HomeMy WebLinkAboutFire Data Solutions - Amendment to SAAS Services AgreementFIRE OATA SOLUTIONS
Software as a Service (SaaS) Order Form
Address: 401 North Front Street, Yakima WA 98901
Contact. Tim Kerns
see
ACCREDITED
BUSINESS
Phone: (509)575-6060; Alternate (509)575-6011
E-Mail: Tim.kems@yekimawa.gov
Services: TrackMyPPE'm software as a service (SaaS) (the "Service(s)"),
Service Capacity: The number of users is unrestricted. Access is limited to employees of the contracted customer,
On -boarding Services: Company will use commercially reasonable efforts to provide Customer the services described in
the Statement of Work ("SOW") attached as Exhibit A hereto ("On -boarding Services"), and Customer shall pay Company
the On -boarding Fee in accordance with the terms herein.
On -boarding Fee (one-time):5 Q.po payable upon completion of the on -boarding process. This fee will be credited
towards a contract if the customer chooses to retain services beyond the free 90 day Trial Period.
Trial Period: Services use during the Trial Period will be a fully implemented production version for evaluation use.
Notwithstanding anything else, in connection with such trial/evaluation use (1) no SaaS fees will apply, (2) the Services
are provided "AS IS" and no warranty obligations of Company will apply, and (3) Customer may terminate this Agreement
and all of its rights hereunder by providing Company written notice thereof no less than 10 days prior to the end of the
Trial Period; otherwise, this Agreement shall continue in effect for the Initial Service Term (subject to earlier termination
as provided in the Agreement).
Trial Period: Ninety (90) days
Trial Use Fee: No charge
Beta Test: Yakima Fire Department has agreed to collaborate.on a Beta Test of the 7-roc/MAW:VP" software. The Beta
Test period will span 15 months, to include both the 90.day Trial Period and the one-year Initial Service Term.
Per Yakima Fire Department, the Initial Service Ierm will start on February 1, 2020. If on boarding pushes the 90-day
Trial Period beyond that date, the Initial Service Term fee will be credited to the next full month affected.
Services Fees:
Initial Service Term: $1862 (includes 20% discount)
Second year contract guarantee: 15% discount, with
inflatlan increase limit at 5%
Third year contract guarantee: 10% discount, with inflation
Increase limit at 5%
Service fees are calculated on the number of active
jacket/trouser sets in the database at time of invoice.
Service fees are payable upon start of Initial Service Term,
subject to the terms of Section 4 herein.
Initial Service Term: One Year
SAAS SERVICES AGREEMENT
This SaaS Services Agreement ("Agreement") is entered into on this 3/4 r: day of 019 (the "Effective Date") between
Fire Data Solutions, LLC ("Company"), and the Customer listed above ("Customer"). This Areerent included iiof,porates the
above Order Form as liPSwth AtacttedTer and C nditions and contains anon other things, warfattly disclaimers, (lability'
re hens and use limitation There shall be no force or effect to any different terms of any related purchase order or similar form
even if signed by the parties after the date hereof,
Name: Jeff Bareness
Title: Man n Member
Yakima Fire
By:
Naas.
Title:
CITY CONTRACT NO:
RESOLUTION NO: , ___
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will
use commercially reasonable efforts to provide Customer the
Services in accordance with the Service Level Terms attached
hereto as Exhibit R.
1.2 Subject to the terms hereof, Company will provide
Customer with reasonable technical support services in
accordance with the terms set forth in Exhibit C.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse
engineer, decompile, disassemble or otherwise attempt to
discover the source code, object code or underlying structure,
ideas, know-how or algorithms relevant to the Services or any
software, documentation or data related to the Services
("Software"); modify, translate, or create derivative works based
on the Services or any Software (except to the extent expressly
permitted by Company or authorized within the Services); use the
Services or any Software for timesharing or service bureau
purposes or otherwise for the benefit of a third; or remove any
proprietary notices or labels.
2,2 Further, Customer may not remove or export from the
United States or allow the export or re-export of the Services,
Software or anything related thereto, or any direct product
thereof in violation of any restrictions, laws or regulations of the
United States Department of Commerce, the United States
Department of Treasury Office of Foreign Assets Control, or any
other United States or foreign agency or authority. As defined in
FAR section 2.101, the Software and documentation are
"commercial items" and according to DFAR section
252.227-7014(a)(1) and (5) are deemed to be "commercial
computer software" and "commercial computer software
documentation." Consistent with DFAR section 227.7202 and
FAR section 12.212, any use modification, reproduction, release,
performance, display, or disclosure of such commercial software
or commercial software documentation by the U.S. Government
will be governed solely by the terms of this Agreement and will
be prohibited except to the extent expressly permitted by the
terms of this Agreement.
2.3 Customer represents, covenants, and warrants that
Customer will use the Services only in compliance with
Company's standard published policies then in effect (the
"Policy") and all applicable laws and regulations. Customer
hereby agrees to indemnify and hold harmless Company against
any damages, losses, liabilities, settlements and expenses
(including without limitation costs and attorneys' fees) in
connection with any claim or action that arises from an alleged
violation of the foregoing or otherwise from Customer's use of
Services. Although Company has no obligation to monitor
TERMSANDCONDITIONS
Customer's use of the Services, Company may do so and may
prohibit any use of the Services it believes may be (or alleged to
be) in violation of the foregoing,
2.4 Customer shalt be responsible for obtaining and
maintaining any equipment and ancillary services needed to
connect to, access or otherwise use the Services, including.,
without limitation, moderns, hardware, servers, software,
operating systems,. networking, web servers and the like
(collectively, "'Equipment"). Customer shall also be responsible
for maintaining .the security of the Equipment, Customer account,
passwords (including but not limited to administrative and user
passwords) and files, and for all uses of Customer account or the
Equipment with or without Customer's knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3,1 Each party (the "Receiving Party") understands that the
other party (the "Disclosing Party") has disclosed or may disclose
business, technical or financial information relating to the
Disclosing Party's business (hereinafter referred to as
"Proprietary Information" of the Disclosing Party), Proprietary
Information of Company includes non-public information
regarding features, functionality and performance of the Service.
Proprietary Information of Customer includes non-publIc data
provided by Customer to Company to enable the provision of the
Services ("Customer Data"). The Receiving Party agrees: (i) to
take reasonable precautions to protect such Proprietary
Information, and (ii) not to use (except In performance of the
Services or as otherwise permitted herein) or divulge to any third
person any such Proprietary Information, The Disclosing Party
agrees that the foregoing shall not apply with respect to any
information after five (5) years following the disclosure thereof
or any information that the Receiving Party can document (a) is
or becomes generally available to the public, or (b) was in its
possession or known by it prior to receipt from the Disclosing
Party, or (el was rightfully disclosed to it without restriction by a
third party, or (d) was independently developed without use of
any Proprietary Information of the Disclosing Party or (e) is
required to be disclosed by law.
3.2 Customer shall own all right, title and Interest in and to
the Customer Data, Company shall own and retain all right, title
and interest in and to (a) the Services and Software, all
improvements, enhancements or modifications thereto, (b) any
software, applications, Inventions or other technology developed
in connection with On boarding Services or support, and (c) all
Intellectual property rights related to any of the foregoing.
33 Notwithstanding anything to the contrary, Company
shall have the right to collect and analyze data and other
information relating to the provision, use and performance of
various aspects of the Services and related systems and
technologies (including, without limitation, information
concerning Customer Data and data derived therefrom), and
Company will be free (during and after the term hereof) to (I) use
such information and data to improve and enhance the Services
and for other development, diagnostic and corrective purposes
in connection with the Services and other Company offerings, and
(ii) disClose such data solely in aggregate or other de,identified
form in connection with its business. No rights or licenses are
granted except as expressly set forth herein,
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees
described in the Order Form for the Services and On -hoarding
services in accordance with the terms therein (the "Fees"). If
Customer's use Of the Services exceeds the Service Capacity set
forth on the Order Form or otherwise requires the payment of
additional fees (per the terms of this Agreement), Customer shall
be billed for such usage and Customer agrees to pay the
additional fees in the manner provided herein. Company
reserves the right to change the Fees or applicable charges and
to institute new charges and Fees at the end of the guaranteed
pricing contract, upon thirty (30) days prior notice to Customer
(which may be sent by email). If Customer believes that Company
has billed Customer incorrectly, Customer must contact Company
no later than 60 days after the closing date on the first billing
statement in which the error or problem appeared, in order to
receive an adjustment or credit, Inquiries should be directed to
Company's customer support department,
4,2 Company may choose to bill through an invoice, in which
case, full payment for invoices issued in any given month must be
received by Company thirty (30) days after the rnalline Hate r:if Ole
invoice. Unpaid amounts are subject to a finance charge of LS%
per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, plus all expenses of
collection and may result in immediate termination of Service
Customer shall be responsible for all taxes associated with
Services other than U.S, taxes based on Company's net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this
Agreement is for the Initial Service Term as specified in the Order
Form, and shall be automatically renewed for additional periods
of the same duration as the Initial Service Term (collectively, the
"Term"), unless either party requests termination at least thirty
(30) days prior to the end of the then -current term,
5.2 In addition to any other remedies it may have, either
party may also terminate this Agreement upon thirty (30) days'
notice (or without notice in the case of nonpayment), if the other
party materially breaches any of the terms or conditions of this
Agreement. Customer will pay in full for the Services up to and
including the last day on which the Services are provided, Upon
any termination, Company will make all Customer Data available
to Customer for electronic retrieval for a period of thirty (30)
days, but thereafter Company may, but is not obligated to, delete
stored Customer Data, All sections of this Agreement which by
their nature should survive termination will survive termination,
including, without limitation, accrued rights to payment,
confidentiality obligations, warranty disclaimers, and limitations
of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with
prevailing industry standards to maintain the Services in a
manner which minimizes errors and interruptions in the Services
and shall perform the On -boarding Services in a professional and
workmanlike manner. Services may be temporarily unavailable
for scheduled maintenance or for unscheduled emergency
maintenance, either by Company or by thirc4party providers, or
because of other causes beyond Company's reasonable control,
but Company shall use reasonable efforts to provide advance
notice in writing or by e-mall of any scheduled service disruption.
HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH
IN THIS SECTION, THE SERVICES AND ON -BOARDING SERVICES
ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT.
7. INDEMNITY
Company shall hold Customer harmless from liability to
third parties resulting from infringement by the Service of any
United States patent or any copyright or misappropriation of any
trade secret, provided Company Is promptly notified of any and
all threats, claims and proceedings related thereto and given
reasonable assistance and the opportunity to assume sole control
over defense and settlement; Company will not be responsible
for any settlement it does not approve in writing. The foregoing
obligations do not apply with respect to portions or components
of the Service (i) not supplied by Company, (ii) made in whole or
in part in accordance with Customer specifications, (iii) that are
modified after delivery by Company, (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 Service
is not strictly In accordance with this Agreement. If, due to a
claim of infringement, the Services are held by a court of
competent jurisdiction to be or are believed by Company to be
infringing, Company may, at its option and expense (a) replace or
modify the Service 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 the Service, or (c) if neither of the foregoing is
commercially practicable, terminate this Agreement and
Customer's rights hereunder and provide Customer a refund of
any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY,
EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND iTS
SUPPLIERS (INCLUDING BUT NOT LiMITED TO ALL EQUIPMENT
AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT
BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS
RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION
OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA
OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT,
EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S
REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT,
TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER
CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR
THE SERVICES UNDER THIS AGREEMENT iN THE 12 MONTHS
PRIOR TO THE ACT THAT GAVE RiSE TO THE LIABILITY, IN EACH
CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
If any provision of this Agreement is found to be
unenforceable or invalid, that provision will be limited or
eliminated to the minimum extent necessary so that this
Agreement will otherwise remain in full force and effect and
enforceable. This Agreement is not assignable, transferable or
sublicensable by Customer except with Company's prior written
consent. Company may transfer and assign any of its rights and
obligations under this Agreement without consent. This
Agreement 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, and that all waivers and modifications must be in a
writing signed by both parties, except as otherwise provided
herein. No agency, partnership, joint venture, or employment is
created as a result of this Agreement and Customer does not
have any authority of any kind to bind Company in any respect
whatsoever. In any action or proceeding to enforce rights under
this Agreement, the prevailing party will be entitled to recover
costs and attorneys' fees. All notices under this Agreement will
be in writing and will be deemed to have been duly given when
received, if personally delivered; when receipt is electronically
confirmed, if transmitted by facsimile or e-mail; the day after it is
sent, if sent for next day delivery by recognized overnight delivery
service; and upon receipt, if sent by certified or registered mail,
return receipt requested, This Agreement shall be governed by
the law of the State of Washington without regard to its conflict
of law provisions,
lXHlEi1 A
Statement of Work
Fire Data Solutions will provide the following on -boarding milestones:
• Initial data integration:
Upload employee information. Customer to provide data on FDS formatted Excel spreadsheet,
Confirm with customer that personal protective equipment (PPE) elements are uniquely identified (barcode or
hand-written ID)
o Upload PPE inventory. Customer to provide data on FDS formatted Excel spreadsheet.
Initial customer access
p Create secure log -on access for all personnel
o Assist with employee access rights
• Product training:
o Provide training on use of the software (may be in -person or web -based at discretion of FDS).
o Provide ongoing training support (may be in -person or web -based at discretion of FDS).
o Provide links to all software information (as developed by FDS).
o Distribute product change/improvement training as needed.
Business contact/review:
At 30 and 60 days to ensure customer/product integration success.
o Contact at 80 days to get customer feedback; confirm customer desire to transition into annual contract period,
EXHIBIT
Service Level Terms
The Services small be available 99.9%, measured monthly, excluding holidays and weekends and scheduled arrrtenance. q,
Customer requests ce daring these hours, any uptirn or dcwntis e calculation will exclude periods affected by such
maintenance, further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company's
control will also be excluded from any such calctalation. Customer's sole nd exclusive remedy, and Company's entire liability, mn
connection with Service availability shah be that for each period of dowrrytirnr lasting longer than one hour, Company will credit
Customer "Is of one monthzs Service fees for cacti periodof 30 or more consecutive minutes of downtime; provided that no more
than one such credit will accrue per day L wntirite small begin to accrue as soon as Customer (with notice to Company) recognizes
that downtime is taking, place and continues until the availaedify of the Services is restored, To receive downtime credit, Customer
ust notify Company in +writing within 24 fours from the time of downtime; and failure to provide such notice uvill forfeit the right to
receive downtime credit. such credits may not be redeemed For cash and snail not he cumulative beyond a total of credits for one CO week of Service Fees in anyone (t) calendar month in any event Company will only apply a credit to the month in which the incident
occurred. Company's blocking of data 1ommtinications or other Service rn accurtfaoce with its policies shall not be deemed to be a
failure of Company to provide adequate service levels Un r this agreement.
EXHIBIT C
Support Terms
Company will provide Technical Support to Customer via both telephone and electronic mail, Web -based conferencmg may also be
utilized. We will make every effort to respond to requests for service within (1) business day, with the exclusion of Federal Holidays.
Customer may initiate a help request by calling (800) 962-7194, or any time by emailing support@firedatasolutions,com.
AMEND ENT TO S, , S SERVICES AGREE ENT
This amendment to the attached SAAS SERVICES AGREEMENT ("agreement") entered into
between Fire Data Solutions and the City of Yakima Fire Department on October 31, 2019, is
hereby amended, in accordance with section nine of the terms and conditions of the agreement,
as follows:
Contrary to any language indicating otherwise, the Initial Service Term of the agreement
is deemed to have started on October 1, 2020, and shall run through September 30,
2021,
All other terms and conditions of the agreement remain in effect unchanged,
This amendment shall become effective once authorized signatories of both Fire Data Solutions
and the City ufYakima have signed this Amendment.
CITY OF YAKIMA
City Manager
FIRE DATA SOLUTIONS
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CITY CONTRACT NO.
01761461171
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