Amilia Agreement - IIS Windows Server
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Amilia Agreement
Prepared for:
City of Burleson
Amilia
1751 Rue Richardson #3.105
Montreal, Quebec, H3K 1G6
www.smartrec.comwww.smartrec.com
The Agreement
This agreement is between the following parties:
City of Burleson Amilia Technologies USA Inc.
Represented by: Jen Basham, Represented by: William Owens, Sales
Director of Parks and Recreation Executive
550 NW Summercrest Blvd 1209 N Orange St
Burleson, TX 76028 Wilmington, DE, 19801-1120
United States United States
The parties agree to the following terms & conditions:
A. Duration & Fees
Duration: 60 months, starting on March 1st, 2021
Annual Fees: $30,000 billed monthly ($2500 per month)
Total contract value including implementation shall not exceed $161,000.00
B. Payment processing costs via Amilia Payment powered by Card Connect
• Credit cards: 2.5% + $0.30 per transaction
• eCheck (ACH): 0.5% + $0.25 per transaction
Additional fees passed through directly from credit card companies may be applied. Examples
include, but are not limited to, credit card chargebacks, reversals and retrievals, and returns on e-
checks due to insufficient funds.
C. Professional Services
• $11,000 one-time fee
D. Appendices
This Agreement incorporates all the terms and conditions specified in the following
Appendices attached to this Agreement:
• Appendix A – Amilia Terms and Conditions
• Appendix B – Burleson Standard TermsCity of Burleson, Texas (City): Amilia Technologies USA Inc. (Vendor): By:________________________ By:_____________________________ Printed: Bryan Langley Printed:__________________________ Title: City Manager Title:____________________________ Date: February 15, 2021 Date:____________________________
Appendix A: Amilia Terms and Conditions
1. The Amilia Solution passport, national ID and driver’s license numbers); (ii) all
a. Platform & API. Amilia’s and/or SmartRec financial account numbers (including payment or credit card
e-commerce platform (“Platform”) provides (i) a virtual storefront numbers and bank account numbers); (iii) individually
that is designed to increase the revenue and streamline the identifiable health information; (iv) biometric information; (v) all
operations of programs and (ii) an application program interface data obtained from a consumer reporting agency (such as
(“API” and, collectively with the Platform, the “Amilia Solution”) employee background investigation reports, credit reports, and
to enable access to the Platform. The uses of the Amilia Solution credit scores); and (vi) data elements revealing race, ethnicity,
(including use of the API through a third-party product that national origin, religion, trade union membership, sex life or
accesses the Platform) are subject to the terms of this sexual orientation, and criminal records or allegations of crimes.
Agreement.
f. Privacy. Amilia complies in all material respects
b. License Grant. Subject to you paying the license with all applicable laws regarding the collection and the use of
fees agreed upon with Amilia herein in accordance with section any End User Information, the Amilia Privacy Policy
1 c. herein, Amilia grants you a personal, limited, non-exclusive, (https://www.amilia.com/legal/privacy) and the obligations of
revocable, non-transferable license, non-sublicensable license Amilia under Section 1.d. For more clarity, Amilia’s sole
to electronically access and use the Amilia Solution. The Amilia responsibility for the collection and the use of any End User
Solution includes any software, programs, documentation, tools, Information is limited to the foregoing.
internet-based services, components, and any updates
(including software maintenance, service information, help g. Availability. Subject to any emergency
content, bug fixes or maintenance releases) thereto provided to maintenance performed on an unscheduled basis and any
you by Amilia. Amilia reserves for itself all other rights and downtime resulting from such emergency maintenance and
interest not explicitly granted under this Agreement. except for any and all planned downtime, Amilia will use
commercially reasonable efforts to operate and maintain the
c. License Fees. You agree to pay to Amilia the Amilia Solution so as to make it available 24 hours a day, 7 days
license fees agreed upon with Amilia herein within five (5) a week. The number and the duration of any planned downtime
business days of date of invoice issued by Amilia. Such license shall be at Amilia’s sole discretion, provided, however, that
fees are based on amount of your estimated annual sales you Amilia intends to use commercially reasonable efforts to
provided to Amilia at the time of execution of this Agreement. schedule such planned downtime during evening and weekend
You acknowledge and agree that Amilia reserves the right to hours (Eastern Time).
adjust such license fees during the term of this Agreement or any
renewal term thereof in the event of a material change between h. Amilia Representations and Warranties. Amilia
the amount of your estimated annual sales provided to Amilia represents and warrants to you that: (i) it has all necessary rights
and the amount of the annual sales processed through the in the Platform and its intellectual property to grant to you the
Amilia Platform. licences under this Agreement; and (ii) the Platform will perform
substantially in accordance with the Documentation. Amilia
d. Customer Service Support. Subject to Section 2 does not guarantee that the Platform will perform error free or
d., Amilia will use commercially reasonable efforts to resolve any uninterrupted. Customer acknowledges that Amilia does not
technical issues relating to your Amilia account (“Account”) and control the transfer of data over communications facilities,
your use of the Amilia Solution. including the internet and that the Platform may be subject to
limitations, delays and other problems inherent in the use of
e. Security. Amilia maintains the administrative, such communications facilities. For purposes of this provision,
technical and physical procedures to protect End User “Documentation” means the user guides, online help, release
Information stored on Amilia servers from unauthorized access, notes, training materials and other documentation provided or
accidental loss or modification. However, Amilia does not made available by Amilia to you regarding the use or operation
guarantee that unauthorized third parties will never be able to of the platform, as may be amended from time to tome by Amilia,
defeat those measures or use such information for improper at its sole discretion. EXCEPT AS EXPRESSLY STATED IN
purposes. For purposes hereof, “End User Information” means: THIS SECTION OR AS REQUIRED BY APPLICABLE LAW,
information or data created, collected, generated, licensed, THE PLATFORM, THE API AND THE DOCUMENTATION ARE
leased, on your behalf or information or data otherwise under the PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS,
control or responsibility of you wherever located, including, but WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED,
not limited to, Personal Information or Sensitive Personal OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY
Information, that are disclosed or otherwise made available to IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
Amilia by you pursuant to or as part of this Agreement. “Personal FITNESS FOR A PARTICULAR PURPOSE, AND NON-
Information” means any and all information or data (regardless INFRINGEMENT.
of format) that (i) identifies or can be used to identify, contact or
locate an individual, or (ii) that relates to an individual, whose 2. Your Engagement.
identity can be either directly or indirectly inferred, including any a. Use. You represent, warrant and covenant that
information that is linked or linkable to that individual regardless you: (i) shall use the Amilia Solution as contemplated by this
of the citizenship, age, or other status of the individual. Personal Agreement, (ii) have the sole responsibility for the accuracy,
Information includes but is not limited to: first and last name; last quality, integrity, legality and reliability of your data; (iii) shall use
name plus data regarding birth; phone number; email address; commercially reasonable efforts to prevent unauthorized access
street address; geolocation; customer number or identifier; to, or use of, the Amilia Solution, and promptly notify Amilia of
government identifier; or account number or identifier. any such unauthorized use; (iv) are, and will remain during the
“Sensitive Personal Information” is a subset of Personal term of this Agreement, in compliance with all applicable laws in
Information, which due to its nature has been classified by law connection with your use of the Amilia Solution; and (v) shall use
as deserving additional privacy and security protections. the trademarks, names, references, logos or other marks owned
Sensitive Personal Information consists of: (i) all government- or licensed by Amilia (collectively, the “Amilia Trademarks”)
issued identification numbers (including social security, strictly in accordance with the restrictions and policies thatAmilia may provide you with from time to time. You will not; (i) rebates, functionality and warranty, technical support and
license, sublicense, sell, resell, rent, lease, assign, distribute, feedback concerning experiences with your personnel, policies
timeshare or otherwise commercially exploit or make the Amilia or processes. In performing customer service, you will always
Solution available to any third party, other than as contemplated present yourself as a separate entity from Amilia.
in this Agreement; (ii) send spam or otherwise duplicative or
unsolicited messages using directly or indirectly the Amilia e. Privacy. You acknowledge having reviewed the
Solution in violation of applicable law; (iii) send, store or use Amilia Privacy Policy (https://www.amilia.com/legal/privacy)
obscene, threatening, libellous or otherwise unlawful or tortious relating to the collection, use and safeguard of the personal
material using directly or indirectly the Amilia Solution; (iv) send, information provided to Amilia on its website. If you receive
store or use any material violating third party rights including, but information about others through the use of the Amilia solution,
not limited to, Intellectual Property Rights (as defined herein) or you must keep such information confidential and only use it in
privacy rights using directly or indirectly the Amilia Solution; (iv) connection with the Amilia Solution and your policies relating to
send, store or use material containing harmful computer codes, the use of information that is confidential or personal or as
files, scripts, agents or programs using directly or indirectly the otherwise permitted by applicable law. You may not disclose or
Amilia Solution; (v) interfere with or disrupt the integrity or distribute any such information to a third party or use any such
performance of the Amilia Solution or the data contained therein; information for marketing purposes unless you received express
(vi) attempt to gain unauthorized access to the Amilia Solution written consent to do so.
or its related systems or networks; (vii) modify, copy or create f. Your Representations and Warranties. You
derivative works based on the Amilia Solution or Amilia’s represent and warrant to Amilia that: (a) you are eligible to
Intellectual Property Rights therein; (viii) create internet links to register and use the Amilia Solution and have the right, power,
or from the Amilia Solution, or frame or mirror any content and ability to enter into and perform under this Agreement; (b)
forming any part of the Platform other than on your own website the name identified by you when registering is your name or
for the purposes hereof or otherwise for your own internal business name under which you sell goods and services; (c) any
business purposes; or (ix) disassemble, reverse engineer or sales transaction submitted by you will represent a bona fide
decompile the Amilia Solution for any purpose or reason; sale by you; (d) any sales transactions submitted by you will
accurately describe Your License for your services sold and
b. Suspicion of Unauthorized or Illegal Use. Amilia delivered to your customers; (e) you will fulfill all of your
reserves the right to decline any transaction submitted to the obligations to each customer for which you submit a transaction
Platform which Amilia reasonably suspects, in its sole discretion, and will resolve any consumer dispute or complaint directly with
(i) is in violation of this Agreement or any other Amilia Agreement your customer; (f) all transactions initiated by you will comply
to which you are a party or is in violation of applicable law, or (ii) with all applicable laws, rules, and regulations applicable to your
exposes either party to harm, including but not limited to fraud business, including any applicable tax laws and regulations; and
and other criminal acts. You hereby grant Amilia authorization (g) you will not use the Amilia Solution, directly or indirectly, for
to share information with law enforcement about you, your any fraudulent undertaking or in any manner so as to interfere
transactions, or your Account if Amilia reasonably suspects that with the use of the Amilia Solution in accordance with the terms
your Account has been used for an illegal or criminal purpose. of this Agreement.
Amilia will give you prompt advance notice of any impending
disclosure of your information to law enforcement and grant you, 3. Suspension or Termination
or your attorneys, the possibility to participate in any police or a. Suspension. With reasonable advance notice to
legal proceeding; and you, Amilia may suspend your Account and your access to the
Amilia Solution if Amilia reasonably determines in its sole
discretion that your use of the Amilia Solution is causing
c. Your Content. For the term of this Agreement, you immediate, material and ongoing harm to the Amilia Solution or
grant a non-exclusive, non-transferable, royalty-free, fully-paid, its use by others or abuse or excessively frequent requests to
worldwide license, to use, copy, publicly perform, publicly the Platform via the API, as determined by Amilia in its sole
display, reformat, translate, excerpt (in whole or in part), discretion. Amilia will use commercially reasonable efforts to
sublicense, distribute, prepare derivative works of, or resolve the issues causing the suspension of your Account.
incorporate into other works any and all information about your Amilia is not liable to you or any other person for any damages
goods and services (“License for your services”), including any resulting from a suspension under these circumstances.
trademarks, trade names, service marks, logos, images,
descriptions or other text, telephone numbers, and addresses b. Term. Termination. This Agreement may be
therein, for any purpose, whether on the Amilia public website, immediately terminated by you or by Amilia: (i) as set forth in
third-party websites, mobile applications, syndicated Section 7.i; (ii) if the other party is in material breach of any of
advertisements or otherwise. The license rights granted hereby the provisions of the Agreement and such breach is not cured
will apply to any form, media, or technology. The creation, within 30 days after receipt of notice from the non-breaching
distribution, transmission, public display and performance, party; or (ii) if either party commits an Act of bankruptcy. For
accessing, downloading and copying of your information purposes of this Section3.b.(ii), an “Act of bankruptcy” shall
pursuant to the license rights granted to Amilia by this Section2, mean, (i) the entry of a decree or order for relief of a party by a
to the best of your knowledge, does not and will not infringe any court of competent jurisdiction in any involuntary case involving
rights, including but not limited to Intellectual Property Rights or a party under any bankruptcy, insolvency, or other similar law
privacy rights, of any third party. now or hereafter in effect; (ii) the appointment of a receiver,
liquidator, assignee, custodian, trustee, or other similar agent for
d. Customer Service. You are solely responsible for a party or for any substantial Part of a party’s assets or property;
all customer service issues relating to your License for your (iii) the filing with respect to a party of a petition in any such
services, including pricing, order fulfillment, order cancellation involuntary bankruptcy case, which petition remains un-
by you or the customer, returns, refunds and adjustments, dismissed for a period of ninety (90) days or which is dismissedor suspended pursuant to Section 305 of the Federal Bankruptcy and development, independent of disclosures by the Disclosing
Code (or any corresponding provision of any future United Party; or (v) information that the Receiving Party received from
States bankruptcy law); (iv) the commencement by a party of a third parties, provided that such information was not obtained,
voluntary case under any bankruptcy, insolvency, or other directly or indirectly, from the Disclosing Party on a confidential
similar law now or hereafter in effect; or (v) the making by a party basis. Notwithstanding anything in this Agreement to the
of any general assignment for the benefit of creditors. contrary, the Receiving Party may disclose confidential
information pursuant to any governmental, judicial, or
c. Effects of Suspension or Termination. Upon administrative order, subpoena, discovery request, regulatory
suspension or termination of this Agreement, you agree: (i) to request or similar requirement, provided that the Receiving Party
immediately deactivate your Account and your access to the promptly, to the extent legally permissible and practicable,
Platform; (ii) to immediately cease use of the Amilia Solution; (ii) notifies the Disclosing Party in writing of such demand for
to discontinue use of any Amilia Trademarks or other Intellectual disclosure so that the Disclosing Party, at its sole expense, may
Property Rights of Amilia and to immediately remove any Amilia seek to make such disclosure subject to a protective order or
Trademarks from your website; (iii) that the license granted by other appropriate remedy to preserve the confidentiality of the
Amilia to you under this Agreement shall terminate; (iv) that confidential information. The Receiving Party shall not oppose
Amilia may immediately deactivate your Account and your and shall cooperate with efforts by the Disclosing Party with
access to the Platform and after 60 days, Amilia may delete your respect to any such request for a protective order or other relief.
Account from Amilia’s “live” site. During such 60 days and upon Notwithstanding the foregoing, if the Disclosing Party is unable
your written request, Amilia will grant you limited access to the to obtain or does not seek a protective order and the Receiving
Platform for sufficient time for the sole purpose of allowing it to Party is legally requested or required to disclose such
retrieve your data, provided you have paid in full all amounts confidential information, disclosure of such confidential
owed to Amilia up to the date of suspension or termination of this information may be made without liability. The Receiving Party
Agreement; and (iv) that you will not be refunded the remainder shall, upon any request by the Disclosing Party, immediately
of any fees that you paid for the Amilia Solution prior to return or destroy the Disclosing Party’s Confidential Information
termination or suspension; and (v) that Amilia will not be liable and all portions and copies thereof, which are in Receiving
to you for compensation, reimbursement, or damages in Party’s possession or control. If the Receiving Party discloses or
connection with your use, termination, suspension of the Amilia uses (or threatens to disclose or use) any Confidential
Solution or deletion of your information or account data. Information of the Disclosing Party in breach of this Section 4,
4. Confidential Information. “Confidential Information” shall the Disclosing Party shall have the right, in addition to any other
mean the terms and conditions of this Agreement, any pricing remedies available to it, to seek injunctive relief to enjoin such
information provided by either party (a “Disclosing Party”) and acts, without the requirement of posting a bond, it being
any information about the Disclosing Party which the other party specifically acknowledged by the Parties that any other available
(a “Receiving Party”) received or may in the future receive in remedies are inadequate.
connection with this Agreement which is not otherwise available 5. Intellectual Property Rights. All patents, patent
to the general public without restriction as well as any and all applications, copyright, names, trademarks, service marks,
other Intellectual Property Rights, proprietary knowledge, trade trade dress, know-how, trade secrets, industrial designs, other
secrets, customer lists or information concerning the Disclosing similar instruments or rights whether proprietary or otherwise,
Party’s internal affairs, technical information, specifications, whether registered or unregistered, and all rights in relation to
drawings, documentation and "know-how" of every kind and any of the foregoing which are recognized in any jurisdiction
description supplied by the Disclosing Party, or indirectly by any (“Intellectual Property Rights”) owned or held by Amilia shall
of its affiliates, under this Agreement or otherwise. All always remain Intellectual Property Rights of Amilia. Nothing in
Confidential Information of a Disclosing Party is, and shall this Agreement shall be construed or interpreted as conferring
remain, the exclusive property of the Disclosing Party. The upon you any right or interest in the Intellectual Property Rights
Receiving Party shall treat and protect the Confidential owned or held by Amilia, whether in the Platform, the API or
Information of the Disclosing Party as confidential and shall not otherwise, other than as expressly set forth in this Agreement.
reproduce or divulge the Confidential Information of the All data entered or uploaded by you, except for transaction data
Disclosing Party in whole or in part to any third party, except as shared with the user, is your sole and exclusive property. Amilia
authorized in writing by the Disclosing Party or as permitted by is free to use or disclose any comments or ideas that you submit
this Agreement. The Receiving Party may disclose Confidential to Amilia without any compensation to you. You further
Information only to its affiliates, employees, directors or officers acknowledge that, by acceptance of your suggestions for any
on a “need to know” basis, provided that each such affiliates, feature or aspect of the Platform or the API, Amilia does not
employee, director or officer, as applicable, shall have signed a waive any rights to use similar or related ideas previously known
confidentiality undertaking no less restrictive than the provisions to Amilia, or developed by your employees, or obtained from
of this Section 4. Notwithstanding any provisions contained in sources other than yours.
this Agreement, the Receiving Party shall not be required to
maintain in confidence the following information: (i) information
which, at the time of disclosure to the Receiving Party, is in the
public domain; (ii) information which, after disclosure, becomes
part of the public domain by publication or otherwise, except by
breach of this Agreement by the Receiving Party; (iii) information
that was in the Receiving Party’s possession at the time of
disclosure by the Disclosing Party, provided that such
information was not obtained, directly or indirectly, from the
Disclosing Party on a confidential basis; (iv) information that the
Receiving Party can demonstrate resulted from its own research6. Liability, Limitation of Liability and Indemnification (EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT
PERMITTED BY APPLICABLE LAW); (C) INTERRUPTION OR
a. Your Liability CESSATION OF TRANSMISSION TO OR FROM THE
To the extent permitted by law, you will, at your own expense, PLATFORM OR THE API, NOT CAUSED BY THE GROSS
defend and indemnify Amilia, its shareholders, directors, NEGLIGENCE OF AMILIA; (D) ANY SOFTWARE BUGS,
officers, affiliates, agents, employees and representatives (the VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE
“Amilia Parties”) harmless from and against all claims, suits and THAT MAY BE TRANSMITTED TO OR THROUGH THE
proceedings (“Claims”) (i) alleging that your data or any of your PLATFORM OR THE API, NOT CAUSED BY THE GROSS
trademarks, or Amilia’s use thereof in accordance with this NEGLIGENCE OF AMILIA; (E) ERRORS, INACCURACIES OR
Agreement, infringes the Intellectual Property Rights or other OMISSIONS IN ANY CONTENT OR INFORMATION
rights of, or has caused harm to, a third party; (ii) arising out of PROVIDED BY YOU OR ANY THIRD PARTY, AND/OR (F) THE
your breach of Section 4. (Confidential Information); (iii) arising DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF
out of your access to or use of the Amilia Solution other than in ANY THIRD PARTY.
accordance with the terms of this Agreement; or (iv) arising out (iii) WITHOUT LIMITING THE FOREGOING
of the negligence or wilful misconduct by you or any of your PROVISIONS OF THIS SECTION, THE CUMULATIVE
employees or agents; and will hold the Amilia Parties harmless LIABILITY OF (I) AMILIA, (II) SUPPLIERS OR LICENSORS OF
from and against all liability, damages, expenses and costs AMILIA, AND (III) ANY OF THE RESPECTIVE AFFILIATES,
finally awarded or agreed to be paid in settlement (including, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS AND
without limitation, reasonable legal fees ) (collectively, “Losses”) EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II)
to the extent based upon such a Claim. ABOVE SHALL BE LIMITED TO DIRECT DAMAGES AND IN
ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE
b. Amilia Liability THE AMOUNT OF PLATFORM FEES PAID BY YOU TO
Amilia, at its own expense, will defend and indemnify you from AMILIA DURING THE THREE (3) MONTH PERIOD
and against any and all Claims (i) alleging that the Platform, and IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
your use of the Platform in accordance with this Agreement, THE CLAIM FOR LIABILITY OR THE LOSS. THE
infringes the Intellectual Property Rights or other rights of, or has LIMITATIONS APPLY EVEN IF AMILIA HAS BEEN ADVISED
caused harm to, a third party; (ii) arising out of our breach of OF THE POSSIBILITY OF SUCH DAMAGE.
Section 4 (Confidential Information); or (iii) arising out of the
negligence or wilful misconduct by it or its employees or agents. 7. General Terms
If a Claim is brought or threatened against you alleging a. Disputes; Choice of Law; Jurisdiction and Venue.
infringement of the Intellectual Property Rights of a third party, The validity of this Agreement, the construction and enforcement
Amilia will, at our sole option and expense, use commercially of its terms, and the interpretation of the rights and duties of the
reasonable efforts either (a) to procure a license that will protect parties shall be governed by the laws of the State of New York,
you against such Claim without cost to you; (b) to modify or without regard to conflict of law rules. The parties hereto agree
replace all or portions of the Platform as needed to avoid to the exclusive jurisdiction of the courts of New York for any
infringement, such update or replacement having substantially legal controversy arising in connection with this Agreement.
similar or better capabilities; or (c) if (a) and (b) are not NOTWITHSTANDING ANY PROVISIONS TO THE
commercially feasible, terminate the Agreement. The rights and CONTRARY IN THIS PROVISION, IN THE EVENT OF ANY
remedies granted to you in this section state Amilia’s entire VIOLATION OF THIS AGREEMENT, EITHER PARTY MAY
liability, and are your exclusive remedy, with respect to any claim INITIATE AN ACTION SEEKING INJUNCTIVE RELIEF
of infringement of the Intellectual Property Rights of a third party. BEFORE ANY COURT OF COMPETENT JURISDICTION.
c. Limitation of Liability b. No Waiver or Limitation. A party’s failure to assert
any right or provision under this Agreement shall not constitute
(i) IN NO EVENT SHALL (I) EITHER PARTY, a waiver of such right or provision. This Agreement does not limit
(II) ITS RESPECTIVE SUPPLIERS OR LICENSORS, AS any rights that either party may have under trade secret,
APPLICABLE OR (III) ANY OF THE RESPECTIVE copyright, patent or other laws.
AFFILIATES, AGENTS, SHAREHOLDERS, DIRECTORS,
OFFICERS AND EMPLOYEES OF ANY OF THE ENTITIES c. Right to Change. At any time during the term of
LISTED IN (I) OR (II) ABOVE, BE LIABLE FOR ANY LOST this Agreement or any renewal term thereof, Amilia has the right
PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, to change, delete, discontinue, or impose conditions on any
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY feature or aspect of the Platform or the API that Amilia in its sole
DAMAGES ARISING OUT OF, IN CONNECTION WITH OR discretion deem to be reasonable in the circumstances,
RELATING TO THIS AGREEMENT OR THE PLATFORM OR including by way of a notice on its website, by email or any other
THE API. website maintained or owned by Amilia for the purposes of
providing services in connection with this Agreement. Any use
(ii) UNDER NO CIRCUMSTANCES WILL of the Platform after its publication of any such changes shall
AMILIA BE RESPONSIBLE FOR: (A) ANY DAMAGE OR LOSS constitute your acceptance of such change.
RESULTING FROM HACKING, TAMPERING OR OTHER
UNAUTHORIZED ACCESS OR USE OF THE PLATFORM, d. Amendment. This Agreement may not be
THE API, YOUR ACCOUNT, THE PLATFORM SERVERS OR amended or modified except in writing signed by both parties.
ANY INFORMATION CONTAINED THEREIN (EXCEPT FOR e. Disclosures and Notices. You agree and accept
BREACHES OF AMILIA’S OBLIGATIONS DESCRIBED IN that Amilia can provide disclosures and notices regarding the
Section 1.e.); (B) LOSS OR PROPERTY DAMAGE, OF ANY Platform and the API to you by posting such disclosures and
NATURE WHATSOEVER, RESULTING FROM YOUR notices on its website or emailing them to the administrator’s
ACCESS TO OR USE OF THE PLATFORM OR THE API email address listed in your Account.f. Independent Contractor. Nothing in this the termination of this Agreement, including without limitation
Agreement shall be construed in any manner to create between Sections 3 and 4 of this Agreement.
the parties the relationship of joint venturers or partners,
employer and employee, master or servant. Neither party shall m. Currency. Monetary amounts stated, advanced,
be obligated nor bound by any agreements, representations or paid or calculated in or pursuant to this Agreement are and shall
warranties made by the other party. be stated, advanced, paid or calculated in the agreed upon
currency in the Agreement.
g. Successors and Assignment. This Agreement is
binding upon the parties and their respective successors and n. Counterpart. This Agreement may be executed in
permitted assigns. This Agreement, and any rights granted and any number of counterparts, and each such counterpart hereof
obligations hereunder, may not be transferred or assigned will be deemed to be an original instrument, but all such
without the prior written consent of Amilia. counterparts together will constitute but one agreement.
Transmitted copies (reproduced documents that are transmitted
h. Parties. Third Party Platforms and Links to Other via photocopy, facsimile or any other process that accurately
Websites. You may be offered services, products and transmits the original, for example by email receipt of scanned
promotions provided by third parties and not by Amilia, and the documents) are considered documents equivalent to original
Amilia website may contain links to third-party websites as a documents and signatures so transmitted and received shall be
convenience to you. If you decide to use these third-party treated for all purposes of this Agreement as original signatures
services, you will be responsible for reviewing and and shall be deemed valid, binding and enforceable by and
understanding the terms and conditions associated with these against the parties.
services. Amilia is not responsible for the performance of these
services and does not approve of, endorse or warrant the
performance of these services. When you use any such link to
go from Amilia’s websites to another website, the Amilia Privacy
Policy is no longer in effect.
i. Force Majeure. “Force Majeure Event” means
fire, telecommunications failures, utility failures, power failures,
equipment failures, labour strife, riots, war, terrorist attack,
public health emergency, non-performance of vendors or
suppliers, acts of God or other cause over which the Affected
Party has no reasonable control. If either party (an “Affected
Party”) is delayed from performing any of its obligations (except
payment obligations) under this Agreement because of a Force
Majeure Event then performance is excused for the period of the
delay to the extent the delay is due to a Force Majeure Event
and the Affected Party will not be in default under this
Agreement. As soon as reasonably practicable after the start of
a Force Majeure Event, the Affected Party will give to the other
party written notice of the nature and expected duration of such
event. If the delay continues for more than 15 days, then the
party entitled to performance may give to the Affected Party
notice of immediate termination of this Agreement.
j. Entire Agreement. These terms and conditions
and the content of the Software Agreement to which this
Appendix A is attached constitute the entire agreement between
the parties with respect to the matters covered by such Software
Agreement and Appendices. In the event of a conflict between
this Agreement and any other Amilia Agreement or policy, this
Agreement shall prevail on the subject matter of this Agreement.
k. Severability. Whenever possible, each provision
or portion of any provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable
Law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision or portion of any provision in such jurisdiction, and this
Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
l. Survival. Any provision that is reasonably
necessary to accomplish or enforce the purpose of this
Agreement remain in effect in accordance with its terms uponAppendix B: Burleson Standard Terms
This exhibit shall be attached to the agreement or contract dated February15, 2021 between Amilia
(the “Vendor”) and the City of Burleson, Texas (the “City”) (the “Agreement”), and is fully made a
part of said Agreement. In the event of a conflict between any provision in this exhibit and any other
provision in the Agreement or any other exhibit to the Agreement, the terms provided in this exhibit shall
govern. The provisions of this Exhibit shall survive any termination, closing, or completion of the
Agreement.
1. No Waiver of Governmental Immunity. Nothing contained in this Agreement shall be construed as a
waiver of City’s governmental immunity, or of any damage caps or limitations imposed by law, or any
other legal protections granted to City by law, except to the extent expressly provided or necessarily implied
herein.
2. Applicable Law; Venue. This Agreement is subject to and governed by the laws of the State of Texas.
Any disputes arising from or relating to this Agreement shall be resolved in a court of competent jurisdiction
located in Johnson County, Texas, or the federal courts for the United States for the Northern District of
Texas. The parties hereto irrevocably waive any right to object to the jurisdiction of such courts in any
dispute arising from or relating to this Agreement.
3. Termination Due to Lack of Appropriations. All payment obligations under this Agreement are subject
to the availability of legislative appropriations at the federal, state, or local level, for this purpose. City
will use reasonable efforts to ensure appropriated funds are available. For the term of this Agreement which
extends into fiscal years subsequent to that in which it is approved, such continuation of the Agreement is
contingent on the appropriation and availability of funds for such purpose, as determined in good faith by
the City. If, in the judgment of the City, sufficient funds are not appropriated to maintain the services set
forth in this Agreement the function performed in this Agreement and for the payment of the fees hereunder,
City may unilaterally terminate this Agreement effective on the final day of the fiscal year through which
City has funding, provided that the City agrees to give written notice of termination to Vendor at least sixty
(60) written notice prior to the end of its then current fiscal year, stating its reasons for termination. In the
event of termination due to a lack of appropriations, City will pay Vendor for all fees and expenses related
to the services City has received, or Vendor has incurred or delivered, prior to the effective date of
termination. City agrees that should it terminate in accordance with this paragraph, it shall not obtain
services which are substantially equal to or similar to those for which this Agreement was entered into
during the same fiscal year to which the termination applies and this provision shall not be construed to
permit City to terminate the Agreement, in order to acquire similar licenses or services from a third party.
4. Relationship of the Parties. The parties agree that in performing their responsibilities under this
Agreement, they are in the position of independent contractors. This Agreement is not intended to create,
does not create, and shall not be construed to create a relationship of employer-employee. Vendor,
Vendor’s employees, and anyone else working at Vendor’s direction is an independent contractor and not
an employee or servant of the City. Nothing in this Agreement is intended to or shall be construed in any
manner as creating or establishing the relationship of employer-employee between Vendor, Vendor’s
employees, and anyone else working at Vendor’s direction. Vendor, Vendor’s employees, and anyone else
working at Vendor’s direction shall at all times remain an independent contractor with respect to the service
to be performed under this Agreement.
THE PARTIES ARE AWARE THERE ARE CONSTITUTIONAL
5. Limitations.
AND STATUTORY LIMITATIONS (LIMITATIONS) ON THE AUTHORITY
Page 9 of 10OF CITY TO ENTER INTO CERTAIN TERMS AND CONDITIONS THAT MAY
BE PART OF THIS AGREEMENT, INCLUDING TERMS AND CONDITIONS
RELATING TO DISCLAIMERS AND LIMITATIONS OF WARRANTIES;
DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES;
WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS,
REMEDIES, REQUIREMENTS AND PROCESSES; LIMITATIONS OF
PERIODS TO BRING LEGAL ACTION; LIABILITY FOR ACTS OR
OMISSIONS OF THIRD PARTIES; PAYMENT OF ATTORNEYS’ FEES;
INDEMNITIES; AND CONFIDENTIALITY. THE TERMS AND CONDITIONS
RELATED TO LIMITATIONS WILL NOT BE BINDING ON CITY EXCEPT TO
THE EXTENT AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE
STATE OF TEXAS.
5. Indemnity. City’s compliance to an anti-indemnity statute to which City is subject to by law shall not
violate the Agreement.
6. Records and Confidentiality. The City’s compliance with the Texas Public Information Act shall not
violate the Agreement.
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