Item D34
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 21.2006
Division: Budget & Finance
Bulk Item: Yes X
No
Department: Office of Management & Budget
Department Contact: Tina Boan
AGENDA ITEM WORDING:
Approval to execute: a Sublicense Agreement with Bank of America, for the use of the Works
Application. The Works application is used for access to the bank cardfpurchasing card subscriber's
application through the use of an internet browser.
ITEM BACKGROUND:
This is the Bank of America's payment manager andfor card manager, the Works Application is to be
used in conjunction with the purchasing cards issued by Bank of America.
PREVIOUS RELEVANT BOCC ACTION:
At the 3115f06 meeting, the Board Approved an application with Bank of America for purchasing card
services, at the 41l9f06 meeting the Board Approved the Purchasing Card Policies and Procedures.
CONTRACT/AGREEMENT CHANGES:
None.
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: $NfA
BUDGETED: Yes
No NfA
COST TO COUNTY: $ NfA
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
APPROVED BY: County
No AMOUNT PER MONTH
~ChaSing ~
Year
DIVISION DIRECTOR AI>PROV AL:
DOCUMENTATION:
Included
x
To Follow
Not Required
DISPOSITION:
AGENDA ITEM
WorksTM Service Sublicense Agreement
This Agreement for use of the WorkslM Application (the
"Agreement") is entered into between Bank of America, NA, a
national banking association ("Bank of America") and Company
Name ("Subscriber"), with its principal office at City, State
("Subscriber") The parties hereby agree as follows:
1. Definitions
1.1 "Affiliate" means any business entity now or hereafter
controlled by, controlling or under common control with a Party.
Control exists when an entity owns or controls, directly or
indirectly, 50% or more of the outstanding equity representing the
right to vote for the election of directors or other managing
authority of the controlled entity.
1.2 "Application" means Works' Payment Manager and/or Card
Manager, if applicable, to be implemented for Subscriber under
Section 14 herein, as that Application may be modified in
accordance with Section 4.
1.3 "Bank" means Bank of America, NA (USA).
1.4 "Card" means any commercial credit card (including
purchasing and corporate credit cards) issued by Bank and that is
used for purchases, including travel and entertainment and/or
cash advances, and is managed by the Application.
1.5 "Confidential Information" means information in any form that a
party knows or reasonably should know is the confidential, non-
public information of the other party or its licensors or Affiliates.
Without limiting the foregoing, Confidential Information shall
include (a) the Application and all related documentation, and (b)
all Personally Identifiable Information.
1.6 "Effective Date" means the date that this Agreement is signed
by both parties.
1.7 "Macros" means any macro, file or script provided by Works to
enable Subscriber to create files for importing into Subscriber's
accounting system in connection with Subscriber's authorized use
of the Application.
1.8 "Personally Identifiable Information" means any cardholder or
company specific data created or obtained in connection with the
use of Subscriber's Card accounts, including names, addresses,
transactional data, Card numbers, credit limits, and any other
personally identifying information.
1.9 "Term" means the time period beginning on the Effective Date
and ending upon the effective date of any termination of this
Agreement.
1.10 "Works" means Austin Acquisition, Inc. (operating under the
name Works), owner and licensor of the Application.
2. Sublicense. Subject to the terms of this Agreement and only
for the Term, Bank of America grants to Subscriber a limited, non~
exclusive, non~transferable, non~sublicenseable, revocable
sublicense to access and use the Application through the use of
an Internet browser, and to use any Macros provided by Works,
solely for the purpose of managing Subscriber's Card purchasing
processes and not for the benefit of any third party. All rights not
expressly granted hereunder are expressly reserved by Works.
3. Title. All title, ownership rights, and intellectual property
rights in and to the Application, Macros, and any enhancements,
improvements, derivative works or other modifications thereto,
including without limitation any changes suggested or requested
by Subscriber, are and shall remain at all times the sole property
of Works. No proprietary or intellectual property rights transfer to
Subscriber as a result of this Agreement.
4. Upqrades and Additional Offerinqs. The Application may
be modified during the Term, including by adding, modifying or
removing features at any time during the Term. Such changes
may apply to all Application users or to groups of Application
users.
5. Term and Termination.
73310901
5.1 This Agreement begins on the Effective Date and continues
until terminated by either party by giving sixty (60) days prior
written notice to the other party.
5.2 This Agreement will terminate automatically if Subscriber
terminates its relationship with Bank.
5.3 Works may suspend Subscriber's access to the Application at
any time without notice if Bank of America or Works reasonably
believes that Subscriber has violated any material term of this
Agreement.
6. Customer Support. Subscriber may obtain telephone
technical support relating to its use of the Application by calling the
number designated by Works, but specifically excluding support
relating to implementation and reconfiguration of the Application
("Technical Support"). Technical Support is available Monday
through Friday (excluding holidays) from 8 a.m. to 8 p.m. Eastern
Standard Time. Technical Support inquiries may be placed only
by either of two technical support contacts designated by
Subscriber.
7. Subscriber's Relationship to Bank. The Application may
only be used in conjunction with Cards issued by Bank. By using
the Application, Subscriber authorizes Bank of America, Bank and
Works to take such actions with respect to its Card accounts as
are necessary to deliver the services under this Agreement. The
credit relationship between Subscriber and Bank is subject to
agreement(s) between Subscriber and Bank.
8. Confidentiality.
8.1 Each party ("Recipient") agrees to keep confidential and not
disclose or use, except in performance of its obligations under
this Agreement, any Confidential Information of the other
party or its licensors or Affiliates ("Discloser"). To the extent
reasonably required to perform its obligations under this
Agreement, Recipient may use and disclose Confidential
Information of Discloser internally, including with employees,
consultants, contractors, and service providers who are
bound by confidentiality obligations at least as restrictive as
those stated herein. Bank of America represents that Works
is bound by confidentiality restrictions at least as restrictive as
those stated herein.
8.2 Notwithstanding Section 8.1 above, unless otherwise
authorized by Subscriber, Bank of America will not use or
disclose Personally Identifiable Information other than as
follows, provided that at all times Bank of America complies
with all applicable laws, regulations and its privacy and
security policy provided to Subscriber: (i) to process Card
transactions through the Application and to otherwise
maintain and support Subscribers' Card accounts; (ii) to
communicate with Subscriber regarding issues relating to the
Application or Card transactions; (iii) for Bank of America's or
Banks' internal business planning purposes; and (iv) to obtain
services from third parties relating to the Application, provided
that any such third party is bound by obligations prohibiting
use by or disclosure to any third party of such Personally
Identifiable Information.
8.3 Confidential Information does not include information that: (i)
is or becomes generally known to the public through no fault
or breach of this Agreement by Recipient; (ii) is rightfully
known by Recipient at the time of disclosure by Discloser
without an obligation of confidentiality; (iii) is independently
developed by Recipient without use of or access to
Discloser's Confidential Information; (iv) Recipient rightfully
obtains from a third party without restriction on use or
disclosure; or (v) is disclosed with the prior written approval of
Discloser.
8.4 Recipient may disclose the Confidential Information of
Discloser: (i) pursuant to the order or requirement of a court,
administrative agency, or other governmental or law
enforcement body having jurisdiction over Recipient, provided
that Recipient gives Discloser prompt notice of any such
order or requirement; or (ii) on a confidential basis to
Recipient's legal, financial or security advisors.
8.5 Subject to Section 8.2 above, the parties agree that any data
or information other than Personally Identifiable Information
that relates in any manner to Card usage via the Application
and that is acquired by Bank of America or Works in the
course of the provision of the Application or services under
this Agreement will belong equally to each party and to
Works, and nothing in this Agreement shall prohibit either
party or Works from disclosing or using such data or
information in its aggregate form.
9. No Warranty. BANK OF AMERICA AND WORKS
EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND,
WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE, ACCURACY, FUNCTIONALITY
OR NONINFRINGEMENT. NEITHER Bank of America NOR
WORKS MAKES ANY WARRANTY THAT (i) USE OR
OPERATION OF THE INTERNET SITE, THE APPLICATION OR
ANY MACROS WILL BE UNINTERRUPTED, ERROR~FREE OR
SECURE; OR (ii) LOSS OF DATA WILL NOT OCCUR; OR (iii)
MESSAGES OR REQUESTS WILL BE DELIVERED IN A TIMELY
FASHION; OR (iv) THE INFORMATION PROVIDED IN OR
THROUGH THE APPLICATION IS ACCURATE, COMPLETE OR
CURRENT. ANY MACROS PROVIDED BY WORKS ARE
PROVIDED "AS IS" AND SUBSCRIBER ASSUMES ANY AND
ALL RISKS ASSOCIATED WITH USE OF ANY MACROS.
10. Limitation of Liability.
10.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY, REGARDLESS OF THE FORM OF THE ACTION AND
WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT
LIMITATION NEGLIGENCE, STRICT LIABILITY OR ANY
OTHER LEGAL OR EQUITABLE CLAIM), FOR ANY PUNITIVE,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER
INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO
DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION
OR DELAY, LOSS OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, EVEN IF THE OTHER
PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. ADDITIONALLY, THE AGGREGATE LIABILITY OF
Bank of America TO SUBSCRIBER FOR ANY AND ALL LOSSES,
DAMAGES, COSTS OR EXPENSES ARISING UNDER THIS
AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION
AND WHETHER IN CONTRACT OR IN TORT (INCLUDING
WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR
ANY OTHER LEGAL OR EQUITABLE CLAIM), WILL BE LIMITED
TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE
TOTAL FEES ACTUALLY PAID BY SUBSCRIBER TO Bank of
America UNDER THIS AGREEMENT DURING THE TWELVE
(12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
WHICH GAVE RISE TO THE CLAIM. IN NO EVENT WILL
WORKS BE LIABLE TO SUBSCRIBER, REGARDLESS OF THE
FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN
TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE,
STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE
CLAIM), FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT
NOT LIMITED TO DIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, SPECIAL, OR OTHER DAMAGES, AND FURTHER
INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST
PROFITS, BUSINESS INTERRUPTION OR DELAY, LOSS OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES, EVEN IF WORKS HAS BEEN INFORMED OF
THE POSSIBILITY OF SUCH DAMAGES.
10.2 NOTWITHSTANDING SECTION 10.1 ABOVE, IN NO
EVENT WILL BANK OF AMERICA BE LIABLE TO SUBSCRIBER
FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT,
73310901
INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHERWISE,
ARISING OR RESULTING FROM: (A) MISTAKE, THEFT, FRAUD
OR OTHER MISCONDUCT BY SUBSCRIBER, ITS EMPLOYEES
OR AGENTS, OR BY ANY THIRD PARTY, IN CONNECTION
WITH THE APPLICATION; OR (B) ANY USE OF ANY MACROS.
10.3 The parties expressly acknowledge and agree that Bank of
America and Subscriber have entered into this Agreement in
reliance upon the limitations of liability specified herein.
11. Responsibility for Use of Subscriber's Account.
11.1 Subscriber is solely responsible for all use of its Application
account. Subscriber is responsible for maintaining the
confidentiality of its passwords, account numbers and other
information, and for appropriate segregation of duties for
Application users. Subscriber agrees to keep its passwords and
account numbers confidential, and to notify Bank of America and
Works immediately if it learns that a password or account number
has been compromised.
11.2 Subscriber will not, and will not permit any employee, agent
or other third party to undertake any action intended to interfere
with effective operation of the Application or violate any applicable
law or regulation in connection with this Agreement. Subscriber
will indemnify and hold harmless Bank of America, Bank and
Works and their respective officers, directors, and employees from
any claim or damage sustained as the result of any breach by
Subscriber of this Section 11.2.
12. AssiQnment. Subscriber may not assign its rights or
obligations under this Agreement without the prior written consent
of Bank of America, which will not be unreasonably withheld. Any
assignee of Subscriber must agree to be bound by the terms and
conditions of this Agreement.
13. Miscellaneous. This Agreement is the complete agreement
of the parties regarding the subject matter hereof and supercedes
any prior oral or written agreements or representations. The
failure by either party to enforce any provision of this Agreement
will not be deemed a waiver of future enforcement of that or any
other provision. The non~performance of a party will be excused
for the period of any delay caused by any force majeure event,
including act of God, war, terrorism, or any other cause beyond
the party's reasonable control. Except as otherwise provided
herein, this Agreement may be amended only by a written
amendment signed by authorized representatives of both parties.
If any provision of this Agreement is held to be unenforceable,
such provision will be reformed only to the extent necessary to
make it enforceable. This Agreement will be governed by North
Carolina law, excluding its conflict of laws principles. The exclusive
forum and venue for any dispute arising under or in connection
with this Agreement will be in any court of competent jurisdiction
located in New York, New York, and the parties hereby consent
and agree to submit to the general jurisdiction of any court in that
venue. Signatures transmitted via facsimile shall have the same
force and effect as the original. Each party to this Agreement is
responsible for compliance with the Agreement by its employees
and authorized agents. Works is a third party beneficiary of this
Agreement.
14. Implementation, Fees, Limited Warranty and Limitation
of Liability for Implementation.
14.1 Subscriber will be implemented as a user of the Application in
accordance with Works' customary implementation procedures
("Implementation Services").
14.2 [OPTIONAL] Subscriber will pay Bank of America a non~
refundable fee ("Implementation Fee") of thousand dollars _
for the Implementation Services described herein within _-
thirty days of invoicing by Bank of America. Receipt by Bank of
America of a purchase order for or payment of the Implementation
Fee will entitle Subscriber to hours of remote and
on~site Implementation Services.
2
14.3 Notwithstanding the warranty disclaimer contained in Section 9 herein,
Bank of America warranls that the Implementation Services will be
performed in a good and workmanlike manner. SUBSCRIBER'S SOLE
REMEDY FOR BREACH OF THE FOREGOING WARRANTY WILL BE THE
REPROGRAMMING OF SUBSCRIBER'S APPUCATION ACCOUNT TO
CORRECT ANY DEFECT RESULllNG FROM SUCH BREACH. Bank of
America WILL HAVE NO UABIUTY FOR IMPLEMENTATION DEFECTS
RESUL llNG FROM CONDUCT OR DEFECllVE INFORMAllON
PRO~DEDBYSUBSC~BER
14.4 Subscriber will confirm that all Subscriber approval processes
and Subscriber information (including purchasing rules, individual
and group spending limits, approval routing requirements, and
other speCifications regarding Subscriber's account) are accurately
and adequately included and implemented in the Application.
14.5 Subscriber authorizes Bank of America to be set up as a
financial administrator in the Application by Works.
733109.01
^l
.J
In witness whereof, each party has caused its duly authorized representative to execute this Agreement.
Licensor: Bank of America, N.A. Subscriber:
By:
Name:
Title:
Date:
MONROE COUNTY ATTORNEY
73310901
By:
Name:
Title:
Date:
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