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2004-42CODERED SERVICES AGREEMENT This Services Agreement ("Agreement") is made and effective as of the last date written below by and between Emergency Communications Network, Inc. a Florida Corporation ("Licensor") located at 9 Sunshine Boulevard, Ormond Beach, FL 32174 and City of Clermont, a body politic and corporate of the State of Florida ("Licensee") located at 685 West Montrose St Clermont, FL 34711 Licensor is the owner of a service identified as "CodeREDT"" Emergency Notification System" (The "Service") which allows users to place large volumes of telephone calls at very high speed and to deliver prerecorded telephone calls to call recipients within pre-selected households and businesses. Licensee desires to utilize the "Service" for the purpose of informing the public of emergency situations. In consideration of the promises set forth, the parties agree as follows: License: Licensor grants Licensee anon-exclusive and non-transferable license to use the "Service" (hereinafter referred to as "The License") for Licensee's own internal purposes in accordance with the terms outlined in this Agreement. Licensee understands and agrees that Licensee is fully responsible for the use of such services by anyone whom Licensee authorizes or permits to use the "Service", and anyone who accesses the "Service" by utilizing Licensee's Confidential access codes. The Licensee may not modify the "Service" or disable any license or control features of the "Service." Licensee may not (i) assign, license, sublicense, rent, sell, or transfer the "Service" or this agreement, or any portion thereof or (ii) utilize the "Service" except as expressly permitted in the Agreement between Licensee and Licensor. The License will include pass codes for up to five (5) authorized "Service" users. Additional users pass codes may be obtained at an additional annual fee as outlined in Exhibit A. • 2. Ownership: The "Service" is owned and copyrighted by Licensor. The Licensee's license confers no title or ownership in the "Service" whatsoever. 3. Copyright: United States copyright laws and international treaty provisions protect the "Service". Except for the limited license provided, Licensor reserves all rights in and to the "Service" and all underlying data, compilations, and information maintained by Licensor relating to the "Service", including but not limited to, the source or object code. 4. Functionality: The "Service" provides the ability to access pre-defined geographically selected calling areas or listed databases via a Web based software application accessible via the Internet (World Wide Web). The "Service" also has the ability to select calling databases via a geographic mapping component. The Service will also utilize a toll free interactive voice response telephone service used to record prerecorded messages and initiate call out projects. The "Service" is designed to be active 24 hours per day 365 days per year. 5. Costs for The "Service": During the term of this agreement Licensee agrees to pay all costs for utilizing the "Service" as described in Exhibit A - "Service Charges" attached to and made a part of this Agreement. Licensee will purchase prepaid "Service" usage time in bulk packages (Prepaid System Minutes). Larger quantity blocks of Prepaid System Minutes are available at reduced per minute costs. Whenever Licensee utilizes the "Service" the actual calling minutes used by Licensor while utilizing the "Service" will be deducted from the balance of Prepaid System Minutes remaining in Licensee's Prepaid Minutes account. Licensee is responsible to maintain a sufficient balance of Prepaid System Minutes on account to allow for the purpose of informing the public of emergency situations. Emergency Communications Network, Inc Page 1 of 6 Initials CodeREDTM Services Agreement Licensor Licensee • 6. Free Minute Blocks: The following must be met in order for Licensee to utilize the free minute bank specified in Exhibit A: (a) Minutes will be deducted from the Licensee's minute bank at the time of using the "Service". (b) Licensee must notify Licensor in writing within 60 days of the use of the "Service" specifying qualified project(s) to obtain eligible free minutes. If the Licensee fails to notify the Licensor within 60 days of the use of the "Service" the minutes used will not be eligible for consideration as free minutes and will remain as a deduction from the Licensee's minute bank as described above in paragraph 6. (c) Any unused minutes remaining in these blocks are not transferable. (d) Licensor will have the final right to deem all free calling minutes eligible or ineligible. 7. Term of Service Agreement: Unless terminated for breach, default or non-performance by either party the License will extend for a period of two (2) years beginning on the date this agreement is signed by both Licensee and Licensor. On the date of termination of this agreement Licensee will forfeit all Prepaid System Minutes remaining on account. 8. Contract Extension: Upon the annual anniversary of the effective date of this agreement, the term of this agreement will extend for one (1) additional one-year period. This contract extension provision (the "extension provision") will continue to extend the contract period by one additional year annually. The effect of the extension provision is to insure that the contract term provides for a two-year continuation of service for Licensee under the terms and conditions of this agreement. Either party may cancel this extension provision by submitting a request in writing to the other party no less than the 30-day period prior to the annual anniversary of the effective date of the agreement. The activation of the extension provision will trigger the following events: 1) Licensee's minute bank will be replenished to the original 30.000 minute balance, 2) Licensor will update it's systems to extend the active software license and associated access codes for one additional year of use, 3) Licensor will invoice Licensee for one additional year service extension at the rate of five thousand dollars ($ 5.000). Licensee will be responsible for • payment to Licensor of the service extension fee upon receipt of invoice. 9. Repurchase Option: In the event that Licensee utilizes the "Service" to place calls which results in the number of calling minutes used exceeding the remaining balance of Prepaid System Minutes in Licensees' account, Licensee agrees to automatically purchase as many additional block packages of Prepaid System Minutes required to replenish Licensee's account. Block purchases of Prepaid System Minutes will be purchased in increments equal to the most recent block package of Prepaid System Minutes purchased by Licensee, in order to replenish Licensee's account. Payment for any automatic purchase of Prepaid System Minutes will be due in full within 30 days of the date the automatic purchase takes place. Licensee may apply any automatic purchase expenditure to an upgrade (purchase a larger block of Prepaid System Minutes) at this time with no penalty. • 10. Appropriate Use of The Service: To access the "Service" Licensor will provide Licensee with unique user name(s) and password(s). Except as may otherwise be required by law, Licensee agrees to maintain such user name(s) and password(s) as private and confidential information. Licensee agrees to use the "Service" in a way that conforms with all applicable laws and regulations. Licensee specifically agrees not to make, any attempt to gain unauthorized access to any of Licensor's systems or networks. Licensee agrees that Licensor shall not be responsible and liable for the content of the prerecorded call out message(s) delivered by the "Service." 11. Security: Licensee understands that Internet communications are not secure, and may be subject to interception or loss. Licensee understands and acknowledges that Licensor is providing the "Service" on the World Wide Web through an "upstream" third party Internet Service Provider, utilizing public utility services. Licensor shall not be liable to Licensee in the event of any interruption of service or lack of presence on the Internet as a result of any disruption by the third party Internet Service Provider or public utility. In the event of any disruption of service, Licensor will use its best efforts to notify Licensee and to expedite resumption of service. Emergency Communications Network, Inc Page 2 of 6 CodeREDT"~ Services Agreement Initials Licensor Licensee • 12. Warranty: (a) Licensee acknowledges that software in general is not error-free and agrees that the existence of such errors in software used in conjunction with the "Service" shall not constitute a breach of this License. (b) In the event that Licensee discovers a material error which substantially affects Licensee's use of the "Service" and notifies Licensor of the error Licensor shall use reasonable measures to correct that part of the "Service" which does not so comply, provided that such non-compliance has not been caused by any modification, variation or addition to the "Service" not performed by Licensor, its agents or contractors, or caused by its incorrect use, abuse or corruption of the "Service" software, or by use of the "Service" with other software or on equipment with which it is incompatible. In the event Licensor is not able to correct the part of the "Service"that substantially affected Licensee's use of the "Service" in a timely manner, upon thirty (30) days written notice to Licensor, Licensee may terminate this agreement and immediately receive a refund of any and all purchased and unused Prepaid System minutes. (c) Licensee is responsible for maintaining access to the Internet. Licensor in no way warrants Licensee's access to the Internet via Licensee's Internet Service Provider(s). 13. Warranty Disclaimer: To the extent permitted by the applicable law, Licensor disclaims all other warranties with respect to the "Service", either express or implied, including but not limited to any implied warranties of merchantability orfitness for any particular purpose. In no event (even should circumstances cause any or all of the exclusive remedies to fail of its/their essential purpose and even if Licensor has been advised of the possibility of such damages) shall Licensor be liable for any special, indirect, incidental or consequential damages of any nature (regardless of whether such damages are alleged to arise in contract, tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in connection with or ensuing from the existence, furnishing, function, or Licensee's use of any item of products or services provided for in this Agreement. Licensee understands that the cumulative liability of Licensor for any and all claims relating to the "Service" provided by Licensor, in contract, tort or otherwise, shall not • exceed that total amount paid by Licensee under this agreement. 14. Non-Disclosure: (a) Licensee acknowledges and agrees that in providing the "Service", Licensor may disclose to Licensee certain confidential, proprietary trade secret information of Licensor ("Confidential Information"). Confidential Information may include, but is not limited to, the "Service", computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. During this Agreement and for a period of five (5) years thereafter except as required by law, Licensee agrees that it will not, without the express prior written consent of Licensor, disclose any Confidential Information or any part thereof to any third party. At the termination of this Agreement, Licensee will cease utilizing the "Service" and will return all Confidential Information to Licensor unless Licensee renews the "Service" as outlined in this agreement. Nothing in this Agreement will be deemed to prohibit the disclosure of any information in response to a subpoena or other similar order by a court or agency with jurisdiction to issue it. The Licensee will promptly notify the Licensor of the receipt of any subpoena or other similar order and of any request under the Public Information Act or any other similar law. The Licensee will cooperate with the Licensor in defending against disclosure of any confidential information under any such subpoena, order or request. (b) Licensee also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the "Service" or any software provided. • Emergency Communications Network, Inc Page 3 Of 6 Initials CodeREDTM Services Agreement LlCensOf, Licensee • 15. Termination: Licensee may terminate this Agreement as outlined in this Agreement by communicating Licensee's desire to terminate to Licensor in writing and by returning the "Service", including all Confidential Information and copies, to Licensor, along with its evaluation report. All Pre-paid System .Minutes will be forfeited upon termination of this Agreement by Licensee. Licensee understands that Licensor reserves the right to terminate Licensee's account at any time.for reasons including, but not limited to, failure to abide by the terms of this agreement or failure to pay any fees or charges when due. In the event that Licensor terminates this agreement for reasons other than Licensee's failure to abide by this agreement, Licensor will refund to Licensee an amount equal to the balance of Prepaid System Minutes in Licensee's account. Upon termination, Licensee agrees to remove from Licensee's computer(s) any files related to the "Service". 16. Merger: This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. Only a further writing that is duly executed by both parties may modify this Agreement. 17. Confidential Data: Licensor agrees that in view of the confidential nature of Licensee supplied data and files that it is to prepare, process or maintain under this Agreement, it will perform its duties in such a manner as to prevent the disclosure to any persons not employed by Licensor of any such data and files unless Licensor and Licensee mutually agree in writing otherwise. 18. Integrity of Data: Licensor cannot guarantee the integrity of any Licensee supplied data. As such, any errors, duplications, or inaccuracies related to Licensee supplied data will ultimately reside with Licensee. 19. Notices: All notices or requests, demands and other communications hereunder shall be addressed to the parties as follows: • As to Licensor: Emergency Communications Network, Inc. 9 Sunshine Blvd. Ormond Beach, FL 32174 As to Licensee: Cify of Clermont. Attn: Tamara Richardson. City Hall, 685 West Montrose St, Clermont. FL 34711 Emergency Communications Network, Inc Page 4 of 6 Initials CodeREDTM Services Agreement LiCenSO~ Licensee • 20. General: All matters pertaining to the validity, construction and effect of this agreement shall be governed by the laws of the State of Florida. The parties hereby agree that the venue and jurisdiction of any dispute arising hereunder shall be in Florida. If any dispute arises the prevailing party shall be entitled to the costs and attorney's fees from the losing party for enforcement of any right included in this agreement, both a Court of first jurisdiction and all Courts of Appeal. 21. No Construction Against Drafting Party: Each party to this Agreement expressly recognizes that this Agreement results from a negotiation process in which each party was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the party drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any party to this Agreement, and each party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement. IN WITNESS WHEREOF, the parties execute this Agreement on the date(s) indicted below. Licensee: Ci of C/ t FL ~--- Printed Name: -~GrO~C~ S, 1 U("lIi l~~ ,~ f Title: ~~ `~` ~ ~ ~ Date: C~i~t~.~'~. {" ~ ~~ I ~. ~~ Licensor: Emergency Communications Network, Inc. By: Printed Name: T~,MJ 1 Dr'~~G (~c1oM c~ Title: ~1 ~ dr' Lx/'G,T7o1'1 Date: ~~N _ G, 20OS • Emergency Communications Network, Inc Page 5 Of 6 Initials CodeREDTM Services Agreement LiCenSOr f Licensee r~ U System usage will be charged against Prepaid System Minutes at actual minutes of time connected while delivering prerecorded System calls. All calls will be billed in 6- second increments. Only connected calls (live connections, answering machine connections and fax tone connections) will result in connection charges being incurred. 2.5~ per record in final updated database population. Exhibit A -Service Charges Initial block purchase(s) of Prepaid System Minutes: Two (2) year CodeRED Service Agreement $ 10.000 30,000 CodeRED system minutes 500 minutes for testing and training Up to 5 CodeRED user pass codes Initial Database Upload Initial CodeRED distance training $ Included $ No Charge (see paragraph 6) $ Included $ No Charae $ No Charge Additional CodeRED Systems Minutes may be purchased at anytime for thirty-three (33) cents per minute. Additional Pass codes may be purchased for an annual fee of $150.00 per pass code. Database Accuracy Updates Licensor Supplied Database: "Database Accuracy Updates" ensure that the data population maintained by Licensor under this Agreement undergoes periodic accuracy checks using the Licensor's most current in-house compiled database including, but not limited to, household addresses and telephone numbers. It will be the sole responsibility of the Licensee to maintain database accuracy and request updates from the Licensor. One annual "Database Accuracy Update" will be performed by the Licensor upon request by the Licensee at no charge. Additional updates requested by Licensee will incur charges at the rate listed below after the update service is completed by Licensor. Licensee Supplied Database: A service labor fee of One Hundred Dollars ($100.00) per hour will be billed to Licensee for any data importing, manipulating, and loading any database supplied by Licensee or on Licensee's behalf to Licensor. $100 per hour for database maintenance • Annual System Maintenance, including all Software Upgrades Emergency Communications Network, Inc Page 6 Of 6 CodeREDTM Services Agreement $ No Charge Initials Licensor Licensee