Loading...
HomeMy WebLinkAboutDatabase Technologies, Inc. DATABASE TECHNOLOGIES, INC. FLAT RATE SUBSCRIBER AGREEMENT This Agreement by and between Database Technologies, Inc. CDBT'') with its principal address at 4530 Blue Lake Drive, Boca Raton, Florida 33431, and the City of Cannel, Indiana, by and through its Board of Public Works and Safety ("Subscriber"), with its principal address at One Civic Square, Cannel, Indiana 46032 and applies to Subscriber's use of all services provided by DBT heretrader. For purposes of this Agreement, all references to DBT shall include DBT's directors, officers, employees, agents, affiliates and assigns. The services provided by DBT shall include, without limitation, all online services, data retrieval services, gateway access, customer service and documentation provided by DBT from time to time (collectively, the "Services"), including, but not limited to, those identified on attached Exhibit A, incorporated herein by this reference. All information provided by DBT in connection with the Services, including, without limitation, all data, reports and files are collectively referred to as the "Information". 1. SERVICES. Based upon the uses which Subscriber has certified to DBT, DBT shall provide Subscriber with the Services designated by Subscriber from time to time, in consideration for the fees for the Services as set forth in Section 3 pursuant to the attached Terms and Conditions (the "Terms and Conditions") which shall govem Subscriber's use of the Services and the Information. Subscriber shall not use the Information obtained through the Services for credit granting, credit monitoring, account review, insurance underwriting, employment or any other purpose prohibited by the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681, et seq. CFCRA"), and similar state statutes. DBT reserves the right to immediately terminate this Agreement and Subscriber's access to the Services and the Information if Subscriber violates this Section 1 or any other provision of this Agreement or if Subscriber's use of the Services is other than as set forth herein. 2. ELIGIBILITY. Subscriber acknowledges that DBT does not provide the Services and Information to the general public. Subscriber represents and warrants that Subscriber is either a (i) licensed professional in good standing; (ii) a company with a genuine and legitimate business need for the Services and Information for the uses identified by Subscriber in Subscriber's Use Certification; or (iii) a duly constituted law enforcement or other governmental agency. Subscriber shall provide proof of insurance upon request of DBT. Subscriber shall use the Services and the Information only in the ordinary course of Subscriber's business in a manner appropriate for such business, for the uses identified to DBT by Subscriber in Subscriber's Use Certification. Subscriber shall promptly notify DBT of any change in Subscriber's status affecting Subscriber's eligibility to use the Services. 3. FEES AND CHARGES. For the Services and the license hereunder, Subscriber shall pay DBT the applicable rates set forth on attached Exhibit A. DBT may make changes, additions and deletions to the Services and the Information at any time without prior notice and such changes shall not affect the rate set forth on Exhibit A. DBT shall invoice Subscriber for all fees and charges incurred and such invoices are due and payable within thirty (30) days of receipt by Subscriber. 4. TERM AND TERMINATION. This Agreement may be terminated at any time by either party upon ten (10) days prior written notice to the other party. Notwithstanding the foregoing, if Subscriber breaches this Agreement, DBT shall have the right to terminate this Agreement immediately either with or without notice. Any termination of this Agreement shall not affect any fees or charges then due and owing to DBT from Subscriber. Upon any such termination, Subscriber shall cease using the Services and shall delete from Subscriber's computers and other media all copies of any software provided by DBT in connection with this Agreement and return to DBT, within ten (10) days thereafter, all software, manuals and documentation provided by DBT to Subscriber in connection with the use of the Services. 5. NOTICES. Except for any changes to Exhibit A or as otherwise provided herein, any notice required or permitted to be sent under this Agreement shall be in writing and delivered personally, sent by prepaid regular first-class certified mail return receipt requested, or by overnight courier to the following addresses: SUBSCRIBER: City of Cannel Carmel Police Department Three Civic Square Cannel, 1N 46032 ATTN: Michael Fogarty, Police Chief With a copy to: Carmel City Attorney City Hall One Civic Sqtmre Carmel, IN 46032 ATTN: Douglas Haney, Esq. DBT: Database Technologies, Inc. 4530 Blue Lake Drive 'Bh~.~lq~ ,ir'rr~0: ~xv,,~ Boca Raton, FL 33431 /NAt N ,,v~d',, ATTN: General Counsel or to such other address as either party may specify in writing, and shall be effective on the date received. 6. ASSIGNMENT. Subscriber may not assign or sublicense this Agreement or any rights hereander without the prior written consent of DBT. 7. SEVERABILITY. Should any term or condition of this Agreement be declared illegal or unenforceable, such illegality or nnenforceability shall not affect any other term or condition hereof. 8. SURVIVAL. The provisions of Sections 3, 8 and 10 hereof and Sections 1, 2, 3, 5, 6, 7 and 8 of the Terms and Conditions shall survive the termination of this Agreement, for any reason. 9. ENTIRE AGREEMENT. This Agreement, the attached Terms and Conditions, and Exhibit A are the exclusive agreement of the parties with respect to the subject matter hereof and supersede all prior negotiations, representations and statements. This Agreement may be amended only upon the written consent of both parties. 10. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of Florida, without reference to its principles of conflicts of laws. TERMS AND CONDITIONS THE FOLLOWiNG TERMS AND CONDITIONS GOVERN THE USE OF ALL ONL1NE SERVICES PROVIDED BY DATABASE TECHNOLOGIES, INC. CDBT"). YOU MAY NOT USE SUCH SERVICES, OR THE INFORMATION AVAILABLE FROM SUCH SERVICES, WITHOUT FIRST ACCEPTING THESE TERMS AND CONDITIONS. 11. SOFTWARE LICENSE; LICENSE TO USE SERVICES AND INFORMATION; RESTRICTIONS ON USE. For so long as Subscriber subscribes to the applicable DBT Services and fully complies with the terms of the Subscriber Agreement, DBT shall make available to Subscriber, from time to time, certain software and modifications and updates to such software (collectively, the "Software") in connection with the Services, in order to access the Information. DBT hereby grants Subscriber a limited, revocable, non-exclusive, non-transferable license to use the Software, and to access and use the Services and the Information, for internal research and investigative purposes only, and not for resale, for the uses specified by Subscriber in the Subscriber Qualification Process. Subscriber may make one copy of the Software for backup or archival purposes, provided that Subscriber duplicates on such backup copy the copyright notice and other identifying information on the Software. Subscriber must notify DBT in writing if it wishes to make any additional copies of the Software so that DBT may properly track such Software. Subscriber may download a portion of the Information to a storage device for the purpose of printing Reports. Subscriber shall not sell, copy, reproduce or transfer the Information in bulk or resell the Reports. Subscriber shall not provide access to the Services to any other party. In using the Services and the Information, Subscriber shall comply with all applicable federal and state laws and regulations, including, without limitation, any reporting or use requirements under the FCRA to the extent applicable. If Subscriber breaches these provisions, DBT may terminate Subscriber's access to the Services and Information and seek an injunction and any other available relief against Subscriber. DBT reserves the right to restrict Subscriber's access to certain portions of the Services and Information. 12. DBT INTELLECTUAL PROPERTY; RIGHT AND TITLE. The Software and copyright to the printed information supplied by DBT and the reports provided to Subscriber by DBT containing search results of the Information (the "Reports") are and shall remain the intellectual property of DBT and its third party suppliers. Subscriber may print a copy of the documentation from the Software only for its own use for the sole purpose of operating the Software. Subscriber acknowledges that the Software, the Services, the Information and the Reports axe proprietary to DBT and contain copyrighted material, trade secrets and proprietary information owned by or licensed to DBT. Subscriber shall not de-compile, reverse engineer, disassemble or otherwise reduce the Software to human readable form. Subscriber may not modify, rent, lease, loan or distribute copies of the Software. Subscriber may not create derivative software based upon any trade secret or proprietary information of DBT. Subscriber acknowledges that the license set forth herein is not a sale of DBT intellectual property and that DBT and its suppliers continue to own all right, title and interest in and to the Software, Services, Information and the copyright to the Reports, including, but not limited to, all rights under applicable intellectual property laws. Subscriber shall use the Services, Information and the Reports consistent with such right, title and interest of DBT. Subscriber shall obtain no proprietary interest in any of the Services or the Information. 13. USER IDENTIFICATION; INQUIRY LOG. Subscriber shall maintain the confidentiality of its assigned user identification numbers for the Services and shall be responsible for all charges incurred under such numbers. Each of Subscriber's authorized users shall be assigned a unique user identification name or number ("ID"). The name of each user associated with each ID shall be provided to DBT. Subscriber shall insure that no ID assigned to Subscriber's account is used by more than one individual and that users do not otherwise share IDs. Unless Subscriber is a duly constituted law enforcement or government agency, DBT reserves the right to maintain and, for any legitimate reason, review logs containing any inquiry details and other activities performed by Subscriber. 14. INTELLECTUAL PROPERTY INDEMNITY. DBT shall indemnify, defend and hold Subscriber harmless from and against any and all claims, losses, costs, damages and expenses (including attomey's fees) (collectively "Losses") to the extent arising out of any claim by any third party that the Software violates such party's copyright, trademark or other U. S. intellectual property rights. 15. INDEMNITY. Except to the extent (i) provided in Paragraphs 14, 25 and 27 hereof, and/or (ii) arising ont of the gross negligence or willful misconduct of DBT, Subscriber shall indemnify, defend, and hold DBT harmless from and against any losses resulting from claims by third parties arising out of the use of the Services or the Information by Subscriber. 16. LIMITATION OF LIABILITY. Subscriber acknowledges that DBT relies on others, including the compilers and reporters of public records, in providing the Services and Information. THE SERVICES AND THE INFORMATION ARE PROVIDED 'AS IS' AND 'AS AVAILABLE', WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Neither DBT nor any third party source of any Information shall be liable to Subscriber (or to any person or entity claiming through Subscriber) for any damages arising from or caused in whole or in part from (i) errors or omissions in the Services or the Information; (ii) any interruption in the Services; (iii) DBT's or any third party source's negligent acts or omissions in procuring, compiling, interpreting, reporting or delivering the Information; or (iv) otherwise in providing the Services. Notwithstanding this paragraph, in the event that DBT or any third party source shall be found liable for any damages for any reason relating to Subscriber's use of the Services or the Information, the appropriate measure of such damages shall be the cost paid by Subscriber for the Services and the Information specifically relating to such loss. 17. NO CONSEQUENTIAL DAMAGES. 1N NO EVENT SHALL DBT OR ANY THIRD PARTY SUPPLIER TO DBT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF DBT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 18. EXCUSABLE DELAY. The availability of Services and Information is subject to interruption and delay ("Excusable Delay") due to causes beyond DBT's reasonable control. DBT shall not be liable to Subscriber for any Excusable Delay. 19. ADVERTISING. Neither party shall use, in any advertising, sales promotion, publicity or other public or media communications, any trade name, trademark, service mark, or logo owned by the other party, without the prior written consent of such party. 20. PURCHASE ORDER. If Subscriber's purchase order is used in conjunction with this Agreement, the terms and conditions set forth in this Agreement are made a part of and govern in the event of any conflict with the terms of such purchase order. 21. DEFINED TERMS. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Subscriber Agreement to which these Terms and Conditions are attached and made a part of. 22. TERM. Subject to the termination provisions set forth herein, this Agreement shall be in effect from its Effective Date through December 31, 2000, and shall thereafter, on the first day of January in each subsequent year, automatically renew for a period of one (1) year, unless earlier terminated in accordance with the terms and conditions hereof. This provision does not apply to the Flat Rate term as more fully described in Exhibit A and attached hereto. 23. BINDING EFFECT. DBT and Subscriber, and their respective officers, officials, agents, partners, successors, executors, administrators, assigns and legal representatives are bound to each other in all respects as to all covenants, agreements and obligations of this Agreement. 24. NO THIRD PARTY BENEFICIARIES. Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone other than DBT and/or Subscriber. 25. RELATIONSHIP. The relationship of the parties hereto shall be as provided for in this Agreement, and neither DBT nor any of its agents, employees, contractors, subcontractors and outside sources are or shall become employees of Subscriber. Furthermore, DBT shall have the sole responsibility to pay to or for its agents, employees, contractors, subcontractors and outside sources all statutory, contractual and other benefits and/or 5 obligations as they become due, and Subscriber shall not be responsible for same. Rather, the fees to be paid hereunder by Subscriber to DBT shall be the full and maximam amount of money required of Subscriber to be paid to DBT hereunder. 26. INSURANCE. DBT shall procure and maintain, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of Subscriber and DBT from any and all claims for damages or otherwise under workers' compensation, occupational disease and/or unemployment compensation acts, because of errors and omissions, because of bodily injury, including, but not limited to, personal injury, sickness, disease or death of any and all of DBT's employees, agents, contractors, subcontractors or outside sources, and/or because of injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. 27. GOVERNMENT COMPLIANCE. DBT agrees to comply with all present and future federal, state and local laws, executive orders, rules, regulations, codes and ordinances which may be applicable to DBT's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. DBT agrees to indemnify and hold harmless Subscriber from any and all losses, damages, costs, attomey fees and/or liabilities resulting from any violation of such law, order, rule, regulation, code or ordinance. This indemnification shall survive the termination of this Agreement. 28. DISCRIMINATION PROHIBITION. DBT represents and warrants that it and each of its employees, agents, contractors, subcontractors and outside sources shall comply with all existing and future laws of the United States, the State of Indiana and Subscriber prohibiting discrimination against any employee, applicant for employment and/or other person in the subcontracting of work and/or in the performance of any Services and/or additional services contemplated by this Agreement with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, subcontracting or work performance hereunder because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran status. Subscriber reserves the right to collect a penalty as provided in I C 5-16-6-1 for any person so discriminated against. 29. REPRESENTATION AND WARRANTIES. Each party hereto represents and warrants that it is authorized to enter into this Agreement and that any person or entity executing this Agreement on behalf of such party has the authority to bind such party or the party which they represent, as the case may be. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety ("Subscriber") DATABASE TECHNOLOGIES, INC. ("DBT") BY: ~alkdt(r,~M/e/m~ber Date = ~,~.- ~,- ,, FID/SSN: 65-0324434 Date: FLAT RATE SUBSCRIBER AGREEMENT - DBT PRICE LIST Exhibit "A" PRICE: DBT agrees to provide the City of Carmel, Indiana, by and through its Board of Public Works and Safety with unlimited access to Auto Track Plus or Auto Track XP at the rate of Three Hundred Dollars ($300.00) per month, for a period of six (6) months subject to the conditions set forth in Paragraph 3 of the Flat Rate Law Enforcement Subscriber Agreement. SPECIAL CONDITIONS: The fiat rate would not apply to copies of"Premium Reports" which now consist of(l) National and Florida criminal records and motor vehicle accident reports (MVRs), (2) Experian Business Reports, (3) InfoUSA Reports, (4) Dun & Bradstreet Reports, and (5) Link It Analytical Reports. The Premium Report options will be turned off to prevent access from the menu. If you require Premium Reports please notify us and we can arrange to have them billed transactionally in addition to the flat rate price. This Agreement will become effective on o '~ - o 5'- ~ o (the "Effective Date"). 8 July 24, 2000 Ms. Ann McNamara DATABASE TECHNOLOGIES, INC. 4530 Blue Lake Drive Building 14 Boca Raton, FL 33431 Dear Ms. McNamara: On July 5, 2000, the Board of Public Works and Safety approved a contract to do business with your company. Enclosed is an original, fully executed Agreement for your records. Please review the enclosed sample invoice (Exhibit B). You do not need to use this specific form, but we require you to submit the requested information in a similar layout. This format replaces any other form previously used by the City and is effective upon approval of your contract. Please call Clerk-Treasurer Diana Cordray at 571-2414 if you have any questions. Can'ie A. Groce Deputy Clerk Enclosure CC: Chief Michael Fogarty Cannel City Police Department