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HomeMy WebLinkAboutResolution - 2009-R0024 - End User Contract - Ares Corportation - SYRIS Syndrome Reporting System - 01_22_2009Resolution No. 2009-R0024 January 22, 2009 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute a software subscription order form, End User Contract and any associated documents with Ares Corporation of Albuquerque, New Mexico, for the SYRIS syndrome reporting system (version 1.0) for the Health Department, which purchase order form, End User Contract and any associated documents are attached hereto as Exhibit A and made a part hereof for all intents and purposes. Passed by the City Council this 22nd day of January , 20N 9 TOM MARTIN, MAYOR ATTEST: Rebec a Garza, City Secretary APPROVED AS TO CONTENT: ancy Hane, Executive Dieor/Health APPROVERLAS TO FO D n Vandiver, City Attorney D Dres/AresCorp-1-[DCon09 Res January 9, 2009 Remit orders to: ARES Corporation Remit Payments to: ARES Corporation rj r �! r �- A i __`� D B51 University SE, Suite 100 Albuquerque, NM 87106 Tel: 505-272.7102 Accounts Receivable 1440 Chapin Avenue, Ste. 390 Burlingame, CA 94010 C O R P Q R A T I 0 N Fax: 505-272-7238 Tel: 650-401-7100 Fax: 650-401-7101 Cust. No: SYRIS-04-LDH-001 Company: City of Lubbock Health Department Address 1: PO Box 2548 Address 2: 1902 Texas Avenue City: Lubbock State: TX Country: US Zip Code: 79408 Contact: Ms. Beckie Brawley Phone: 806-775-2941 E-Mail: bbrawley@mylubbock.us Fax:806-775-3184 Resolution No. 2009—R0024 Proposal Date: 6 January, 2009 Proposal #: LDH-004-090106 Sales Rep: Anders Corr Telephone: 505-272-7102 E-Mail: acorrgarescorporation.com Item Description City Unit Unit Price TOTAL 1 SYRIS License for City of Lubbock Health Department 1 $35,883.54 12-month license covering March 1, 2009 to February 28, 2010. Price is calculated annually at 15 cents per capita plus a 10% support fee, based on population of 217,476 as of 2009. 20% Discount ($7,176.71) TM This proposal is for SYRIS Syndrome Reporting Information System (v 1.0). Services for custom programming and/or training, if required, are to be proposed separately. Terms & Conditions Subtotal $28,706.83 Shipping & Handling $0.00 Attach completed Subscription Order Form / Agreement and payment. System use subject to acceptance of End User License Agreement. Taxes $0.00 Taxes waived as exemption certificate is on file. I TOTAL L $28,706.83 Pa ment Term: Net 30 unless otherwise stated in any attached order form ARES Authorization: Name: Kathryn Naassan Title: Senior Vice President Date: _ I I b 'O j 1 t j Signature: Client Acceptance: Name: Tom Martin Title: Mayor, City of Lubbock Date: January 22, 2009 Signature: c / Corporate Headquarters 1440 Chapin Avenue, Sie 390 Burlingame, CA 94010 Tel: 650-401-7100 Fax: 650-401.7101 Approved as to Content: We look forward to doing business with you. ATTEST ebec a Garza, %ity Se . Approved as to form Ar rRJ C 0 R P C R A T 1 0 N Submit with ARES Proposal Form to: ARES Corporation 851 University SE, Suite 100 Albuqucrque, NM 87106 Tel: 505-272-7102 Fax: 505-272-7238 Subscription Order Form SYRISTM Syndrome Reporting Information System (v 1.0) (Public Health Officials 1 Organization Designees) Name of Subscribing Public Health Official or Public Health Organization ("Subscriber"): City of Lubbock Health Department Size of population in Public Health jurisdiction 217,476 as of January, 2009 ❑ Single End User Subscription Period (12 months): $ Phone #: Email address: ®Organization Wide (Requires designation of Administrator and authorized users below) Subscription Subscription Period (12 months): $28,706.83 Administrator Contact Name: Beckie Brawley ❑ Initial Phone M 806-776-2941 ® Renewal Email address: bbrawley@mylubbock.us Designated End Users (Attach an additional sheet, if necessary) Total Due to continue subscription $28,706.83 SUBSCRIPTION AGREEMENT Due Date: February 28, 2009 Payment Terms: Payment (non-refundable) is required by the due date. Prepayment is required with renewal Commencement: System service continues without interruption if payment is received prior to the due date If payment is received after the due date, service will resume within one week of payment. Term! nationlCancell ation: Fixed term subscription is terminated upon expiration of the pre -paid period unless renewed within thirty (30) days prior to expiration. The expiration date for the renewal subscription is one year after the due date and thereafter annually on February 28 (or 291" on leap year), if the subscription is renewed. The subscription may be cancelled upon written notice of cancellation. There are no refunds for early cancellation. Additional Terms: Ali orders are non -binding until approval by ARES Corporation, in its sole discretion. A subscription is personal to the identified Subscriber. Affiliates and other related companies require a separate subscription SYRIS Syndrome Reporting Information System (v 1.5) Order Form (Public Health Officials 1 Organization Designees) Page 1 of 2 + All End User's use of the SYRIS Software and SYRIS Syndrome Reporting Information System is subject to the terms and conditions of the End User License Agreement supplied with the SYRIS Software. . All SYRIS software, subscription services and related data and information are provided "AS IS" without representation or warranty of any kind. All implied warranties of merchantability, fitness for a particular purpose, title and non -infringement are expressly disclaimed. IN NO EVENT SHALL ARES CORPORATION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR LOST PROFITS) ARISING OUT OF OR RELATED TO THE SYRIS SOFTWARE, SERVICE, DATA OR INFORMATION REPORTED, EVEN IF ARES CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ARES CORPORATION TOTAL CUMULATIVE LIABILITY TO THE ABOVE IDENTIFIED SUBCRIBER AND ALL OTHER END USERS (UNDER ANY CAUSE OF ACTION OR LEGAL THEORY) EXCEED THE ACTUAL SUBSCRIPTION FEES PAID BY SUBSCRIBER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEEDING THE EVENT(S) GIVING RISE TO THE LIABILITY. . This Subscription Agreement and the End User License Agreement constitutes the entire agreement of the parties. This Agreement shall be governed by the laws of the State of Texas without application of conflicts of law principles. The United Nations Convention on the International Sale of Goods shall not apply and is hereby excluded. No provision may be waived or amended unless in writing signed by the party to be bound. All disputes arising or related hereto shall be brought in a court of competent jurisdiction located in Lubbock County, Texas The prevailing party in any dispute arising from or related to this Agreement or the use of the SYRIS software or system shall be entitled to recover its reasonable attorneys fees and costs. Neither this Agreement nor any rights hereunder may be assigned by Subscriber, without the express written consent of ARES Corporation. Agreed: City of Lubbock Health Department Signature:.d��f� Name: Tam Martin Title: Mayor, City of Lubbock Date: January 22, 2009 Rev. 01-06-09 ATTEST: 4Ree�calGarza, City Secreta Approved as to Content: ARES Corporation Signature:�rr"` Name: Title: S / Date: '1z/o�i Approved as to farm: S SYRIS Syndrome Reporting Information System (v 1.5) Order Form (Public Health Officials 1 Organization Designees) Page 2 of 2 Resolution No. 2009-R0024 f4\a v t ��11lr 6�Jlh aj This is an Agreement between you and ARES Corporation ("ARES"). the provider of this interface software ("Software") and the SYRIS Syndrome Reporting Information System, including its related databases, compilations of aggregated data and documentation (the "SYRIS System"). This Agreement governs the teens and conditions by which you may use the Software and access and use the SYRIS System. By clicking on the "I Accept" button and proceeding to use the Software, you represent that you or your employer has a valid and existing SYRIS Subscription Agreement with ARES to access and use the SYRIS System and that you accept and agree to be bound to the terms and conditions of this Agreement. If at any time you do not accept and agree to the terms and conditions of this Agreement, do not proceed to use the Software and permanently erase all copies of the Software in your possession and/or control. 1. License Subject to the terms and conditions of this Agreement and for the effective term of the respective SYRIS Subscription Agreement, ARES grants to you a non-exclusive, non -transferable, personal right and license to (i) use this Software on a single microcomputer that is owned. leased or otherwise controlled by the party holding a valid and existing SYRIS Subscription Agreement and (ii) access and use the SYRIS System using this Software and the personal User ID and password issued to you. This license grant confers only a limited, personal right to use this Software and the SYRIS System as provided by ARES and for no other purpose. All rights not herein expressly granted to you are hereby expressly reserved to ARES. No right, title or interest to any trademark, service mark, trade name or domain name of ARES is granted under this Agreement. 2. Confidentiality You agree that you will keep your personal password confidential and not allow any other person to use your personal User ID and password to access the SYRIS System. You agree to inunediately notify ARES of any suspected disclosure of your personal password to an unauthorized person. 3. Restrictions You agree not to directly or indirectly (i) redistribute, encumber, sell, rent, lease, lend, sub -lease, sublicense or otherwise transfer this Software or the right to access and use the SYRIS System to any third party without the express written consent of ARES (ii) remove or obscure ARES' copyright, trademark and other proprietary rights notices, legends, symbols or labels; (iii) alter, modify, decompile, disassemble, create any derivative works of the Software, the SYRIS System, including customization, translation or localization, or reverse engineer or otherwise attempt to derive the source code for the Software or System (except as expressly permitted by local law); (iv) utilize the Software or the SYRIS System in connection with any service bureau or time-sharing system or to provide processing services for any third party; (v) allow any other person to access and use this Software and/or the SYRIS System via a LAN. WAN or other network of computers, (vi) use the SYRIS System or its aggregated data for the development of or in connection with a software application or service that has the same or substantially similar features and/or function to the SYRIS System; and (vii) use the SYRIS System for any unlawful purpose. 4. Co vp right The Software, the SYRIS System, its databases and compilations of aggregated data, all copies thereof, and associated trademarks are protected under United States Copyright Law, International Treaty, trade secret, trademark and other applicable laws. You agree not to copy, reproduce. publicly distribute, transmit or display the Software, the SYRIS System, or all or substantially all of the content of any SYRIS System database without the express written consent of ARES. 5. Ownership You acknowledge and agree that ARES and its licensors (as applicable) are and shall remain the sole owner of all rights, title and interest in and to the SYRIS Software, the SYRIS System, all aggregate data collected through the use of the Software and System, all derivatives thereof and all intellectual property rights related or pertaining to the aforesaid, including without limitation, all copyrights and inventions (whether patentable nor not), even if you should provide data, suggestions, ideas, concepts, inventions, works of authorship, improvements or other intellectual property as a result of your use of the SYRIS Software and System. You further agree that you will not make any claim for, and do hereby expressly waive and release any right to, an accounting, compensation or other consideration of any kind arising from or related to any participation by Rev. 1/12/09 you in the use, modification or improvement of the SYRIS Software or System. 6. Disclaimer of Warranties EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYRIS SOFTWARE, SYRIS SYSTEM, DATA AND INFORMATION ACCESSIBLE THROUGH THE USE OF THE SOFTWARE AND SYSTEM ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. ARES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. Use of the Software, the SYRIS System and its content, data, information and documentation is at your sole risk. 7. Limitation of Liability TO THE EXTEND PROHIBITED BY LAW, IN NO EVENT SHALL ARES, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND SUCCESSORS AND ASSIGNS OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE AND/OR SYRIS SYSTEM OR ITS CONTENTS BE LIABLE TO YOU FOR ANY PERSONAL INJURY OR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF DATA OR PROPERTY) ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SOFTWARE, INFORMATION OR DATA PROVIDED OR MADE ACCESSIBLE UNDER THIS AGREEMENT, EVEN IF ARES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY OR DAMAGES. 8. Indemnity You agree to indemnify and hold harmless ARES, its officers, directors, employees, representatives, successors and assigns from and against any claims, actions, demands, liabilities, settlements and damages including without limitation, reasonable attorneys fees and costs, arising from or related to your violation of this Agreement, 9. U.S. Government Restricted Rights If this Software and SYRIS System is being acquired for use by or on behalf of the U.S. Government or by a U.S. Government contactor (at any tier), then the Government's rights in the Software and governing documentation will be only as set forth in this Agreement, in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense acquisitions) and with 48 CFR 2.101 and 12.212 (for non -DOD acquisitions), as applicable. Unpublished rights are reserved under the Copyright laws of the United States. ARES Corporation, 1440 Chapin Avenue, Suite 390, Burlingame, CA 94010- 4061. 10.End Users Outside the US If you are located outside the jurisdiction of the U.S., then the provisions of this Section shall apply to you. (i) this Agreement and all related documentation shall be in the English language. (LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S'Y RATTACHE, SOIENT REDIGES EN LANGUE ANGLAISE), and (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software and SYRIS System, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this Agreement and license valid and enforceable. 11. Export / Import You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the Software nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria or any other country subject to a U.S. trade sanctions or embargo, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of -2- Rev. 1/12/09 ,�ht..l l �iilYrrl';YtYlill countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Export Administration Denied Persons List or Entity List. By using the Software, Licensee agrees to the foregoing and represents and warrants that it is not located within an embargoed jurisdiction and is otherwise in compliance with these conditions. 12. Termination/Survival This Agreement and your rights and license granted hereunder shall terminate concurrently with the termination of the respective SYRIS Subscription Agreement, unless terminated earlier pursuant to the terms of this Agreement. ARES may immediately suspend your access to the SYRIS System and/or terminate this Agreement and the SYRIS Subscription Agreement with or without notice to you upon discovery of a material breach by you (or your employer, if applicable) of this Agreement or the SYRIS Subscription Agreement. The provisions of Sections 5, 6, 7 and I 1 shall survive the termination of this Agreement. 13. General This Agreement is will be governed by the laws of the State of Texas without application of conflict of laws principles. The United Nations Convention in the International Sale of Goods shall not apply to this Agreement is hereby expressly excluded. Should any provision of this Agreement be deemed invalid or unenforceable, the remaining portions shall remain valid and enforceable in accordance with the original intentions of the parties. The prevailing party in any action or proceeding to enforce the terms of this Agreement shall be entitled to an award of its reasonable attorneys' fees and costs. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof. With the exception of the SYRIS Subscription Agreement, all previous and collateral agreements, representations, promises, and conditions relating to the subject matter of this Agreement are superseded by this Agreement. In the event of any conflict between this Agreement and the SYRIS Subscription Agreement, the terms and conditions of this Agreement shall govern the use of this Software and access and use of the SYRIS System. This Agreement may not be modified or amendment except in writing signed by a duly authorized officer of ARES. ARES reserves the right to modify the terms and conditions of this Agreement with thirty (30) days advance notice to you. No provision of this Agreement may be waived except in writing signed by the party to be charged. No waiver of any default or violation shall constitute a waiver of any subsequent default or violation of the same or other provision. All notices and approvals given under this Agreement must be in writing and delivered in person, or by first class mail, express mail, facsimile with confirmation of transmission, or email with return acknowledgment. Notice provided in accordance with this subsection will be deemed given when received. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. This Agreement and the rights granted hereunder may not be assigned without the express written consent of ARES. The section headings of this Agreement are provided for purposes of convenience only and shall be of no effect in the interpretation or meaning of any provision. [End of Agreement] BG LI B 1'.I 229679.1 -3- Rev. 1 / 12109