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Service Solicited - 2013 - Cirilian, Inc dba REC1 - Online Registration Sofware Registration ONLINE REGISTRATION AND SERVICING AGREEMENT FOR • PARKS,RECREATION,AND CULTURAL SERVICES DEPARTMENT City of Eagle,ID AND CIRILIAN,INC. dba REC1 This ONLINE REGISTRATION AND SERVICING AGREEMENT (the "Agreement") is made and entered into as of this day of MAN , 2013 by and between Cirilian, Inc., a Georgia corporation d/b/a "Reel" ("Reel"), whose address is 12460 Crabapple Road, Suite 202, #111, Alpharetta, GA 30004, and 6141„) ("Customer"), whose address is (p(QO • (V►Y. L r - eade, U 83(e l c WITNESSETH: WHEREAS, Red 1 is a corporation formed pursuant to the laws of the State of Georgia and is presently in existence and in good standing; and WHERAS, Customer is seeking a software registration system for its Parks, Recreation, and Cultural Services Department; WHEREAS, Customer desires to engage Reel for a specific term to provide a software registration system, as well as training and maintenance therefor, and Reel desires to be engaged by Customer in accordance with and subject to the terms and conditions hereafter set forth; and WHEREAS, the parties hereto believe it to be in their best interests to create a definite and certain Online Registration and Servicing Agreement under the terms and conditions set forth herein. NOW, THEREFORE, for and in consideration of the mutual promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The statements above are true and correct and herein incorporated into this Agreement by this reference. 2. Engagement. Customer hereby engages Reel to perform the services as more particularly described in the attached Exhibit"A"— Services Provided (the "Services Provided"). 3. Duties of Reel. Reel shall serve as the exclusive provider to Customer of the Services Provided. 4. Term. Customer and Reel hereby agree that this Agreement is terminable at will upon written notice by either party by regular first class mail to the address listed in Paragraph 12 below. The Agreement shall be terminated 30 days after receipt of such notice. The parties agree to continue performance thereunder until the effective date of termination unless the parties mutually agree to an earlier effective date of termination. Upon termination of this Agreement and expiration of any applicable notice period, the parties hereto shall have no further liability or obligation except as explicitly provided hereunder as surviving termination of the Agreement. 5. Payment Agreement. a. Fee for Basic Portal Services. Customer agrees to pay Rec 1 a monthly fee ("Basic Portal Services Fee") based upon usage, billed in arrears monthly in an amount equal to 1% per registration transaction fee collected by the Customer ("Customer Transactional Fee"). Rec 1 shall invoice Customer the first week of each month for Basic Portal Services Fees incurred during the prior month's processing. Such Basic Portal Services Fees charged by Rec1 do not include any transactional or monthly fees assessed by Customer's credit card processor. The minimum monthly Basic Portal Services Fee shall be $100. The Basic Portal Services Fee shall be independent of any Merchant Processing Fees described in subsection b below. b. Rec 1 Merchant Account. If Rec 1 provides the merchant account for the collection of registration and other credit card monies on behalf of Customer, it shall charge a monthly processing fee ("Merchant Processing Fee") as provided herein. Merchant Processing Fees will be calculated according to a tiered scale based on annual volume of credit card revenue processed, which is in addition to the Basic Portal Services Fee. All fees due and payable to Rec 1 will be deducted from the funds collected in the merchant account prior to disbursement. i. Tiered Merchant Processing Rates are as follows: Less than $100K in Credit Card Transactions Processed Annually = 4.00% $100K - $250K in Credit Card Transactions Processed Annually = 3.75% $250K - $500K in Credit Card Transactions Processed Annually = 3.50% $500K - $1M in Credit Card Transactions Processed Annually= 3.25% Over$1M in Credit Card Transactions Processed Annually = 3.00% ii. There are no monthly minimum fees for merchant processing. Customer simply pays for what it uses. iii. Reel reserves the right, at any time, to adjust the merchant processing rate to more accurately reflect the amount of credit card transactions being processed. Recl will give 30 days' notice upon such change. iv. In addition to the Merchant Fees and Basic Portal Services Fees, Customer will also be responsible for extraordinary processing fees assessed by Rec 1's merchant account beyond normal transaction fees. The most typical extraordinary fee would involve a payer reversing a charge on a credit card statement. In such case, Rec 1 shall invoice Customer the first week of each month for any such fees in excess of the funds collected in the Customer merchant account incurred during the prior month's processing. In any event, Customer shall only be responsible for payment to Rec 1 of actual, additional fees charged to Recl by the merchant as discussed under this subsection 5.b.iv. c. Payment. All amounts due and payable (and not collected through a merchant account, if applicable) must be remitted within 30 days of distribution of the applicable invoice. All invoices are distributed electronically and can be viewed online on the Recl website. i. Any payment not received from Customer by Recl within 60 days of distribution of the applicable statement shall be subject to an administrative fee in an amount equal to 1.5% per month of any outstanding and unpaid amount. d. Optional Training. Rec 1 will provide optional on-site training at a rate of $1,000 per day plus actual travel costs and expenses. Such on-site training includes 8 hours of training for as many Customer users as is reasonably necessary. e. Custom Development. Recl will provide customized development beyond the initial 10 hours of organizational customization listed above at a rate of$100 per hour. All work will be estimated and agreed upon with Customer prior to work start. f. Fully-Earned. All amounts owed to Recl hereunder are fully-earned upon provision of the Services Provided or other charged amounts hereunder, are not subject to withholding or off-set in any manner whatsoever, and are non-refundable upon payment subject only to a clear demonstration of an accounting error. Customer expressly acknowledges and agrees that Customer is familiar with the proposed Services Provided and Rec 1's billing process. Unless otherwise expressly herein provided, if Customer is not satisfied with the Services Provided or the performance of Rec 1 hereunder for any reason or no reason whatsoever, Customer's sole and exclusive remedy shall be to terminate this Agreement as herein provided, and Customer expressly waives any claim to a refund or other compensation. 6. Indemnification. Recl agrees to indemnify, defend and hold harmless Customer and its respective officers, directors, members, employees, agents, representatives and affiliates from and against all claims, suits, obligations, liabilities, actual damages and expenses, including, without limitation, reasonable attorneys' fees, based upon, arising out of or resulting from any liability, injury, or loss that Customer suffers in connection with the negligence or willful misconduct of Rec1 in performance of Reel's obligations under this Agreement. Customer agrees to indemnify, defend and hold harmless Rec 1 and its respective officers, directors, members, employees, agents, representatives and affiliates from and against all claims, suits, obligations, liabilities, actual damages and expenses, including, without limitation, reasonable attorneys' fees, based upon, arising out of or resulting from any liability, injury, or loss that Recl suffers in connection with the negligence or willful misconduct of Customer in connection with this Agreement. Further, Customer represents and warrants that any changes, customizations, added functions or options and any other related items to the Software (defined below) requested by Customer, if any, are not the proprietary work of a third party or owned by a third party, and Customer agrees to indemnify, defend and hold harmless Rec1 and its respective officers, directors, members, employees, agents, representatives and affiliates from and against all claims, suits, obligations, liabilities, actual damages and expenses, including, without limitation, reasonable attorneys' fees, based upon, arising out of or resulting from any liability that Reel suffers in connection with implementing such changes, customizations, functions, options or other items at the Customer's request. If any party hereto receives notice of an event or possible event that would give rise to indemnification as required hereunder, such party shall provide immediate notice to the other party of such event. Further, if either party that is to be indemnified and held harmless hereunder receives payment or other compensation from a third party, any such amount received shall be applied to any amounts owed by the indemnifying party to the indemnified party or to a third party. Finally, the indemnifying party shall have the right to choose counsel to defend the indemnified party, to be accepted or rejected in the indemnified party's reasonable judgment. If the parties cannot come to agreement as to a choice of legal representation, the indemnifying party shall have the sole, final determination. Neither party shall be responsible for payment of any amount or any damages in excess of such amount actually incurred or suffered by the indemnified party. 7. Relationship of Parties. The Customer and Red 1 agree that Reel is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. The Customer shall not be obligated to pay to Recl, and Reel shall not be entitled to, any benefits accorded to Customer employees by virtue of the services provided under this Agreement. The Customer shall not be responsible for withholding or otherwise deducting federal income tax or social security or any other tax, for contributing to the state industrial insurance program or otherwise assuming the duties of an employer with respect to Rec 1. 8. Waiver of Breach. The waiver by either party of a breach of any of the provisions of this Agreement shall not be construed as a waiver by such waiving party of any subsequent breach by the offending party. 9. Binding Effect. Assignment. The rights and obligations as provided under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of each party hereto. 10. Entire Agreement. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, oral or written, with respect to the subject matter hereof. This Agreement may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge is sought. 11. Governing Law and Venue. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS. THE VENUE FOR ANY LITIGATION UNDER THIS AGREEMENT SHALL BE IN FULTON COUNTY, GEORGIA. 12. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and if sent by certified or registered mail, first class, return receipt requested to the parties at the following addresses: To Customer: Attn: e-mail: To Rec 1: 12460 Crabapple Rd Suite 202, #1 11 Alpharetta, GA 30004 Attn: Landon Schenck e-mail: Ischenck r?rec.I.com 13. Strict Construction. The language used in this Agreement shall be deemed to be in the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied for or against any party by reason of such party being deemed the draftsman hereof. 14. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 15. Severability. If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 16. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 17. Litigation and Attorneys' Fees. If it shall be necessary for either party to this Agreement to bring suit to enforce any provisions hereof or for damages on account of any breach of this Agreement, the substantially prevailing party on any issue in any such litigation and any appeals therefrom shall be entitled to recover from the other party, in addition to any damages or other relief granted as a result of such litigation, all costs and expenses of such litigation and a reasonable attorneys' fee as fixed by the court. 18. Insurance. During the term of this Agreement, Recl shall procure and maintain, at Recl's sole cost and expense, the following insurance coverages: Technology Liability - $1,000,000 Per Claim/$1,000,000 Aggregate General Liability/Auto - $1,000,000 Per Claim/$2,000,000 Aggregate 19. Ownership of Software, Website, and Portal and Remedies Related Thereto. Customer agrees that it has no right, title, interest or ownership in, or to, the software, website, or portal utilized by Rec 1 to provide the Services Provided, or any of its components, programming code or data structures, images or functions or any copies or modifications of the software, User Manuals, or any components, code or data structures thereof or in the software (collectively, the "Software") except to the extent that Rec l grants the right to use the Software. The Software shall remain at all times Recl's sole and exclusive property. The definition of "Software" shall also include any changes, customizations, added functions, or options and any other related items requested by the Customer and implemented by Reel, it being hereby expressly acknowledged and agreed that such changes, customizations, functions, options, and items are and shall be the sole and exclusive property of Recl and the Customer shall have no right or claim to such changes, customizations, functions, options, or items or any compensation whatsoever related thereto. Customer shall not reproduce or copy any Software or portion thereof without Recl's prior written consent. The obligations set forth in this Paragraph shall survive the termination, cancellation, or expiration of this Agreement for any reason whatsoever. Customer agrees that, in the event of a breach or threatened breach by Customer of the provisions of this Agreement, Reel shall be entitled to both a temporary and permanent restraining order and a preliminary injunction, or other similar remedy, restraining Customer or any affiliate, officer, agent or assignee from violating the terms of this Agreement. Customer specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damage that would be suffered and incurred by Recl as a result of a breach of any of the provisions of this Paragraph. Such remedy with respect to the provisions of this Paragraph is non-exclusive and shall be in addition to any other remedy available to Reel at law or in equity. 20. Warranty. If the Customer determines that some functions/capabilities within RECI are not performing up to required specifications, Recl will take commercially reasonable measures to remedy such situation during the term of this Agreement at no additional charge to the Customer. Recl does not guarantee that Recl will implement any and all new enhancement and module requests but will take commercially reasonable efforts to provide features that perform as designed. [Remainder of page intentionally blank. Signature page follows.] IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. CUSTOMER Customer Signatory 5 /� Name: �t� m 2`3 0. ���'�ignature: ///����CCCC Title: c\ktecOr Date: 3"..._/e/_ / j CIRILIAN,INC. (d/b/a Recl) C, AA Name: Landon Schenck Signatur •• _ "L ` --/- � Title: President Date: £ -2o I3 Exhibit"A" Services Provided Services provided by Rec 1 to the Customer under this agreement include the following: • Access — Rec 1 hereby grants a non-exclusive license during the term of the Agreement for the Customer and patrons of the Customer recreational programming to access, use and display Reel's online registration service (the "Portal"). Excluding occasional maintenance, the Software shall be available 24 hours per day, seven days per week with a guaranteed uptime of 95%. The Portal is accessible via the public Internet from any PC with an Internet connection. There is no limit to the number of organization users and participants that can enroll using the Portal. • Training — Rec1 agrees to provide up to 5 hours of remote training per year to Customer personnel at no additional charge. • Online Registration — The Rec 1 registration engine through which the Portal is accessed can be integrated with Customer's website. Rec1 will format a registration page to match the colors and theme of the rest of Customer's website. Customer would then display a link on its own page that would seamlessly redirect the user to a secure page on the Recl server. • Documentation - All Recl startup and user's guides are maintained electronically in the system and can be accessed through the "Help Center" from within Rec 1. Reel does not provide paper copies of its guides and help files. • Data Backups — Recl currently performs backups daily of all of its data(6:00 AM). In case of emergency, Rec 1 may restore data to the point of the previous backup. • Enhancements — New features will be added to Rec1 throughout the term of this Agreement. Customer will have full access to all of these new features without additional charge. Customer is also encouraged to submit change requests as they see opportunities for improvement. Reel will attempt to implement any and all changes that improve the value of Reel to all of our customers at no charge. Thereafter, Customer will be charged a development fee at a $100 hourly rate for custom requests. All work will be estimated and agreed upon in writing by the parties hereto prior to work start. • Customer Support — Rec1 shall provide an online utility for problem reports and change requests. Customer may also reach Recl by phone at 1-800-335-1863 between the hours of 9:00 AM and 6:00 PM Eastern Standard Time, Monday through Friday and excluding national holidays. E-mail support is also available at support @rec1.com. After-hours support is often available but is not guaranteed. Emergencies will be handled as soon as possible. Enhancement requests will be queued based on priority and implemented on a schedule. Reel shall have sole and absolute discretion as to whether support requests exceed reasonable use or exceed the scope of services outlined in this Agreement. If the parties hereto cannot agree on levels or limits of acceptable support use, then each party hereto has the option to terminate this Agreement as outlined in Paragraph 4. • Data — In the event Customer no longer wishes to use Reel, Rec I will export Customer data based on a requested format (in most cases). If the data exporting request is initiated by Customer, development will be charged at a $100 hourly rate. All work will be estimated and agreed upon in writing by the parties hereto prior to work start. Red Pricing Quote-City of Eagle, ID Red April 29,2013 Red Pricing Quote Provided for City of Eagle, ID Software Licensing (REQUIRED) Ongoing Licensing Fee 1% per Net Transaction Invoiced Monthly Initial Software Licensing Fees $0 Monthly Minimum Fee $100/month Note:This is only a monthly minimum meaning that it takes effect only if 1%of the total transactions for your account in a given month is not more than the specified minimum. Included Services Cost Unlimited Phone, Email, and Web Support $0 Up To 10 hrs/month Billable Development Time $0 5 hrs/Year Remote (Web and Phone Based)Training $0 Unlimited Sites and Users on the System $0 Merchant Fees/Credit Card Processing-(One of two options is REQUIRED) Option 1: Rec1 collects and disburses all credit card monies Tiered Transaction Fee Applies Table of tiered fees. Annual volume will be estimated in Year 1 (based on annual volume of credit Less than$100K in Credit Card 4.00% card transactions processed) Transactions Processed Annually $100K-$250K in Credit Card Transactions 3.75% This fee is assessed separately from Processed Annually the software fee of 1%. $250K-$500K in Credit Card Transactions 3.50% [Confidential] Reel Pricing Quote-City of Eagle, ID Reel April 29,2013 Processed Annually Over$500K in Credit Card Transactions 3.25% Processed Annually Over$I M in Credit Card Transactions 3.00% Processed Annually Option 2: Red interfaces to the client's existing merchant account If you have a merchant account and have a payment gateway enabled on it(typically Authorize.net), Red will interface directly to your merchant account, and you will not be assessed any merchant fees from Rec1. You will pay those directly to your merchant provider. Transaction Fee: FREE [Confidential] Red Pricing Quote-City of Eagle, ID Red April 29,2013 Note: All costs from here down are optional and only apply if the customer desires any of the services listed Interface Development Fees(Optional) Interface to 3rd Party Payment Gateway(or similar) $1,000 *Would only apply if Reel is not the"Merchant".Reel can make a final determination on whether this fee applies as soon as a payment gateway name is provided. Interface to Desired Financial/ERP Package Does Not Apply (Typically-$2,500) Upfront Development Fees (Optional) Hourly Work on any custom modules Does Not Apply (Typically$100/hr) Hourly Work on legacy data imports Does Not Apply (Typically$100/hr) Note:All custom development will be estimated and agreed upon prior to workstart. Training/Travel/Onsite Costs(Optional) Flat Fee for Onsite Training/Work Does Not Apply(Typically$1,000 per day) Travel Reimbursement Does Not Apply(RT Flight Per Resource) Rental Car/Taxi Reimbursement Does Not Apply (Car plus Fuel) Hotel Does Not Apply (Per Night Per Resource) Per Diem (Food) Does Not Apply ($75 Per Day Per Resource) [Confidential] Red Pricing Quote-City of Eagle, ID Red April 29,2013 Summary of Upfront Costs Merchant Interface Costs (If Red Merchant option is not selected) $0.00 *assumes Red or other standard gateway is selected Onsite Training Costs N/A* Typical: $1,000 per day *assumes no onsite training Estimated Travel Costs for Training and Initial Onsite Work N/A* Typical: o Round Trip Flight *assumes no onsite o Hotel Rooms per night training o Rental Car o Per diem Data Transformation from Existing System N/A* Standard Rate: $100/hr *assumes no data import Total Upfront Costs $0.00 Notes on Hardware: • Red pricing does not include any hardware peripherals like PC's, credit card readers, barcode readers, etc. • These hardware costs are separate and will be the responsibility of the client. • Red can assist in identifying hardware needs and procuring hardware for use with the Red system. • Red can also assist in hardware installation and training. • Applicable hourly/onsite fees (listed above)will apply. • The customer has no server costs. Those are included in the pricing. [Confidential]