMIZED LOGOS, CUSTOMIZED WEBSITE
CONTENT, CUSTOMIZED NOTIFICATION LETTER
LANGUAGE, CUSTOMIZED PARKING CITATION
LANGUAGE, OR ANY CUSTOM DESIGN WITHIN
THE SOFTWARE PLATFORM, PASSPORT WILL
PROVIDE A PROOF OF CONCEPT DESIGN. FOR NO
ADDITIONAL FEE, PASSPORT WILL ALSO
PROVIDE ONE REVISED VERSION OF THAT
INITIAL PROOF OF CONCEPT BASED ON
PROVIDER'S INPUT. PROVIDER WILL PAY A ONE
THOUSAND DOLLAR ($1,000.00) FEE PER PROOF
OF CONCEPT REVISION FOR EACH REQUESTED
REVISION THEREAFTER. AFTER PROVIDER'S
ACCEPTANCE OF THE PROOF OF CONCEPT,
PASSPORT WILL CREATE A FINAL DESIGN
DRAFT. FOR NO ADDITIONAL FEE, PASSPORT
WILL ALSO PROVIDE ONE REVISED VERSION OF
THAT FINAL DESIGN DRAFT BASED ON
PROVIDER'S INPUT. PROVIDER WILL PAY A ONE
THOUSAND DOLLAR ($1,000.00) FEE PER FINAL
DESIGN REVISION THEREAFTER. THE FEES IN
THIS SECTION WILL NOT NEGATE THE
APPLICABILITY OF ANY OTHER FEE PAYABLE
FOR CUSTOM DESIGN SERVICES, INCLUDING
ANY PRIVATE LABEL FEES, CUSTOM
DEVELOPMENT FEES, OR CUSTOM SIGNAGE
FEES,
TRANSLATION SERVICES
IF PROVIDER REQUESTS THAT
PASSPORT PROVIDE A VERSION OF ANY
MOBILE APPLICATION OR MOBILE WEB
APPLICATION INCLUDED IN THE SOFTWARE IN
ANY LANGUAGE OTHER THAN ENGLISH,
PROVIDER WILL PAY A ONE THOUSAND FIVE
HUNDRED DOLLAR FEE ($1,500.00) FOR
PASSPORT TO PERFORM OR SUBCONTRACT THE
NECESSARY TRANSLATION SERVICES.
PASSPORT WILL PROVIDE AN INITIAL VERSION
OF ALL TRANSLATED TEXT. FOR NO
ADDITIONAL FEE, PASSPORT WILL ALSO
PROVIDE ONE REVISED VERSION OF SUCH
TRANSLATION BASED ON PROVIDER'S INPUT.
PROVIDER WILL PAY A ONE THOUSAND
DOLLAR ($1,000.00) FEE PER REVISION FOR
EACH REQUESTED REVISION THEREAFTER.
WALLET SERVICES
PROVIDER MAY ELECT TO PROVIDE
PARKING CUSTOMERS WITH A VIRTUAL
WALLET (A "WALLET PROGRAM"). WITH A
WALLET PROGRAM, PARKING CUSTOMERS
WOULD BE REQUIRED TO PREPAY FUNDS INTO
A WALLET ACCOUNT FOR THE PAYMENT OF
FUTURE PARKING FEES AND/OR TRANSIT
TICKET FARES.
MARKETING SERVICES
THE MARKETING AND PUBLIC
RELATIONS SERVICES AND MATERIALS, IF ANY,
PROVIDED BY PASSPORT AND ANY OPTIONAL
MARKETING SERVICES, INCLUDING
ASSOCIATED FEES, CAN BE FOUND IN EXHIBIT
C OF THIS AGREEMENT. THE MARKETING
SERVICES TO BE PERFORMED BY PROVIDER AT
PROVIDER'S SOLE COST, IF ANY, CAN BE FOUND
IN EXHIBIT D.
PUBLIC RELATIONS COOPERATION
THE PARTIES HEREBY AGREE THAT
EACH PARTY WILL HAVE THE RIGHT TO
DISCUSS AND DISPLAY QUALITATIVE
INFORMATION REGARDING THE PARTIES'
RELATIONSHIP. THE PARTIES FURTHER AGREE
THAT PRIOR TO ANY DISCLOSURE OF ANY
QUANTITATIVE INFORMATION REGARDING
THE PARTIES' RELATIONSHIP, THE
UTILIZATION OF THE SOFTWARE, OR ANY
OTHER ELEMENT OF THE PARTIES'
RELATIONSHIP, THE DISCLOSING PARTY MUST
OBTAIN THE WRITTEN PERMISSION OF THE
NON -DISCLOSING PARTY, EXCEPT WITH
RESPECT TO ANY INFORMATION THAT MUST BE
DISCLOSED BY LAW, INCLUDING ANY OPEN
RECORDS LAW, OPEN MEETINGS LAW, OR ANY
OTHER LOCAL PUBLIC DISCLOSURE LAW
APPLICABLE TO PROVIDER, IN WHICH CASE
PROVIDER NEED NOT OBTAIN THE WRITTEN
PERMISSION OF PASSPORT AS TO THE
DISCLOSURE OF SUCH INFORMATION ONLY.
PAYMENT GATEWAY
PROVIDER MUST SUPPLY A PAYMENT
GATEWAY FOR THE PAYMENT OF ALL FEES BY
END USERS, AND PROVIDER WILL BEAR ALL
COSTS ASSOCIATED WITH PROVIDING SUCH
PAYMENT GATEWAY, INCLUDING ALL PER
TRANSACTION COSTS. PASSPORT CAN PROVIDE
SUCH GATEWAY SERVICES TO PROVIDER.
EXHIBIT B CONTAINS A LIST OF PAYMENT
GATEWAYS SUPPORTED BY PASSPORT. FOR
ALL OTHER PAYMENT GATEWAYS, PASSPORT
WILL CHARGE A TWO HUNDRED AND FIFTY
DOLLAR ($250.00) PER DEVELOPMENT HOUR
NECESSARY TO PERFORM NECESSARY
INTEGRATIONS.
REFUNDS AND DISCOUNTS
PASSPORT AGREES TO FOREGO OR
RETURN, AS APPLICABLE, ITS PER
TRANSACTION FEES FOR ANY REFUND
GRANTED BY PROVIDER. PROVIDER WILL BE
RESPONSIBLE FOR REIMBURSING PASSPORT
FOR ALL MERCHANT PROCESSING FEES,
INCLUDING WITHOUT LIMITATION PAYMENT
GATEWAY FEES, SETTLEMENT FEES, AND
INTERCHANGE REIMBURSEMENT FEES, IF ANY,
INCURRED BY PASSPORT FOR ALL
TRANSACTIONS, INCLUDING REFUNDED
TRANSACTIONS.
INVOICING
PASSPORT WILL SEND MONTHLY
INVOICES TO PROVIDER BY THE TENTH DAY OF
EACH MONTH FOR ALL FEES PAYABLE TO
PASSPORT THAT ACCRUED DURING THE
PRECEDING MONTH. IF PROVIDER FAILS TO
REMIT PAYMENT ACCORDING TO SUCH
INVOICES WITHIN THIRTY (30) DAYS AFTER
PROVIDER RECEIVES THE INVOICE, PASSPORT
WILL HAVE THE RIGHT TO SUSPEND
PROVIDER'S ACCESS TO THE SOFTWARE.
SCHEDULED MAINTENANCE
IF PASSPORT PLANS TO PERFORM ANY
SCHEDULED MAINTENANCE DURING BUSINESS
HOURS, PASSPORT WILL PROVIDE NOTICE TO
PROVIDER AT LEAST TWENTY-FOUR (24) HOURS
IN ADVANCE OF THE COMMENCEMENT OF
SUCH SCHEDULED MAINTENANCE. FOR THE
PURPOSE OF THIS SECTION, "BUSINESS HOURS"
MEANS MONDAY THROUGH FRIDAY BETWEEN
9 AM EASTERN TIME AND 5 PM EASTERN TIME.
PRODUCT UPDATES
ANY SYSTEM -WIDE IMPROVEMENTS OR
MODIFICATIONS MADE BY PASSPORT TO THE
SOFTWARE PLATFORM WILL BE PROMPTLY
PROVIDED TO PROVIDER AT NO ADDITIONAL
CHARGE AND WILL AUTOMATICALLY BE
SUBJECT TO THE TERMS OF THIS AGREEMENT.
THE PROVIDER MAY REQUEST NEW FEATURES
OR FUNCTIONALITY TO BE BUILT INTO THE
SYSTEM, AND, TO THE EXTENT THAT PASSPORT
PLANS TO INCORPORATE SUCH REQUESTED
NEW FEATURES OR FUNCTIONALITY INTO THE
SOFTWARE, PASSPORT WILL DEVELOP SUCH
FEATURES AND FUNCTIONALITY AT NO COST
TO THE PROVIDER. IF THE PROVIDER DESIRES
TO EXPEDITE SUCH DEVELOPMENT, PASSPORT
MAY, AT ITS SOLE DISCRETION, CHARGE
PROVIDER AN EXPEDITE FEE OF TWO HUNDRED
DOLLARS ($200.00) PER DEVELOPMENT HOUR
NECESSARY TO DEVELOP THE REQUESTED
FEATURES OR FUNCTIONALITY. IF THE
PROVIDER'S REQUESTED FEATURES OR
FUNCTIONALITY ARE CREATED FOR THE
PROVIDER'S USE AND PASSPORT DOES NOT
PLAN TO INCORPORATE SUCH REQUESTED
FEATURES INTO THE SOFTWARE, PASSPORT
MAY, AT ITS SOLE DISCRETION, CHARGE
PROVIDER CUSTOM DEVELOPMENT FEE OF
TWO HUNDRED AND FIFTY DOLLARS ($250.00)
PER HOUR FOR THE DEVELOPMENT OF SUCH
FEATURES OR FUNCTIONALITY. IN ADDITION
OR IN LIEU OF THE FEES SET FORTH IN THIS
SECTION, PASSPORT MAY ESTABLISH A
MONTHLY SOFTWARE LICENSE OR
MAINTENANCE FEE TO BE MUTUALLY AGREED
BETWEEN THE PARTIES. THE ADDITION OF ANY
FEES, INCLUDING EXPEDITE FEES, SOFTWARE
DEVELOPMENT FEES, SOFTWARE
MAINTENANCE FEES, OR SOFTWARE LICENSE
FEES WILL BE SET FORTH IN A WRITTEN
ADDENDUM TO THIS AGREEMENT THAT THE
PARTIES MUST EXECUTE AND MUST CONTAIN
AT LEAST THE SCOPE OF THE WORK TO BE
PERFORMED BY PASSPORT AND THE FEES
ASSOCIATED THEREWITH. ANY ONE-TIME FEES
ASSOCIATED WITH ANY REQUESTED WORK
MUST BE PAID IN ADVANCE OF PASSPORT
BEGINNING SUCH WORK.
THE PARTIES AGREE THAT PROVIDER
MAY REQUEST A CHANGE TO THE SOFTWARE
THAT INVOLVES THE ADDITION OF
FUNCTIONALITY ALREADY AVAILABLE AS A
COMPONENT OF ANOTHER PRODUCT WITHIN
PASSPORT'S GENERAL TECHNOLOGY
PLATFORM, INCLUDING WITHOUT LIMITATION
CITATION MANAGEMENT TECHNOLOGY, AND
IN THE EVENT THAT PASSPORT RECEIVES SUCH
A REQUEST FROM PROVIDER, PASSPORT WILL
PROVIDE AN ADDENDUM HERETO INCLUDING
THE INCREASE IN FEES ATTRIBUTABLE TO THE
ADDITION OF SUCH ADDITIONAL
FUNCTIONALITY AND ANY APPLICABLE
SERVICE OR LEGAL TERMS. PROVIDER AGREES
THAT IT HAS THE RIGHT TO MAKE SUCH A
REQUEST AND EXECUTE SUCH ADDENDUM
WITHOUT THE NEED FOR FURTHER
COMPETITIVE BIDDING.
PIGGYBACK PROCUREMENTS
PROVIDER WILL ALLOW ANY PUBLIC
AGENCY LOCATED IN THE UNITED STATES TO
PURCHASE, AND PASSPORT TO OFFER TO THOSE
PUBLIC AGENCIES, A SUBSTANTIALLY SIMILAR
MOBILE PAY PROGRAM AT THE SAME PRICE
AND UNDER THE SAME CONDITIONS AGREED
UPON IN THIS AGREEMENT BETWEEN THE
PARTIES, WITHOUT ANY FURTHER
COMPETITIVE BIDDING, TO THE EXTENT
PERMITTED BY LAW. EACH PUBLIC AGENCY
WILL EXECUTE ITS OWN CONTRACT WITH
PASSPORT FOR ITS REQUIREMENTS, FUNDING
SUCH SERVICE OUT OF ITS OWN FUNDING
SOURCES. PROVIDER SHALL NOT INCUR ANY
FINANCIAL RESPONSIBILITY IN CONNECTION
WITH PASSPORT'S CONTRACTING WITH SUCH
OTHER PUBLIC AGENCIES FOR SUCH SERVICES.
CAPACITY
PROVIDER REPRESENTS AND
WARRANTS THAT IT HAS OBTAINED OR WILL
OBTAIN ALL LICENSES AND AUTHORIZATIONS
NECESSARY TO LICENSE THE SOFTWARE.
PROVIDER FURTHER REPRESENTS AND
WARRANTS THAT THE SIGNER OF THIS
DOCUMENT HAS THE AUTHORITY TO BIND
PROVIDER TO THE TERMS HEREIN.
CONFIDENTIALITY.
PROVIDER AND PASSPORT AGREE TO
TREAT ALL INFORMATION FURNISHED, OR TO
BE FURNISHED, BY OR ON BEHALF OF THE
OTHER PARTY AND INFORMATION ANALYSES,
SUMMARIES AND OTHER WORK PRODUCT
DERIVED FROM SUCH INFORMATION
(COLLECTIVELY, THE "INFORMATION") IN
ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION AND TO TAKE, OR ABSTAIN FROM
TAKING, ALL ACTIONS SET FORTH HEREIN. THE
INFORMATION WILL BE USED SOLELY IN
CONNECTION WITH THE CONSUMMATION OF
THIS AGREEMENT BETWEEN PASSPORT AND
PROVIDER AND PROVIDER'S USE AND
OPERATION OF THE SOFTWARE, AND WILL BE
KEPT CONFIDENTIAL BY THE PROVIDER AND
PASSPORT AND EACH PARTY'S OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES,
AGENTS AND ADVISORS; PROVIDED, HOWEVER,
THAT
(a) ANY OF SUCH INFORMATION MAY
BE DISCLOSED TO OFFICERS,
DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS AND
ADVISORS WHO NEED TO KNOW
SUCH INFORMATION TO EXECUTE
THIS AGREEMENT AND/OR
EFFECTIVELY USE THE SOFTWARE
(SO LONG AS SUCH PERSONS ONLY
USE OR DISCLOSE SUCH
INFORMATION IN THE MANNER
PERMITTED IN THIS SECTION), AND
(b) SUCH INFORMATION MAY BE
DISCLOSED TO THE EXTENT
REQUIRED BY LAW, INCLUDING
ANY OPEN RECORDS LAW, OPEN
MEETINGS LAW, OR ANY OTHER
LOCAL PUBLIC DISCLOSURE LAW
APPLICABLE TO PROVIDER, AND
(C) UPON THE REQUEST OF PROVIDER
OR PASSPORT, THE OTHER PARTY
WILL DESTROY OR RETURN TO
PASSPORT ALL MATERIAL
CONTAINING OR REFLECTING THE
INFORMATION, TO THE EXTENT
PERMITTED BY LAW.
FORCE MAJEURE
NEITHER PASSPORT NOR PROVIDER
WILL BE HELD LIABLE FOR ANY DELAY OR
OMISSION IN PERFORMANCE OF THEIR DUTIES
UNDER THIS AGREEMENT CAUSED BY CAUSES
BEYOND THEIR REASONABLE CONTROL,
INCLUDING WITHOUT LIMITATION, ACTS OF
GOD, ACTS OF THE PUBLIC ENEMY, FIRES,
NATURAL DISASTERS, WARS, OR RIOTS (EACH A
"FORCE MAJEURE EVENT").
EFFECT OF TERMINATION
IN THE EVENT THAT THIS AGREEMENT
IS TERMINATED BY EITHER PARTY AS SET
FORTH ABOVE, PROVIDER WILL PAY ALL FEES
ESTABLISHED ABOVE FOR SERVICES
RENDERED BY PASSPORT PRIOR TO
TERMINATION.
DISCLAIMER
THE SOFTWARE IS PROVIDED TO
PROVIDER BY PASSPORT "AS IS" AND WITH
ALL FAULTS. PROVIDER ACKNOWLEDGES
AND AGREES THAT PASSPORT BEARS NO
LIABILITY FOR ANY ERROR, OMISSION,
DEFECT, DEFICIENCY, OR NONCONFORMITY
WITHIN THE SOFTWARE EXCEPT AS
EXPLICITLY PROVIDED IN THIS AGREEMENT.
OTHER THAN AS SPECIFICALLY SET FORTH
HEREIN, NEITHER OF THE PARTIES MAKES
ANY REPRESENTATIONS, WARRANTIES, OR
GUARANTEES, EXPRESS OR IMPLIED,
DIRECTLY OR INDIRECTLY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF
CONDITION, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE OR
USE, WITH RESPECT TO, ARISING OUT OF, OR
IN CONNECTION WITH THE SOFTWARE AND
RELATED SERVICES TO BE PERFORMED
PURSUANT TO THIS AGREEMENT.
SEVERABILITY.
WHENEVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT WILL BE
INTERPRETED AND CONSTRUED TO BE VALID
UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THE AGREEMENT IS FOUND TO
VIOLATE APPLICABLE LAW, THE VIOLATING
PROVISION WILL BE INEFFECTIVE ONLY TO THE
EXTENT THAT IT VIOLATES THE LAW, WITHOUT
INVALIDATING THE REMAINDER OF THE
SECTION CONTAINING THE VIOLATING
PROVISION OR ANY OTHER PROVISIONS OR
SECTIONS OF THIS AGREEMENT.
ASSIGNMENT
THIS AGREEMENT AND ALL OF ITS
PROVISIONS WILL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND
THEIR RESPECTIVE SUCCESSORS AND
ASSIGNEES. NEITHER PASSPORT NOR PROVIDER
MAY ASSIGN ANY RIGHTS, INTERESTS, OR
OBLIGATIONS HEREUNDER WITHOUT PRIOR
WRITTEN CONSENT OF THE OTHER PARTY,
PROVIDED, HOWEVER, THAT PASSPORT MAY,
WITHOUT SUCH WRITTEN CONSENT, ASSIGN
THIS AGREEMENT AND ITS RIGHTS AND
DELEGATE ITS OBLIGATIONS HEREUNDER IN
CONNECTION WITH THE TRANSFER OR SALE OF
ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR
BUSINESS RELATED TO THIS AGREEMENT, OR
IN THE EVENT OF ITS MERGER,
CONSOLIDATION, CHANGE IN CONTROL OR
SIMILAR TRANSACTION. ANY PERMITTED
ASSIGNEE SHALL ASSUME ALL ASSIGNED
OBLIGATIONS OF ITS ASSIGNOR UNDER THIS
AGREEMENT. ANY PURPORTED ASSIGNMENT IN
VIOLATION OF THIS SECTION SHALL BE VOID
AND OF NO EFFECT.
CONTRACTUAL SILENCE
IF THE AGREEMENT FAILS TO ADDRESS
A CONDITION, OBLIGATION, BENEFIT, OR
OTHER TERM NECESSARY TO SUFFICIENTLY
DEFINE THE RELATIONSHIP BETWEEN THE
PARTIES OR RESOLVE A DISAGREEMENT OR
CONFLICT REGARDING THE INTERPRETATION
OR CONSTRUCTION OF THIS AGREEMENT, THE
PARTIES AGREE TO REASONABLY COOPERATE
TO DRAFT A MUTUALLY AGREEABLE
AMENDMENT THAT CLARIFIES THE DUTIES,
RIGHTS, AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT.
AMENDMENTS
THE PARTIES MAY NOT AMEND OR
MODIFY THIS AGREEMENT EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY THE
PARTIES (AN "AMENDMENT").
CURRENCY
UNLESS OTHERWISE SPECIFIED IN THE
AGREEMENT, ALL FEES AND OTHER
MONETARY AMOUNTS ARE IN UNITED STATES
DOLLARS.
WHERE ANY MONETARY AMOUNT IN
THE CONTRACT 1S EXPLICITLY STATED IN A
CURRENCY OTHER THAN UNITED STATES
DOLLARS, THE EXCHANGE RATE WILL BE
FIXED AT THE FOREIGN EXCHANGE RATE
PUBLISHED BY THE UNITED STATES FEDERAL
RESERVE FOR THE EFFECTIVE DATE (THE
"INITIAL EXCHANGE RATE"). 1N THE EVENT
THAT THE APPLICABLE EXCHANGE RATE
PUBLISHED BY THE UNITED STATES FEDERAL
RESERVE FOR ANY DAY DURING THE TERM
(THE "CURRENT INTEREST RATE") DEVIATES BY
MORE THAN TEN PERCENT (10%) FROM THE
INITIAL EXCHANGE RATE, THE PARTIES AGREE
THAT THE INITIAL RATE WILL BE ADJUSTED BY
FIVE PERCENTAGE TOWARDS THE CURRENT
INTEREST RATE. THE EXCHANGE RATE UNDER
THIS AGREEMENT AFTER SUCH ADJUSTMENT
(THE "ADJUSTED RATE") WILL REMAIN IN
EFFECT UNLESS AND UNTIL THE CURRENT
INTEREST RATE AND THE ADJUSTED INTEREST
RATE DIFFER BY MORE THAN TEN PERCENT
(10%), IN WHICH CASE THE ADJUSTED RATE
WILL BE ADJUSTED ACCORDING TO THE
PROCESS SET FORTH ABOVE FOR ADJUSTING
THE INITIAL EXCHANGE RATE.
INDEPENDENT CONTRACTOR
PASSPORT IS AN INDEPENDENT
CONTRACTOR AND NOT AN AGENT OR
EMPLOYEE OF PROVIDER. NO AGENCY,
PARTNERSHIP, FRANCHISE, JOINT VENTURE, OR
EMPLOYMENT RELATIONSHIP EXISTS
BETWEEN PASSPORT AND PROVIDER.
PASSPORT'S EMPLOYEES AND AGENTS WILL
NOT BE EMPLOYEES OR AGENTS OF PROVIDER.
PASSPORT SHALL BE FULLY AND SOLELY
RESPONSIBLE FOR THE SUPERVISION,
CONTROL, PERFORMANCE, COMPENSATION,
BENEFITS (INCLUDING, WITHOUT LIMITATION,
ALL FORMS OF INSURANCE) WITHHOLDINGS,
HEALTH AND SAFETY OF ALL OF ITS
EMPLOYEES AND AGENTS. PROVIDER WILL
NOT BE RESPONSIBLE OR LIABLE FOR ANY
WITHHOLDING TAXES OR CONTRIBUTIONS TO
STATE WORKER'S COMPENSATION,
UNEMPLOYMENT OR OTHER FUNDS OR
PROGRAMS.
LIMITATION OF LIABILITY
IN NO EVENT WILL PASSPORT OR
PROVIDER BE LIABLE TO THE OTHER FOR
ANY LOST PROFITS, LOST SAVINGS, OR
INCIDENTAL, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF
PROVIDER USE OR INABILITY TO USE THE
PRODUCT OR THE BREACH OF THIS
AGREEMENT, EVEN IF PASSPORT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
INDEMNIFICATION FOR PROFESSIONAL
LIABILITY
TO THE FULLEST EXTENT PERMITTED
BY LAW, PASSPORT SHALL INDEMNIFY,
PROTECT, DEFEND AND HOLD HARMLESS
PROVIDER AND ANY AND ALL OF ITS
OFFICIALS, EMPLOYEES AND AGENTS
("INDEMNIFIED PARTIES") FROM AND AGAINST
ANY AND ALL LOSSES, LIABILITIES, DAMAGES,
COSTS AND EXPENSES, INCLUDING
ATTORNEY'S FEES, WHICH ARISE OUT OF THE
NEGLIGENCE, RECKLESSNESS, OR WILLFUL
MISCONDUCT OF PASSPORT, PROVIDED,
HOWEVER, THAT PASSPORT'S DUTY TO
INDEMNIFY AND HOLD HARMLESS SHALL NOT
INCLUDE ANY CLAIMS OR LIABILITY ARISING
FROM THE ESTABLISHED SOLE NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE CITY, ITS
AGENTS, OFFICERS OR EMPLOYEES OR FROM
THE ESTABLISHED NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY THIRD PARTY.
NOTICES
ALL NOTICES, CONSENTS, AND
COMMUNICATIONS REQUIRED HEREUNDER
SHALL BE GIVEN IN WRITING AND DELIVERED
VIA ELECTRONIC MAIL OR MAIL, SHALL BE
DEEMED TO BE GIVEN UPON RECEIPT THEREOF,
AND SHALL BE SENT TO THE ADDRESS BELOW:
PASSPORT
1300 S. MINT STREET
SUITE 200
CHARLOTTE, NC 28203
EMAIL: ,IASON.IDI_I-Bl r PASSPORTINC.COM
ENTIRE AGREEMENT
THIS AGREEMENT REPRESENTS THE
FULL AND COMPLETE UNDERSTANDING OF THE
PARTIES AND SUPERSEDES ANY AND ALL
PRIOR AGREEMENTS.
EXHIBIT B
SUPPORTED PAYMENT GATEWAYS
1. Authorize.net
2. Converge
• Elavon Gateway Product
3. FirstData Direct Connect
4. Internet Secure
5. Moneris
6. Point and Pay
EXHIBIT C
MARKETING SERVICES PROVIDED BY PASSPORT
N/A
EXHIBIT D
MARKETING SERVICES PROVIDED BY PROVIDER
N/A