HomeMy WebLinkAboutServices AgreementGRANICUS , INC:.
SE 6 VICtr:S AC RI!,Ei'JENT
THIS AGREEMENT, dated as of��
a California Corporation and the
, 2007 is between GRANICUS, INC.,
, (the "(.1icnt").
A. Granicus, Inc, has developed a streaming media solution and Media Management
Software that specializes in Internet Broadcasting.
k3. The Client desires to (i) purchase the Granicus Solution which will facilitate
streaming and distribution of live and archived video and audio content, and (ii) engage Granicus,
Inc. to integrate its' Media Management Software onto the Client's existing website, and (iii)
contract with Granicus, Inc. to administer the Streaming Solution through a Managed Services
solution.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements,
covenants, representations and warranties herein contained, the parties hereto agree as follows:
GRANICUS SYSTf'_MLIN STA 1-1-ATIIO N.
I, I 11..,st lotion ofGranicus Svstem.
(a) Granicus, Inc. shall have the following obligations in connection with the
installation of the Granicus System:
(i) install, set-up and test the Granicus Systern, including, if
necessary, installing the computers, and loading any necessary software;
(ii) conduct one initial "train the trainer" training session, using 8
combination of written procedures (in English) and hands-on training, on the use
of the Granicus System; and
(b) The Client shall have the following obligations in connection with the
installation of the Granicus System:
(i) provide physical space at the site locations that is appropriate and
sufficient for the Granicus System, including a controlled access arca for the
computers and associated hardware, equipment and accessories; and
(ii) Compensate all costs related to the installation and deployment of
the Granicus solution as described in the Proposal.
(iii) Compensate all Managed Services payments as described in
section 5.2
Version 3.9
(a) The Client shall provide such materials as may reasonably be necessary to
post warnings and other disclaimers at appropriate intervals around the various site
locations within the Client venue where live audio and video streaming will take place.
(b) The Client shall be responsible for maintaining such warnings and
disclaimers and for ensuring that patrons are fully informed regarding the locations and
times when such audio and video streaming will occur.
1.3 Maintof l cluipnrcnt.
(a) - For (3) three years after the date of this Agreement, Granicus, Inc. shall
repair or replace any Equipment, provided directly from Granicus, that fails to function
properly due to normal wear and tear, provided that any such failure is not covered by
insurance maintained by the Client. Granicus, Inc. shall not be responsible, however, fir
any such failure that is duc to other causes, such as power surge, fire, flood or other
casualty, accident, vandalism, misuse or abuse, alteration of the Equipment or failure of the
Client to maintain a proper environment or otherwise properly care for the Equipment.
(b) Granieus, Inc. has the technology in place to continually monitor all
equipment and should any malfunction appear Granicus, Inc. shall immediately notify the
Client. Granicus, Inc. shall respond to requests to repair or replace any non-functioning
Equipment, provided directly from Granicus, within 24 hours from the time that notice is
received, and the Client shall grant Granicus, Inc. or its Representative's access to the
Equipment for this purpose at reasonable times. Granicus, Inc. will keep the Client
informed regarding the time frame and progress of the repairs or replacements.
(c) Granicus, Inc. offers continuous customer support and is dedicated to
ensuring that the Client is completely satisfied with Granicus products and services.
Granicus staff is available to the Client 24hrs a day, 365 days a year, via the customer
support lines. All support numbers arc listed on the bottom of this contract.
2. USE OF MEI)lA MANAGEME NT SOFTWARE.
2.1 Use. Granicus, Inc. agrees to provide Client with a Revocable, non -transferable
and non-exclusive account to access the Media Management Software; and grants Client a
Revocable, non-sublicensable, non -transferable and non-exclusive right to use the Media
Management Software. The Media Management Software is proprietary to Granicus, Inc.,
and protected by intellectual property laws and international intellectual property treaties.
Client's access to, and use of the Media Management Software is licensed and not sold.
Client will be responsible for any applicable costs and taxes associated with Client's use of
the Services, or use of the Services through Client's account.
3. CONTENT PROVIDED TO GRANICUSt INC.
3.1 Responsibility fir Content. The Client shall have sole control and responsibilily
over the determination of which data and information shall be included in the Content that is to be
transmitted, including, if applicable, the determination of which cameras and microphones shall be
operational at any particular time and at any particular location. The Client shall not provide to
Granicus, Inc., or permit to he provided to Granicus, Inc., any Content that (a) infringes or violates
any third parties' Intellectual Property Rights, rights of publicity or rights of privacy, (b) contains
2 Version 3.9
any defamatory material, or (c) violates any federal, state, local or foreign laws, regulations or
statutes.
OWNJ„RSIItP, INTELLECTUAL PROPERTY RIGVISURITY.
4.1 Content Ownership. The Client shall own all right, title and interest in and to all
Content on a worldwide basis, including, without limitation, all Intellectual Property Rights
relating thereto, (i) with respect to Content captured by cameras or microphones at the venue, at the
time such Content is so captured and prior to the time it is transmitted to the computer at the venue
and (ii) with respect to all other Content, at the time such Content is transmitted/or otherwise
provided to Cranier's, Inc. pursuant to this Agreement. To the extent that any such Content is
protectable by copyright, such Content shall be deemed to be "works made for hire" under the
copyright laws of the United States.
4.2 Trademark Ownershjp and License.
(a) The Client shall retain all right, title and interest in and to its Trademarks,
including any goodwill associated therewith, subject to the limited license granted to
Granicus, inc. pursuant to Section 4.2 hereof.
(b) Granicus, Inc. shall retain all right, title and interest in and to the Granicus,
Inc. Trademarks, including any goodwill associated therewith, subject to the limited
license granted to the Client pursuant to Section 4.2 hereof.
(c) i;ach party grants to the other a non-exclusive, non -transferable (other than
as provided in Section 6.1 hereof), limited license to use the other party's Trademarks as is
reasonably necessary to perform its obligations under this Agreement, provided that any
promotional materials containing the other party's trademarks shall be subject to the prior
written approval of such other party, which approval shall not be unreasonably withheld.
(d) Neither party shall use the other party's "Trademarks in a manner that
disparages the other party or its products or services, or portrays the other party or its
products or services in a false, competitively adverse or poor light. Each party shall
comply with the other party's requests as to the use of the other party's Trademarks and
shall avoid any action that diminishes the value of such Trademarks.
4.3 Security. of Data. Granicus, Inc. will take commercially reasonable efforts to
protect and control access to Client Content. However, Granicus, Inc. makes no guarantee and
assumes no liability for the security of any of Client Content or other data provided to Granicus,
Inc., including any of Client Content or data placed on any servers including "secure servers."
Client will be responsible for the creation and protection of usernamc and password. In no event
shall Granicus, Inc. be liable for any direct, indirect or other damages arising out of any breach of
security or otherwise.
5. MANAGED SERVICES FEES
5.I
fi gr &m
(a) Granicus, Inc. agrees to provide the Client the hosting, storage, and
bandwidth necessary for the Client to broadcast its content to the Internet for at least
three (3) years in accordance with the Granicus Managed Services defined in The Proposal.
3 Version 3.9
(b) The Client agrees to purchase hosting, storage, and bandwidth necessary
for the Client to broadcast its content to the Internet for at least one (I) years in accordance
with thc Granicus Managed Services defined in The Proposal.
yincnt t>I M,iintenanceFees
(a) Upon execution of this Agreement, the Client agrees to pay Granicus, inc.
the first month's Managed Service Fees.
(b) / Thereafter, the Client agrees to pay the monthly fees to Granicus, inc. by
the first day "of the month a month in advance of services.
5.3 (, aricollation c•fManaged $ervicc Plan
(a) In the event of a cancellation of Managed Services by Client within (12)
months from the "live" date, thc Client will be responsible for paying the amount due for -
the remainder of the first year.
(b) Cancellation of Clients Managed Services will also result in the immediate
termination of Clients Media Management Software license as described in Section 2.1
6. CONFIDENTIAL. INFORMATION & OWNERSHIP.
6.1 Disclosure. Except to the extent necessary as contemplated by this Agreement,
each party agrees not to disclose any Confidential Information to any person and agrees to use its
best efforts to prevent inadvertent disclosure of any Confidential information to any person.
.Without limiting the generality of the preceding sentence, each party agrees to treat the
Confidential Information of' the. other party with at least the degree of care that such party treats
similar information of its own. Each party may disclose such Confidential Information to a court.
or other governmental authority to the extent that such disclosure is required by governmental
order or by law; provided that the receiving party shall (i) notify the disclosing party in writing of
such required disclosure as soon as reasonably possible prior to such disclosure, specifying in detail
the reasons why such disclosure is required, (ii) use its commercially reasonable efforts at its
expense to cause such disclosed Confidential Information to be treated by such governmental
authority as trade secrets and as confidential, and (iii) use its .commercially reasonable efforts at its
expense to obtain such other protective orders and protections with respect thereto as the disclosing
party may reasonably request.
6.2 Use. Each party agrees not to use any Confidential information for any purpose
whatsoever except to the extent necessary as contemplated by this Agreement. Each party agrees
not to disclose the Confidential Information to any of its Representatives except those who are
required to have the Confidential Information in connection with such purpose and then only if
such Representative is either subject. to a written confidentiality agreement that would cover the
confidential treatment of the Confidential Information or otherwise subject to fiduciary obligations
of confidentiality that would cover the confidential treatment of the Confidential Information.
6.3 Termination of Confidentiality Obligations. The obligations of this Article 7 shall
terminate with respect to any particular portion of the Confidential Information when receiving
party can prove by appropriate documentation that such Confidential Information (a) was
previously known to the receiving party as shown by the receiving party's files at the time of
Version 3 9
disclosure thereof, (b) was already in the public domain at the time of the disclosure thereof, or (c)
entered the public domain through no action of the receiving party subsequent 10 the time of the
disclosure thereof,
DISCLAIMER R OE \?VARRAN FY; 1 IMI I A'1`ION (:)t`LIABILITY.
7.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE
SUMO* MATTER OF 'THIS AGREEMENT AND HEREBY DISCLAIMS ANY/AND ALL
IMPLIED WARRANTIES, INCLUDING, W1'FllOUT LIMITATION, ALL _WARRANTIES
REGARDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR
LOST SAVINGS), WHETHER BASES) IN CONTRACT, TORT OR OTHERWISE,
REGARDLESS OF WHETHER THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
8. TERM RMAND T E RMINATKUN.
8.1 Term. The term of this Agreement shall commence on the date hereof and shall
continue in full force and effect for one (1) Years after the date hereof. This Agreement shall
automatically renew for additional 3 terms of (1) one year each, unless either party notifies the
other in writing at least 30 days' prior to such automatic renewal that it does not wish to renew this
Agreement.
8.2 :termination. This Agreement may be terminated, in whole or in part, pursuant to
the following terms and conditions:
(a) by mutual written consent of the parties hereto;
(b) by either party if there has been a material default or breach on the part of
the other party in any of its representations, warranties, covenants or obligations contained
in this Agreement and such default or breach is not cured within 90 days following written
notice from the non -breaching party;
8.3 Obligations _Upon Termination. Upon any termination of this Agreement, the
following shall apply:
(a) The parties shall remain responsible for any payments that have become
• due and owing as of the effective date of termination.
• (b) The provisions of Articles 6 and 7 hereof (together with all other
provisions that reasonably may be interpreted as surviving termination of this Agreement)
shall survive termination of this Agreement and continue in full force and effect.
(e) Except as provided in Article 8 hereof, no party shall have any liability
upon any termination of this Agreement.
Version
9).
MISCE 1,1,ANEOUS.
9.1 Assi invent; Successors and Assigns. Neither this Agreement nor any rights or
obligations herein may be assigned by either party, by operation of law or otherwise, without the
written consent of the other party; provided, however, that, without the consent of the Client,
Granicus, inc. may assign this Agreement in connection with a merger, consolidation, assignment,
sale or other disposition of substantially all of the assets or business relating to the portion of the
Granicus, Inc.' operations that is the subject of this Agreement. This Agreement shall be binding
on and inure to the benefit of the parties hereto and their heirs, legal representatives, successors and
permitted assigns. /
9.2 Amendment and Waiver. This Agreement may be amended, modified, waived or
canceled only in writing signed by each of the parties hereto or, in the case of a waiver, by the
party waiving compliance. No failure or delay by either party in exercising any right or remedy
under this Agreement shall waive any provision of this Agreetent nor shall any single or partial
exercise by either party of any right or remedy under this Agreement preclude either of them from
otherwise or further exercising these rights or remedies or any other rights or. remedies granted by
any law or any other document.
9.3 Governing Law. The laws of the State of California shall govern the validity,
construction, and performance of this Agreement, without regard to the conflict of laws provisions
of any jurisdictions. Any legal proceeding related to this Agreement shall be brought in an
appropriate California court, and each of the parties hereto consents to the exclusive jurisdiction of
that court for this purpose.-._---
9.4 Construction. Wherever possible, each provision of this Agreement shall be
interpreted so that it is valid under applicable law. If any provision of this Agreement is to any
extent invalid under applicable law in any jurisdiction, that provision shall still be effective to the
extent it remains valid. The remainder of this Agreement also shall continue to be valid, and the
entire Agreement shall continue to be valid in other jurisdictions.
9.5 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original, but all of which, when taken together, shall constitute one and
the same instrument.
9.6 Entire Agreement. This Agreement supersedes all previous and contemporaneous
oral negotiations, commitments, writing, and understandings among the parties hereto concerning
the matters in this Agreement.
9.7 . Notices. All notices and other communications required or permitted under this
Agreement must be in writing and must be hand delivered or sent by registered first-class mail,
postage prepaid or by overnight courier service. Such notices or other communications shall be
effective upon receipt if hand delivered, and ten (I0) business days after mailing (or, for overnight
courier, the number indicated in the mailing instructions) if sent, in the ease of the Client, to the
address set forth below and, in the case of Granicus, Inc., to its principal executive offices to the
attention of the Chief Executive Officer, or at: such other address for a party as may be specified by
like notice.
9.8 Skecific Performance Remedies Cumulative. The parties acknowledge that a
breach of this Agreement shall result in irreparable and continuing damage and cannot be
adequately compensated for by money damages and agree that specific performance is an
6 Version 3.9
appropriate remedy for any breach or threatened breach hereof. Accordingly, in addition to any
other remedies available to a party at law, in equity or by statute, the parties (a) consent to the
issuance of any injunctive relief or the cnfbrccment of other equitable. remedies against it (without
bond or other security) to compel performance of any of the terms of this Agreement, and (b)
waive any defenses thereto, including without limitation, the defenses of' failure of consideration.
breach of any other provision of' this Agreement, and availability of relief in damages. All
remedies, whether under this Agreement, provided by law, or otherwise, shall be cumulative and
not alternative,
9.9 Mediation and Arbitration. If any dispute, controversy or claim arises under this
Agreement, the parties shall negotiate in good faith to settle the matter. lithe parties are unable to
resolve the matter within a reasonable time, the parties shall submit the matter to mediation by a
trained mediator approved by both parties, the cost of which shall be shared equally by the parties.
Any dispute, controversy or claim arising under this Agreement not resolved through mediation
within a reasonable period of time (not to exceed 90 days) shall be finally settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration Association in
effect on the date of this Agreement by a single arbitrator appointed in accordance with such Rules.
The appointing authority shall be the American Arbitration Association. The parties shall share the
costs of any arbitration equally, unless the award of the arbitrator provides otherwise. The
arbitrator's award shall be non -appealable and enforceable in any court of competent jurisdiction.
The place of mediation or arbitration shall be San Francisco, Califbrnia. Nothing in this Section
11.9 shall preclude any party from seeking injunctive relief or other equitable remedies (whether
prior to or during such mediation or arbitration) if necessary to protect the interests of such party.
10. C:71.>111Wt'1!(�7N5.
In addition 10 the capitalized terms otherwise defined herein, the IbIlowing additional
capitalized terms shall have the meanings set forth below, unless the context clearly otherwise
requires:
10.1 "Confidential Information" shall mean all business, technical and other
information (including without limitation, all product, services, financial, marketing, engineering,
research and development information, product specifications, technical data, data sheets,
programs, software, inventions, processes, know-how, chip designs, mask works, designs,
drawings and any other documentation), disclosed from time to time by the disclosing party to the
receiving party, directly or indirectly in any manner whatsoever (including without limitation, in
writing. orally, electronically, in all types of disks, diskettes, computer memory or storage or other
media, or by drawings or inspection of physical items, and whether or not modified or merged into
other materials); provided, however, that the term "Confidential Information" shall not include the
Content that is intended to be published on the Website.
10.2 "Content" shall mean any and all, documents, graphics, video, audio, images,
sounds and other content that is streamed or otherwise transmitted or provided by, or on behalf of,
the Client to Granicus, Inc.
10.3 "Granicus Solution" shall mean the product specified in Client's proposal
henceforth identified as Proposal hereto.
10.4 "Equipment" shall mean the hardware components of the Granicus Solution.
7 Version 3.0)
10.5 "The Proposal" shall mean the document which specifies the Products or Services
the Client Chooses to utilize from Granicus, Inc.
10.7 "Media Management Software" shall mean all software included with the Granicus
Solution including but not limited to the web application used to administer streaming media.
10.8 "Intellectual Property Rights" shall mean all right, title and interest in and to any
and all intellectual property rights throughout the world, including, without limitation, any and all
patents, patent applications, copyrights, copyright applications, moral rights, trademarks, trade
secret rights, rights to know-how, inventions and algorithms, and any and all similar or equivalent
rights throughout the world.
10.9 "Losses" shall mean demands, claims, complaints, actions or causes of action,
suits, proceedings, investigations, arbitrations, assessments, fines, penalties, judgments, losses,
damages (including diminution in value), liabilities, obligations, and any costs and expenses,
including without limitation interest, penalties, investigative costs and reasonable attorneys' fees.
10.10 "Bmwescntatives" shall mean the officers, directors, employees, agents, attorneys,
accountants, financial advisors and other representatives of a party.
10.11 "Trademarks" shall mean, with respect to each party to this Agreement, all
trademarks, trade names and logos of such party listed on Exhibit a attached hereto and any other
trademarks, trade names and logos that such party may specify in writing to the other party from
time to time.
10.12 "Client Websitc" shall mean, collectively, the web site of any Granicus, Inc. client
that is hosted by Granicus, Inc.
10.13 "Managed Services" shall mean monthly fees paid to Granicus, Inc. by Client for
bandwidth usage associated with live and archived Internet streaming, data storage, and Granicus
Solution maintenance and monitoring.
10.14 "Live" shall mean the time at which "Managed Services" are activated and
monthly billing begins.
10.15 "Revocable" shall mean that Client's right to use or access the media management
software shall be annulled because Client has either discontinued their use of a Granicus Managed
Services program, failed to pay any Granicus fees for more than 30 clays, or breached the terns of
this contract.
Version '
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written,
GRANICUS, INC.
I3y:
Thomas A. Spengler
Its: Chief Executive Officer
Address:
568 Howard Street
Suite 300
San Francisco, CA 94105
Client
Name:
Its:
Address
Date:
Version 3,9