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HomeMy WebLinkAboutContracts & Agreements_53-2003_CCv0001.pdf WEB HOSTING AND E-COMMERCE ON-LINE SERVICES AGREEMENT This agreement constitutes the complete and exclusive statement of the agreement between the City of Redlands(City)and RedFusion Media with respect to the RedFusion Media web hosting and electronic commerce services. The scope of services to be provided and the fees for those services shall be in accordance with Attachment A of this agreement. RedFusion Media and City of Redlands(City)agree as follows: 1.Exclusion of Warranties. REDFUSION MEDIA PROVIDES THE REDFUSION MEDIA SERVICE ON AN"AS IS"BASIS,AND WITHOUT ANY WARRANTY OF ANY KIND,whether express or implied, including,but without limitation,any implied warranty of merchantability,or fitness for a particular purpose. While RedFusion Media makes reasonable efforts to maintain the RedFusion Media service,many factors are not within RedFusion Media's control.Therefore,RedFusion Media does not warrant,and is not responsible for(even if caused by the negligence of RedFusion Media)any loss of data,delays,non- delivery or mis-delivery of information,lack of access, slow response time,or service interruptions or errors.Loss,delay or non-delivery of data can be due to but not limited to RedFusion Media's own negligence,viruses or other third parties. City of Redlands(City)'s data is defined as any data held by RedFusion Media and includes account information,web hosting data,email and domain name services. This disclaimer and waiver shall apply equally to any and all third party providers. RedFusion Media provides no warranty to City of Redlands(City)regarding the accuracy of usage statistics,which RedFusion Media may provide in its discretion. Further,no advice or information given by a RedFusion Media representative shall create a warranty or serve as an amendment to this agreement. RedFusion Media has the right to change prices,or add or delete product features of any existing product or service.The right to change products or services extends to any software supporting a product or service. RedFusion Media reserves the right to change prices or material features at any time upon 90 days prior notice.RedFusion Media reserves the right to institute new fees or new material features at any time upon 90 days prior notice.RedFusion Media has the right to discontinue products or services and the right to remove or reassign IP addresses of a City of Redlands(City)'s web site.RedFusion Media also has the right to deactivate a City's service with a sixty(60)day notice.Except for certain products and services specifically identified as being offered by RedFusion Media,RedFusion Media does not control any materials,information,products, or services on the Internet. 2.Limitation of Liability and Damages. THE TOTAL AGGREGATE LIABILITY OF REDFUSION MEDIA TO CITY OF REDLANDS(CITY) SHALL BE LIMITED TO THE AMOUNT PAID TO REDFUSION MEDIA BY CITY HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH REDFUSION MEDIA IS LIABLE TO CITY. IN NO EVENT SHALL REDFUSION MEDIA BE LIABLE FOR ANY INDIRECT,SPECIAL,EXEMPLARY,PUNITIVE,INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS,REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT,TORT,OR OTHERWISE AND WHETHER OR NOT REDFUSION MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. City of Redlands(City)will not place or link to sites with obscene or sexually provocative language or images.City warrants that content,including written and graphic content, placed on its site,whether by City or placed,at City of Redlands(City)'s direction,by RedFusion, is owned by City of Redlands(City), or that City has the legal I right to place such content on the web site. , 3.Order Acceptance,Payment. A.RedFusion Media shall bill City of Redlands(City)for the applicable set-up fees and monthly fees according to the Service(s)selected by City and provided by RedFusion Media. Such fees and charges shall include,without limitation, design services,and charges by any and all third parties whose materials are included as part of the Service(s), RedFusion Media reserves the right to make changes to fees and charges at any time,although we will attempt to make at least a 60 day notice to City when such fees may increase. All monthly fees and set-up fees shall be due in advance of the month incurred and all additional charges shall be due based on credit terms. If City of Redlands(City)fails to make any payments owing to RedFusion Media,RedFusion Media may, at RedFusion Media's discretion, suspend or terminate access to the RedFusion Media Services and/or terminate this Agreement.Interest charges of 1.5%per month may be charged and accrue on unpaid balance,which is more than thirty(30)days overdue.City shall be responsible for any and all taxes related to this Agreement.RedFusion Media may charge City for certain taxes and other fees when applicable. 4.RedFusion Media Services. A.During the term of this Agreement,RedFusion Media shall provide hosting services to City of Redlands (City)according to the Service(s)accepted by City. "Service"means one of RedFusion Media business and/or electronic commerce service offerings.B.At City's request,RedFusion Media will acquire an Internet Second-Level Domain Name("Domain Name"),from the Contracted Registrar on behalf of City. City of Redlands(City)'s request for and/or acceptance of a Domain Name obtained by RedFusion Media shall in all cases constitute City's waiver of any and all claims which City may have, or which may later arise,against RedFusion Media or its third party providers,for any and all damages,losses,claims or expenses arising from or related to the acquisition,registration and/or use of the Domain Name.Any cost incurred by RedFusion Media to obtain and/or maintain the Domain Name on behalf of City shall be charged to City by RedFusion Media. Request for and acceptance of a domain name requires RedFusion Media to supply the domain name to the Contracted Registrar,which in turn supplies the Domain Name to third parties.RedFusion Media will be the sole billing and technical contact for the Domain Name. 5.Policies From time to time RedFusion Media may impose reasonable policies regarding the use of the RedFusion Media Hosting services. 6. License Usap_e Grant. During the term of this Agreement,RedFusion Media grants to City of Redlands(City)a non-exclusive, personal,non-transferable license to access and use the RedFusion Media Services solely on and as part of RedFusion Media's Internet site and servers.RedFusion Media may modify the RedFusion Media Services at any time for any reason and may provide modified versions of the RedFusion Media Services to Citv. 7.Intellectual Property Riahts. City of Redlands(City)acknowledges and agrees that the RedFusion Media Services has confidential and proprietary information of RedFusion Media and its licensors and embodies trade secrets and intellectual property of RedFusion Media and its licensors protected under United States copyright and other laws and international treaty provisions. City further acknowledges that all right,title,and interest in and to all parts C, of the RedFusion Media Services, including,without limitation,associated intellectual property rights,are and shall remain with RedFusion Media and its licensors. City shall not, and shall cause its employees and agents not to,disclose or transfer any portion of the RedFusion Media Services to any third party. Z� - 8.Term and Termination. A.This Agreement shall be month to month(i)Either party may terminate upon thirty(30)days prior notice;(ii)RedFusion Media may immediately and without prior notice terminate upon a violation by City of RedFusion Media's acceptable use policies;(in)RedFusion Media may terminate immediately and without prior notice in accordance with Section 3;and(iv)RedFusion Media may terminate immediately if, after 15 days prior notice to City,City has failed to correct any breach of this Agreement. B.Upon any termination in accordance with Section 8(A)(i),RedFusion Media shall permit City of Redlands(City)seventy-two(72)hours to download or otherwise copy any of City's information and data residing on RedFusion Media's facilities prior to removing such information and data from RedFusion Media's facilities. C.To cancel an RedFusion Media web hosting, domain name services or electronic commerce services, City of Redlands(City)should call the RedFusion Media number at 909-798-7092 or send a request via mail to RedFusion Media, 104 East State Street, Suite P,Redlands,CA 92373. We request that each Client fill-out the Client Exit Survey on line at www.RedFusionmedia.con-i/exitsurvey.htm D. Sections 3,7,8,9, 10, 11, 12 and 13 shall survive any termination of this Agreement. 9.Confidentiality. City of Redlands(City)acknowledges that by reason of its relationship with RedFusion Media,it may have access to certain information and materials relating to RedFusion Media's business, City's,software technology and marketing which RedFusion Media treats as confidential(collectively"Confidential Information").City shall: (i)hold in confidence, and not disclose or reveal to any person or entity,any Confidential Information without the clear and express prior written consent of a duly authorized representative of RedFusion Media;and(ii)not use or disclose any of the Confidential Information for any purpose at any time,other than for the limited purpose of performance under this Agreement.These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two(2)years following termination of this Agreement with respect to Confidential Information,which does not rise to the level of a trade secret. 10.Indemnification. City of Redlands(City)shall indemnify and hold RedFusion Media harmless against all third party claims, demands,suits,actions,judgments, losses,costs, damages(direct, indirect and consequential),attorney's fees and expenses that Company may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement(including reasonable attorney's fees) and for any act or omission of City which are in any way related to the RedFusion Media Service. 11. Force Maieure. Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including,but not limited to,acts of God, earthquake,labor disputes and strikes,riots, war,and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. 12. Export Control. City of Redlands(City)agrees not to export or re-export any portion of the RedFusion Media Service outside of the United States. City further agrees to comply with all United States and other applicable laws, rules and regulations relating to the export.re-export or transshipment of the RedFusion Media Services. 13.Miscellaneous. City of Redlands(City)may not assign its rights or delegate any of its duties under this Agreement without L, our prior written consent of RedFusion Media,and any attempted assignment or delegation without such consent shall be void.If one or more provisions of this Agreement shall be held to be invalid,illegal,or unenforceable,the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures.RedFusion Media may subcontract any work,obligations or other performance required of RedFusion Media under this Agreement without consent of City.Other than the termination of this agreement,all notices provided hereunder sent by email,mail or certified mail to RedFusion Media,will be effective upon transmission.RedFusion Media has the right to amend the Agreement from time to time,and will do so by posting the new Agreement on the RedFusion Media web site under the Terms and Conditions at the Policies and Agreements page. This Agreement is governed by California law without regard to conflict of law provisions.Any controversy or claim arising out of or relating to this agreement, or the breach thereof,shall be settled by arbitration,and administered by the American Arbitration Association under its Commercial Arbitration Rules. Any such arbitration will be governed by California law and will be held in California.The arbitrator will be an expert in the field of Internet services.The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.There shall be no class action arbitration pursuant to this agreement. EXECUTED ON THIS 1St DAY OFApril 2003 CITY OF REDLANDS, REDFusION MEDIA, ("CITY") BY: ?eo^?rl2is� BY: KARL N.HAWS MOLLY A.BUR MAYOR GENERAL MANAGER ATTEST: BY: '_ I LO"POYZER Cid YCLERK,CITY O E6LANDS Website Hosting and E-Commerce Online Service Agreement Attachment A: Scope of Services and Fees The City of Redlands is the administrator of website domain name ci.redlands.ca.us. Under agreement with RedFusion Media, RedFusion Media will host the city's website content on servers provided through RedFusion Media and make updates to the site as needed and directed by authorized City of Redlands personnel. RedFusion Services and Fees under this agreement will include: Task A: Monthly Website Hosting Action: Fee: RedFusion Media will host the City's website content $23.95/month Task B: Monthly Website Content Updates Action: Fee: As directed by authorized City of Redlands personnel, $751 hr. RedFusion Media will make updates to the content of (estimated$400/month) the City's web site.