HomeMy WebLinkAboutR-2025-040 Resolution authorizing execution of Software as a Service (Saas) agreement for sole-source purchase of Badge Application Processing Software from AirBadge LLC RESOLUTION NO. R-2025-040
A RESOLUTION authorizing the execution of a Software as a Service (SaaS) agreement for
the sole-source purchase of a Badge Application Processing Software from
AirBadge, LLC.
WHEREAS, Article VI, Section 6 of the City of Yakima Charter and Yakima Municipal
Code Chapter 1.80 generally require that the purchase of equipment, materials, or services
other than public work and costing less than $100,000 be made by obtaining three quotes,
subject to certain exceptions; and
WHEREAS, the law recognizes a "sole source purchase" exception to quotation
requirements when, due to the uniqueness of the product to be purchased and the fact that there
is one source that meets our requirements, it would be futile to utilize the three-quote process for
such product; and
WHEREAS, the City of Yakima's Airport (YKM) requires a system for Badge Application
Processing, and AirBadge fully integrates with TSC, (TSA's official background check software),
S2 (the current badging software used by the City of Yakima), and the existing fingerprinting
infrastructure; and
WHEREAS, AirBadge provides a comprehensive, end-to-end solution for the badge
application process meeting TSA and auditing requirements; and
WHEREAS, the vendor's quotation meets the City of Yakima's budget and requirements
for these services; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute a Service Agreement with AirBadge,
LLC, attached hereto and incorporated by reference.
The total value of this five-year agreement is $99,750, with five (5) annual payments of$19,950.
ADOPTED BY THE CITY COUNCIL this 18th day of February, 2025.
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SERVICES AGREEMENT
This Services Agreement(this"Agreement")concerns badge management software as"software
as a service" developed and offered by AirBadge, LLC, a California limited liability company
("AirBadge") with a place of business at 2777 Yulupa Ave #229, Santa Rosa California 95405,
("Subscription Services"). This Agreement is by and between AirBadge and ("Customer").
AirBadge and Customer are sometimes referred to jointly as the "parties" or singularly as a
"party."This Agreement is entered into and effective as of the last date ascribed to the signature
of a party on the signature page below("Effective Date").
RECITALS
WHEREAS, Customer, in compliance with TSA regulations, issues badges to persons permitted
access to controlled areas of its premises; manages all data pertaining to badge issuance; and
periodically audits badge recipient's use, possession, and control of the badges; and
WHEREAS, Customer desires to obtain access to the Subscription Services for the purposes of
applying information technology to manage its badge data.
NOW,THEREFORE, in consideration of the mutual covenants and promises set forth herein,and
other valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the
parties agree as follows:
1. SERVICES
1.1 Purpose. This Agreement sets forth the terms and conditions under which AirBadge
agrees to provide (i) certain hosted Subscription Services for certain software applications (each
such application consisting of modules,together with any applicable documentation thereto,and
programming and user interfaces therefor,a"Platform")to Authorized Users, as further set forth
on each order form ("Order Form") and (ii) if applicable, all other implementation services,
customization, integration, data encryption, data import and export, monitoring, technical
support, maintenance, training, backup and recovery (to the extent encrypted data is
recoverable), and change management ("Professional Services" together with Subscription
Services, the "Services") relating to Customer's access to, and use of, such Subscription Services
and each Platform, as further set forth in a statement of work made part of the Order Form
(Order Forms and statements of Professional Services are sometimes referred to jointly as
"Statement of Services").
1.2 The Services: Access and Use License. Subject to the terms and conditions of the
Agreement, during the Term, AirBadge shall use commercially reasonable efforts to provide (i)
Customer and Authorized Users access to each Platform, and (ii) Customer the Professional
Services.Subject to the terms and conditions of the Agreement,during the Service Term(defined
in Section 7, below), AirBadge grants Customer and Authorized Users a non-exclusive, non-
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sublicensable, non-transferable, license to access and use each Platform, solely for internal
business purposes as set forth herein.
1.3 Subscription Services. Each applicable Order Form shall specify and further
describe the Subscription Services to be provided in accordance with the representations and
warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees,
Service Term and other applicable terms and conditions.
1.4 Changes to Platform. AirBadge may, make any changes to any Platform that it
deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of AirBadge's
products or services to its customers, (b)the competitive strength of, or market for, AirBadge's
products or services, (c) such Platform's cost efficiency or performance, or (ii) to comply with
applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USER
2.1 Administrative Users. During the configuration and set-up process for each
Platform, Customer will identify an administrative username and password for Customer's
AirBadge account. AirBadge reserves the right to cancel or refuse registration of usernames and
passwords it deems inappropriate.
2.2 Authorized Users. Customer may allow such number of Customer's administrative
officers, airport security coordinators, (as defined by Title 49, Code of Federal Regulations,
section 1542.3), employees, and independent contractors to use the applicable Platform on
behalf of Customer as "Customer Users." Additionally, Customer may allow such number of
designees of its vendors and their personnel ("Vendors Users"), subject to AirBadge's then-
current Terms of Use, to access each Platform in connection with such vendor's activity with
Customer through such Platform.As used herein,the term"vendors" includes, but is not limited
to, such authorized users as airline personnel, airport service providers, and hangar tenants.
("Customer Users together with Vendor Users are "Authorized Users".) An account designated
for an Authorized User cannot be shared or used by more than one Authorized User. Customer
shall not exceed the number of permitted Authorized User accounts indicated on the Order Form
unless Customer purchases additional blocks of Authorized User licenses as stated on the Order
Form.
2.3 Authorized User Conditions to Use. As a condition to access and use of a Platform, (i)
each Authorized User shall agree to abide by the terms of AirBadge's end-user terms of use which
it may adopt from time to time, (ii) Customer Users shall agree to abide by the terms of this
Agreement, or a subset hereof, and (iii) Vendor Users shall agree to abide by the terms of the
then-current AirBadge Vendor Terms of Service applicable to such Platform, and, in each case,
Customer shall ensure such compliance. Customer shall immediately notify AirBadge of any
violation of the terms of any of the foregoing by any Authorized User upon becoming aware of
such violation, and shall be liable for any breach of the foregoing agreements by any Authorized
User.
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2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account
that Customer has access to, whether or not Customer has authorized the particular use or user,
and regardless of Customer's knowledge of such use, and (ii) securing its AirBadge account,
passwords (including but not limited to administrative and user passwords) and files. Customer
acknowledges that all data is encrypted and can only be decrypted with Customer's decryption
key,which is linked their password. In the event that Customer loses or forgets its password key,
Customer's data cannot be decrypted.AirBadge is not responsible for any losses,damages,costs,
expenses, or claims that result in stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage,any third party
to, directly or indirectly, (i) reverse engineer, decompile, disassemble, or otherwise attempt to
discover or derive the source code, object code, or underlying structure, ideas, know-how, or
algorithms relevant to a Platform or any software, documentation or data related to a Platform
("Software"); (ii) modify, translate, or create derivative works based on a Platform or any
Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other
computer service to a third party; (iv) modify, remove, or obstruct any proprietary notices or
labels; or (v) use any Software or Platform in any manner to assist or take part in the
development, marketing, or sale of a product potentially competitive with such Software or
Platform. For the avoidance of doubt,Software and the Services, including all user-visible aspects
of the Services, are the Confidential Information of AirBadge, and Customer will comply with
Section 4 with respect thereto.
3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized
Users use, each Platform, Software, and the Services in full compliance with this Agreement,
AirBadge's end-user terms of use, and all applicable laws and regulations. Customer represents
and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to
a Platform provided by AirBadge, (ii) understands the requirements thereof, and (iii) agrees to
comply therewith. Customer, specifically agrees that it shall not store, or attempt to store, in
areas of the platform not expressly intended to store badgeholder's social security numbers,
driver's license numbers or other government issued identification numbers, home addresses,or
dates of birth. AirBadge may suspend Customer's account and access to each Platform and
performance of the Services at any time and without notice if AirBadge believes that Customer
is in violation of this Agreement. Although AirBadge has no obligation to monitor Customer's use
of a Platform, AirBadge may do so and may prohibit any use it believes may be (or alleged to be)
in violation of the foregoing.
3.3 Cooperation. Customer shall provide all cooperation and assistance as AirBadge may
reasonably request to enable AirBadge to exercise its rights and perform its obligations under,
and in connection with, this Agreement, including providing AirBadge with such access to
Customer's premises and its information technology infrastructure as is necessary for AirBadge
to perform the Services in accordance with this Agreement.
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3.4 Training and Education. Customer shall use commercially reasonable efforts to
cause Customer Users to be, at all times, educated and trained in the proper use and operation
of each Platform such Customer Users utilize, and to ensure that each Platform is used in
accordance with applicable manuals, instructions, specifications, and documentation provided
by AirBadge from time to time.
3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both
the functionality and security of—any equipment and ancillary services needed to connect to,
access, or otherwise use each Platform, including modems, hardware, servers, software,
operation systems, networking,web servers,and the like.
3.6 Restrictions on Export. Customer may not remove or export from the United states
or allow the export or re-export of the Software or anything related to a Platform, Software, or
Services, or any direct product thereof in violation of any restrictions, laws or regulations of any
United States or foreign agency or authority.
3.7 DFARS.Software, each Platform, and the Services, and any documentation provided by
AirBadge are deemed to be "commercial computer software" and "commercial computer
software documentation: pursuant to Defense Federal Acquisition Regulation Supplement,
codified under Chapter 2 of Title 48,United States Code of Federal Regulations,Section 227.7202,
and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal
Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display,
or disclosure of the Software or documentation by the United States Government is governed
solely by this Agreement and is prohibited except to the extent expressly permitted by this
Agreement.
4. CONFIDENTIALITY
4.1 Confidential Information. Each party (the "Receiving Party") understands that the
other party (the "Disclosing Party") has been, and may be, exposed to or acquire business,
technical,or financial information relating to the Disclosing Party's business(hereinafter referred
to as "Confidential Information"). Confidential Information of AirBadge includes non-public
information regarding features, functionality, and performance of each Platform and Software.
Confidential Information of Customer includes non-public data provided by Customer to
AirBadge to enable the provision of access to,and use of,the Services as well as all content,data,
and information recorded and stored by each Platform for Customer ("Customer Data"). The
terms and conditions of this Agreement, including all pricing and related metrics,are AirBadge's
Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential
Information shall not include any information that the Receiving Party can document (i) is or
becomes generally available to the public, (ii)was in its possession or known by it prior to receipt
from the Disclosing Party, (iii)was rightfully disclosed to it without restriction by a third party, or
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(iv) was independently developed without use of any Confidential Information of the Disclosing
Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the
Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the
confidentiality,and prevent the unauthorized use or disclosure, of such Confidential Information
it uses to protect its own proprietary and confidential information of like nature, which shall not
be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict
confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information
to any third party, (iii) not use such Confidential Information for any purposes whatsoever other
than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may
disclose Confidential Information of the Disclosing Party to the extent necessary to comply with
a court order or applicable law; provided, however that the Receiving Party delivers reasonable
advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure
confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party
acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the
Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by
recovery of monetary damages. Accordingly, in the event of any violation, or threatened
violation, by the Receiving Party of its obligations under this Section,the Disclosing Party shall be
entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other
remedy that may be available at law or in equity,without the necessity of posting bond or proving
actual damages.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all right, title, and interest in and to the Customer
Data. AirBadge shall own and retain all right, title, and interest in and to (i) each Platform,
Software, and the Services, and all improvements, enhancements, or modifications thereto, (ii)
any software, applications, inventions, or other technology developed in connection with the
Services, and (iii) all intellectual property and proprietary rights in and related to any of the
foregoing (collectively, Services IP").To the extent Customer acquires any right,title, or interest
in any Services IP, Customer hereby assigns all of its right,title, and interest in such Services IP to
AirBadge.
5.2 Customer Data and Vendor Information License. Customer hereby grants to AirBadge
a non-exclusive, transferable, sublicensable, worldwide, and royalty-free license to use and
otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as
necessary or useful to monitor and improve a Platform, Software, and the Services, both during
and after the Subscription Term, and (ii) Vendor Information for any lawful purpose. "Vendor
Information" means any Vendor list or Vendor contact information that is provided to AirBadge
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by Customer or uploaded to any Platform by or on behalf of Customer. For the avoidance of
doubt, AirBadge may use, reproduce, and disclose Platform-, Software-, and Services-related
information, data, and material that is anonymized, de-identified, or otherwise rendered not
reasonably associated or linked to Customer or any other identifiable individual person or entity
for product improvement and other lawful purposes,all of which information, data,and material
will be owned by AirBadge. It is Customer's sole responsibility to back-up Customer Data during
the Subscription Term,and Customer acknowledges that it will not have access to Customer Data
through AirBadge or any Platform following the expiration or termination of this Agreement.
5.3 No Other Rights. No rights or licenses are granted except as expressly set forth
herein.
6. FEES&PAYMENT
6.1 Fees. Customer will pay AirBadge the fees described in the Order Form or Statement of
Services, as the case may be, in accordance with the terms set forth therein ("Fees"), including,
any fees or costs AirBadge incurred through Customer's use of a Platform exceeding a services
capacity parameter specified on an Order Form. The Order Form shall state the number of
Authorized User licenses ("Base Licenses") and the annual Fee for the Base Licenses. The Order
Form shall also state the date Customer may begin to use the Base Licenses("Subscription Start
Date"). At each anniversary date of the Subscription Start Date the Fees shall increase by the
amount stated on the Order Form.If the Order Form states"CPI",then the increase shall be equal
to the consumer price index as published by the U.S. Bureau of Labor Statistics for the region in
which Customer is located on a non-seasonally adjusted year-over-year basis. In no event shall
the increase be a negative number.The Order Form shall also state the Fees for specified blocks
of additional licenses. In the event Customer exceeds the number of Base Licenses as stated on
the Order Form, Customer shall pay Airbadge for each additional block of licenses as Customer's
use requires in the amount stated on the Order Form.
6.2 Renewal Fees. Upon the commencement of the Renewal Term, Customer shall
pay the Renewal Term fee, which shall be the amount of the last annual Fee plus the amount
stated on the Order Form. If the Order Form states that the Renewal Term Fee shall be increased
by "CPI", then the increase shall be equal to the consumer price index as published by the U.S.
Bureau of Labor Statistics for the region in which Customer is located on a non-seasonally
adjusted year-over-year basis. In no event shall the Renewal Term Fee be lower than the last
annual Fee.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall
reimburse AirBadge for reasonable out-of-pocket expenses incurred by AirBadge in connection
with performing the Professional Services.
6.4 Payment. Payment is due on the Subscription Start Date as stated on the Statement
of Services or Order Form, as the case may be. As a convenience to Customer, AirBadge will
invoice Customer via email. Payments are due when the invoice is generated. Payments due,but
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not received by AirBadge within thirty (30) days after the invoice was sent to Customer are
subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, plus all expenses AirBadge incurs in collection efforts. In
addition to any other remedies available,AirBadge may suspend Services in the event of payment
delinquency.
6.5 Payment Disputes. If Customer believes that AirBadge has billed Customer incorrectly,
Customer must contact AirBadge no later than thirty (30) days after the closing date on the first
billing statement in which the believed error or problem appeared in order to receive an
adjustment or credit. Inquiries should be directed to AirBadge's customer support department
or the applicable Account Manager.
6.6 Taxes. Customer shall pay, and shall be liable for, all taxes relating to AirBadge's
provision of the Services hereunder. AirBadge shall pay, and shall be responsible for,taxes based
on its net income or capital.
6.7 No Deductions or Setoffs. All amounts payable to AirBadge hereunder shall be paid by
Customer to AirBadge in full without any setoff, recoupment, counterclaim, deduction, debit, or
withholding for any reason except as may be required by applicable law.
6.8 Subpoena Expenses. If AirBadge has to provide information in response to a subpoena
related to Customer's account, then AirBadge may charge Customer for AirBadge's costs. Such
charges may include fees for attorney and employee time spent retrieving records, preparing
documents, and participating in depositions, or other legal process, as well as other costs
incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided
below.The term of each Statement of Services or Order Form, as the case may be,shall begin on
the applicable Subscription Start Date and continue until the subscription end date as stated on
the Order Form ("Service Term"). Unless written notice of non-renewal is received by AirBadge
at least sixty (60) days, but not less than thirty (30) days, prior to the end of the Service Term,
each Order Form shall renew for one additional one-year period ("Renewal Term").
7.2 Termination. Each Party may terminate this Agreement upon thirty (30) days'
written notice to the other Party if(a) no Statement of Services or Order Form, as the case may
be, is in effect; (b) the other Party commits any material breach of this Agreement and fails to
remedy such breach (if capable of remedy)within 30 days after written notice of such breach; or
(c) subject to applicable law, upon the other Party's liquidation, commencement of dissolution
proceedings, insolvency or assignment of substantially all its assets for the benefit of creditors,
or if the other Party becomes the subject of bankruptcy or similar proceeding that is not
dismissed within 60 days.
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7.3 Effect of Termination.Upon termination of the Agreement, each outstanding Statement
of Services, if any,shall terminate and Customer shall immediately cease all use of,and all access
to, the Subscription services and AirBadge shall immediately cease providing the Professional
Services. If(i) AirBadge terminates this Agreement pursuant to the second sentence of Section
7.2, or(ii) Customer terminates this agreement pursuant to the last sentence of Section 7.2, all
Fees that would have become payable had each outstanding Statement of Service or Order Form,
as the case may be, remained in effect until expiration of its current term will become
immediately due and payable.
7.4 Suspension. AirBadge may suspend Customer's account and access to the Subscription
Services immediately on notice if(a)AirBadge reasonably determines (i)Customer violated or is
violating the Acceptable Use Policy; or(ii)AirBadge's provision of any of the AirBadge Services is
prohibited by applicable law or has become impractical or unfeasible for any legal or regulatory
reason,or(b)Customer fails to pay an undisputed invoice within 15 business days after AirBadge
has provided Customer with a written reminder notice (of which email is sufficient) of late
payment.Any suspension by AirBadge of the Subscription Services as a result of subsection (a)(i)
or subsection (b) of this paragraph will not relieve Customer of its payment obligations
hereunder. AirBadge will promptly lift the suspension upon Customer's payment or remedy of
the triggering violation, as applicable.
7.5 Survival. Sections 3.1, 4-6, 7.2, 7.5, and 9 through 17 shall survive any termination
or expiration of this Agreement. All other rights and obligations shall be of no further force or
effect.
8. WARRANTY AND DISCLAIMER
8.1 Warranties. AirBadge represents and warrants that it will perform the
Professional Services in a professional and workmanlike manner. Each party represents and
warrants that it has the legal power to enter into this Agreement. Additionally, Customer
warrants that (i) Customer owns or has a license to use and has obtained all consents and
approvals necessary for the provision and use of all of the Customer Data that is placed on,
transmitted via,or recorded by a Platform and the Services;(ii)the provision and use of Customer
Data as contemplated by this Agreement and each Platform and the Services does not and shall
not violate any Customer's privacy policy, terms-of-use or other agreement to which Customer
is a party or any law or regulation to which Customer is subject to;and(iii)no Customer Data will
include financial account numbers, credit card or debit card numbers, credit report information
or other personal financial information, social security numbers, driver's license numbers or
other government issued identification numbers, home addresses, dates of birth, health or
medical information, or other information that is subject to international,federal, state,or local
laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but
not limited to, the Health Insurance Portability and Accountability Act, the Health Information
Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children's
Online Privacy Protection Act,and the Gramm-Leach-Bliley Act.
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8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE,
AIRBADGE DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE, OR SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES AIRBADGE MAKE ANY WARRANTY AS TO
THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER,AIRBADGE MAKES
NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARY
TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING
HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF SUCH CUSTOMER ARISING FROM
OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN AIRBADGE AND SUCH SERVICE PROVIDER,
BE SOLELY AGANST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE, AND SERVICES ARE
PROVIDED "AS IS," AND AIRBADGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMTED TO, IMPLIED WARRANTIES OF NON-INFRIGNEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
9. INDEMNITY
9.1 Indemnification by AirBadge. AirBadge will defend Customer against any claim,
suit, demand, or action made or brought against Customer by a third party alleging that the
Services, or Customer's use or access thereof in accordance with this Agreement, infringes any
intellectual property rights of such third party, and will indemnify and hold Customer harmless
from any damages, losses, liabilities,costs, and fees(including reasonable attorney's fees)finally
awarded against Customer in connection with or in settlement of any such claim, suit, demand,
or action.The foregoing obligations do not apply with respect to portions or components of any
Platform or Service (i) not supplied by AirBadge, (ii) made in whole or in part in accordance with
Customer specifications, (iii) that are modified after delivery, or granting of access, by AirBadge,
(iv) combined with other products, processes, or materials where the alleged infringement
relates to such combination, (v) where Customer continues allegedly infringing activity after
being notified thereof or after being informed of modifications that would have avoided the
alleged infringement, or (vi) where Customer's use of the Services is not strictly in accordance
with this Agreement. If,due to a claim of infringement,a Platform is held by a court of competent
jurisdiction to be, or is believed by AirBadge to be infringing, AirBadge may, at its option and
expense(a) replace or modify such Platform to be non-infringing provided that such modification
or replacement contains substantially similar features and functionality, (b) obtain for Customer
a license to continue using such Platform, or (c) if neither of the foregoing is commercially
practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a
full refund of any prepaid, unused fees for such Platform.This Section states Customer's sole and
exclusive remedies for claims of infringement.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL (I) EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY
EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS
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HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE
EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP
AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY
LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER,
SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT,
TORT OR UNDER ANY OTHER THEORY OF LIABILITY,AND WHETHER OR NOT THE PARTY HAS BEEN
ADVISED OF THE POSSIBIITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND
DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of California, without giving
effect to its rules relating to conflict of laws. Neither any adoption of the Lniform Computer
Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies
to this Agreement or to the rights or duties of the parties under this Agreement.
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12. SECURITY
AirBadge may host and/or maintain a Platform using a third-party technology service provider
and Customer acknowledges that AirBadge cannot offer any additional or modified procedures
other than those put in place by such technology provider with respect to such technology
service.
13. PUBLICITY
Customer agrees that AirBadge may identify Customer as a customer and use Customer's logo
and trademark in AirBadge's promotional materials. Customer may request that AirBadge stop
doing so by submitting an email to dylan@airbadge.us at any time. Customer acknowledges that
it may take AirBadge up to 30 days to process such request. Notwithstanding anything herein to
the contrary, Customer acknowledges that AirBadge may disclose the existence and terms and
conditions of this Agreement to its advisors, actual and potential sources of financing, and to
third parties for purposes of due diligence.
14. NOTICES
All notices, consents, and other communications between the parties under or regarding this
Agreement must be in writing(which includes email)and be addressed according to information
provided on an Order Form.
All notices, consents, and other communications between the parties under a Statement of
Services will be sent to the recipient's address specified thereon. All communications will be
deemed to have been received on the date actually received. Either party may change its address
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for notices by giving written notice of the new address to the other party in accordance with this
Section.
15. FORCE MAJEURE
AirBadge is not responsible nor liable for any delays or failures in performance from any cause
beyond its control, including, but not limited to, acts of God, changes to law or regulations,
embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots,fires,
earthquakes, floods, power blackouts, strikes, weather conditions, acts of hackers, internet
service providers, or any other third party, or acts or omissions of Customer and any Authorized
User.
16. ASSIGNMENT
Neither party may assign this Agreement to any third party without the prior written consent of
the other; provided that no consent is required in connection with an assignment to an affiliate,
or in connection with any merger, reorganization, consolidation, sale of assets, or similar
transaction. AirBadge may sublicense any or all of its obligations hereunder. For the avoidance
of doubt, a third party technology provider that provides features or functionality in connection
with a Platform shall not be deemed a sublicensee under this Agreement.
17. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full
force and effect and enforceable. This Agreement, together with Statement of Services entered
into hereunder and all exhibits, annexes, and addenda hereto and thereto is the complete and
exclusive statement of the mutual understanding of the parties and supersedes and cancels all
previous written and oral agreements,communications,and other understandings relating to the
subject matter of this Agreement. All modifications must be in a writing signed by both parties,
except as otherwise provided herein. Any waiver by Airbadge of a breach of any terms,
conditions, or covenants herein shall not be deemed to be a further, continuing, or permanent
waiver of any further breaches of this Agreement. No agency, partnership, joint venture, or
employment is created as a result of this Agreement, and neither party has authority of any kind
to bind the other party in any respect whatsoever. In the event of a conflict between this
agreement and any Statement of Services, such Statement of Services shall prevail unless
otherwise expressly indicated in this Agreement or such Statement of Services. The heading
references herein are for convenience purposes only and shall not be deemed to limit or affect
any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or
use thereof: (i)the words"hereof," "hereby," "herein," "hereto," and "hereunder" and words of
similar import shall refer to this Agreement as a whole and not to any particular Section or
paragraph of this Agreement; (ii) the words "include," "includes," or "including" are deemed to
be followed by the words "without limitation;" (iii) references to a "Section" or "Exhibit" are
11
references to a section of,or exhibit to this Agreement;and(iv)derivative forms of defined terms
will have correlative meanings.
Dated: 21 a11O) by:
For: �' 2s o (242, i rr .
�or5—o3
CITY CONTRACT NO'n av) � Vrl&. ��
RESOLUTION NO 1C Print Name:
Dated: January 22, 2025 by: Z c5htaliCA,hte
For AirBadge, LLC.
Print Name: Dylan Smallcomb
12
AIRBADGE,LLC
2777 YULUPA AVE SUITE 229
SANTA ROSA CA,95405
EMAIL:DYLAN@AIRBADGE.US
VISIT:AIRBADGE.US
AIR BADGE
ORDER FORM
For
MCALLISTER FIELD
McAllister Field,("Customer"), by this Order Form, requests from AirBadge LLC, a California
limited liability company("AirBadge"),the subscription services on the terms herein described.
This Order Form is effective as of("Subscription Start Date").This Order Form is in conjunction
with and subject to the terms, covenants,and conditions specified in the Services Agreement
executed by and between Customer and AirBadge on the signature date and which, by this
reference, is incorporated herein and made a part hereof. In the event terms specified in the
Services Agreement conflict with this Order Form,this Order Form shall prevail.
ITEMS ORDERED
1 .0 Implementation Services
1.1 Customization
AirBadge to help Customer configure Platform settings for Customer's specific needs.
This does not include adding, modifying, or removing elements or modules to the
platform.
1.2 Integrations
• AAAE's Transportation Security Clearinghouse(TSC)
• AirBadge's fingerprinting software
• LenelS2 access control system
Order Form for Customer(YKM).An amendment to the AirBadge Service Agreement
Please note that LenelS2 may charge an integration fee and that will need to be negotiated by
the airport. The fingerprint reader is$900 plus shipping and handling(one-time).
1.3 Data Import
AirBadge will facilitate a test import and live import of Customer-supplied data.
Customer acknowledges that successful testing is largely dependent upon coordination
and cooperation with AirBadge during this phase.
1.4 Technical Support
AirBadge support for Customer staff to occur via email,telephone, or similar as
conditions allow.AirBadge will endeavor to respond within 1 business day
1.5 Change Management
Customer is responsible for change management.AirBadge will provide consultation
for formulating Customer's change management plan.
2.0 Authorized Users:
Base Licenses 600
3.0 Service Fees and Terms
Subscription Start Date February 19th,2025
Subscription End Date February 18th,2030
Annual Subscription Fee $19,950
Payment Interval Biannual
Payment Terms Net 30
Fee Payment Schedule
Year#1 $19,950
Year#2 $19,950
Year#3 $19,950
Year#4 $19,950
Year#5 $19,950
Order Form for Customer(YKM).An amendment to the AirBadge Service Agreement
4.0 Renewal Fees and Terms
Auto-Renewal Yes
Renewal Term 1 year
5.0 Execution:
This Order Form and its described Subscription Services,all Fees,and Terms herein are
accepted and agreed to.The signer certifies that he or she is duly authorized by Customer to
enter into legal agreements on behalf of Customer.
AirEtadge, LLC
v0eA I I I 111.
Smalicoote
Authorized Signature guthorized Signature
U j Cjrl A f? , K Dylan Smallcomb
Printed Name Printed Name
( ) CL-� Vice President
Title Title
January 22,2025
Date Date
CITY CONTRACT NO CA,)--
RESOLUTION NO k-k15 Oy 1)
Order Form for Customer(YKM).An amendment to the AirBadge Service Agreement