HomeMy WebLinkAboutGatekeeper Systems, Inc. - APP-139 Subscription Ageement GATEKEEPER SYSTEMS,INC.
APP- 139 SUBSCRIPTION AGREEMENT
THIS APP-139 SUBSCRIPTION AGREEMENT (the "Agreement") is made by and between
GateKeeper Systems, Inc.,a Minnesota corporation, having its principal place of business at 880 Blue
Gentian Road, Suite 140 Eagan, Minnesota 55121 ("GSI") and Yakima Air Terminal-McAllister
Field("Customer"), a body corporate and politic, having its principal place of business at 2406 W
Washington Ave Suite B, Yakima, WA 98903.
WHEREAS, GSI is in the business of providing specialized airport software to airports; and
WHEREAS,the United States Federal Aviation Agency ("FAA")requires all commercial
service airports to conduct airfield inspections ("Inspections")to ensure that the airport is maintaining
compliance with the FAA's security and operational requirements and to maintain reports of such
inspections (the "Inspection Data"); and
WHEREAS,GSI has developed its proprietary web-based App-139 computer software system
("App-139")to receive, store, and transmit GIS imagery and Inspection Data to assist airports in
complying with the FAA's Inspection and Inspection Data requirements, all as more fully described at
www.app-139.com.
NOW,THEREFORE, in consideration of the foregoing, the parties hereby agree as follows:
1. SUBSCRIPTION FOR SERVICES. GSI will provide Customer with unlimited
access to App-139 for Customer's own use during the term of this Agreement. This subscription
agreement includes the following services to create an instance of the App-139 software for the
Customer's airfield:
a. License to App-139 Software. Including desktop and mobile versions for as many
users as deemed appropriate by Customer
b. Hosted computer server environment and equipment
c. System support and maintenance
d. Implementation services including installation, configuration, training, testing and
documentation.
2. TERM. The term of this Agreement shall commence on the Start Date and terminate on
the End Date, as both dates are set forth on Schedule A. Customer may terminate this Agreement
without cause at any time upon ninety (60) days' notice to GSI. However, Customer shall not be entitled
to any refund of the annual subscription fee for the term year in which such termination occurs. The
contract may be renewed for additional periods upon mutual written consent of both parties.
3. PRICE. The annual subscription fee payable by Customer for App-139 is set forth in
Schedule A and is payable at the commencement of each year during which this Agreement remains in
effect. GSI reserves the right to increase the annual subscription fee after the initial term of this
Agreement.
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4. CUSTOMER RESPONSIBILITIES. Customer is responsible for all activity
occurring under Customer's account and shall abide in all material respects by all applicable local, state,
national and foreign laws, treaties and regulations in connection with Customer's use of App-139.
Customer shall be solely responsible for protection of its transmission facilities,premises,
equipment, the integrity of its data entered on App-139, and it's ID(s), password(s), user name and the
like, from all unauthorized access or use. Customer is not authorized to allow 3rd party use of App-139
without prior GSI authorization in writing. Customer shall use reasonable measures commensurate with
accepted industry standards for such protection.
Customer acknowledges that the internet, cellular telephone network, or any wide-area
communication network that may be utilized ("WAN") for the operation of App-139 is not a secure or
an error free network and that transmissions made on the WAN may not be completed or may contain
errors or omissions. The WAN, or portions thereof, may become inaccessible or inoperable, in whole or
in part, at any time or from time to time.
5. TAXES. Customer shall be responsible for all taxes on the App-139 annual
subscription fee, exclusive of taxes based solely on GSI's net income. Customer will reimburse GSI for
all sales, use, or exercise taxes assessed by any taxing authority, whether such taxes are invoiced
initially to Customer or assessed retroactively based upon audits by any governmental taxing authority.
If Customer is exempt from state sales taxes it shall provide GSI with an exemption certificate prior to
the execution of this contract.
6. WARRANTY/MAINTENANCE AND LIMITED REMEDY. GSI warrants that
during the term of this Agreement that App-139 will meet the following service level standards:
Definitions: For purposes of this Warranty:
1. Cloud Server: Customer's unique virtual machine instance
2. Cloud Server Host: means the physical server which hosts Customer's cloud server;
3. Data Center Network: means the portion of the utilized network extending from the network
egress point of Customer's cloud server host to the outbound port of the data center border
router;
4. Scheduled Maintenance: means system maintenance that is announced at least ten business days
in advance and includes software updates and/or upgrades.
Network
Data Center Network will be available 99% of the time in any given monthly period, excluding
Scheduled Maintenance.
Data Center Infrastructure
Data Center HVAC and power will be functioning 99% of the time in any given monthly period,
excluding Scheduled Maintenance. Infrastructure downtime exists when the host server's downtime
occurs as a result of power or heat problems.
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Cloud Server Hosts
If a cloud server host fails, restoration or repair will be complete within one hour of problem
identification.
Backup
In order to minimize the risk of data loss, Customer's data will be backed up multiple times per day and
stored on a separate server. A complete system backup will be done on a weekly basis.
Migration
If a cloud server migration is required because of cloud server host degradation, GSI will notify
Customer at least 24 hours in advance of beginning the migration,unless GSI determines in its
reasonable judgment, that GSI must begin the migration sooner to protect Customer's cloud server data.
Either way, GSI guarantees that the migration will be complete within three hours of the time that GSI
begins the migration.
Maintenance Services
Under this Agreement, GSI will maintain in good working order the computer software licensed to the
Customer and known as the GateKeeper Systems App-139 software and other related software
components supplied by GSI. This software is used in the operation of FAA required daily airfield
inspections and herein after referred to as "Covered Software."
Software Support Services
GSI is providing both the server hardware and application software required to operate the APP-139
software module. GSI will provide software support to Customer's personnel as necessary to eliminate
or correct system/software malfunctions and return the system/software to normal operation. The
categories of software support to be provided under this contract include:
• Response to System Problems: GSI will provide on-line telephone support to Customer's
personnel as needed each month for the period of the contract to remotely diagnose and make
required changes to the Covered Software. Support will be provided by qualified GSI
personnel familiar with the App-139 software version installed at the Airport site.
• Software Configuration. GSI will make routine configuration changes to the system as
needed by the airport for items such as, but not limited to, Users, Facilities, Conditions,
security settings.
• System Updates: GSI will install "Critical Updates" and Service Packs for the Microsoft
operating and SQL database software.
• Software Upgrade: The Covered Software will be"upgraded" to the most recent version as a
part of this contract. Customer's staff will be notified of the scheduling of these upgrades,
system downtime and any tasks required of the Customer.
Support Availability
Telephone support is available 24 hours per day and 7 days per week for the term of this subscription
Agreement.
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Support Request Procedure
Customer shall identify in writing at the initiation of this Agreement Customer's,personnel authorized
to request software assistance. When assistance is required, the responsible individual should call GSI as
follows:
GateKeeper Emergency Support: (866) 688-3404
This number should be used only for support issues that need immediate resolution. This number is
answered 24 hours per day, 365 days per year. If the support specialist answering the phone cannot
address the problem, the operator will record information about the request or problem and immediately
contact the best available GSI specialist to respond.
GateKeeper Non-Emergency Support: (651) 365-0700
This number should be used during normal business hours for issues or questions that do not need
immediate resolution to maintain system operation. app139support@gksys.com can also be used for Non-
Emergency support issues or questions.
Response Time
GSI provides customers covered under an annual maintenance agreement with priority support response
times. GSI will respond to issues immediately during normal working hours (8:00 am to 5:00 p.m.
Monday through Friday local Minneapolis time) at all other times (nights, weekends, holidays, etc.) a
response will be made within 1.5 hours by a qualified software specialist.
Customer Responsibilities
Customer personnel making a request for assistance should be prepared to provide detailed information
regarding the problem experienced, actions already taken to remedy the problem and current operating
condition of the software and entire system. Customer personnel making the phone request should be
prepared to work with GSI personnel as necessary for the duration of the phone call.
Exclusions
• On-site support
• Formal training of Customer's personnel on the operation of the system other than responding to
specific questions.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESSED AND IMPLIED
WARRANTIES. GSI MAKES NO OTHER WARRANTIES OF ANY KIND, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE.
In the event of any breach of this limited warranty, GSI's sole liability and Customer's sole
remedy shall be that GSI will provide to Customer a credit for the annual Subscription Fee paid by
Customer pro-rated to the amount of time App-139 was unavailable for Customer's usage.
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7. INDEMNIFICATION To the extent permitted by applicable law in Customer's
jurisdiction, Customer agrees to indemnify, defend, and hold GSI harmless from any third-party claims,
damages,costs and expenses (including reasonable attorney's fees) arising out of or related to the use by
Customer of App-139.
a. GSI shall take all necessary precautions in performing the Services to prevent injury to persons
or property. GSI agrees to defend, indemnify and hold harmless the Customer,its elected and
appointed officials, officers, employees, attorneys, agents, and volunteers from any and all
claims, demands, losses, liens, liabilities,penalties, fines, lawsuits, and other proceedings and
all judgments,awards,costs and expenses(including reasonable costs and attorney fees)which
result or arise out of the negligent acts or omissions of Contractor, its officials, officers,
employees or agents.
b. If any suit,judgment, action, claim or demand arises out of, or occurs in conjunction with,the
negligent acts and/or omissions of both GSI and the Customer, or their elected or appointed
officials, officers, employees, agents, attorneys or volunteers, pursuant to this Contract, each
party shall be liable for its proportionate share of negligence for any resulting suit,judgment,
action, claim, demand, damages or costs and expenses, including reasonable attorneys' fees.
c. GSI's Waiver of Employer's Immunity under Title 51 RCW. If any design or engineering
work is done pursuant to this Contract, GSI intends that its indemnification, defense, and hold
harmless obligations set forth above in Section A shall operate with full effect regardless of
any provision to the contrary in Title 51 RCW, Washington's Industrial Insurance
Act. Accordingly, to the extent necessary to fully satisfy GSI's indemnification, defense, and
hold harmless obligations set forth above in section A, GSI specifically waives any immunity
granted under Title 51 RCW,and specifically assumes all potential liability for actions brought
by employees of the GSI against the Customer and its elected and appointed officials,officers,
employees, attorneys, agents, and volunteers. The parties have mutually negotiated this
waiver. GSI shall similarly require that its subcontractors, and anyone directly or indirectly
employed or hired by GSI, and anyone for whose acts GSI may be liable in connection with
its performance of this Agreement, shall comply with the terms of this paragraph, waive any
immunity granted under Title 51 RCW, and assume all potential liability for actions brought
by their respective employees. The provisions of this section shall survive the expiration or
termination of this Agreement.
d. Nothing contained in this Section or this Contract shall be construed to create a liability or a
right of indemnification in any third party.
e. The terms of this section shall survive any expiration or termination of this Contract.
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8. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN SECTION 7,
"INDEMNIFICATION" ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, LOSS OF PROFIT OR GOODWILL, CONSEQUENTIAL OR OTHER
DAMAGES RESULTING FROM OR IN CONNECTION WITH CUSTOMER'S USE OF APP-139
OR ANY OTHER MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
This limitation of liability includes, but is not limited to, any damages caused by: (1) the integrity
of the data supplied by Customer in Customer's transmissions; or(2)fees, fines, or penalties assessed
against Customer by any federal, state or local regulatory agency.
Except for GSI's breach of its indemnification obligations as set forth in Section 7 and the
obligations set forth in Schedule B, GSI's entire liability to Customer or any other party for any loss or
damage resulting from any claims, demands, or actions arising out of or related to this Agreement or the
failure of App-139 to function properly shall not exceed the amount of GSI's available insurance
coverage. Insurance and record retention requirements, which have been reviewed and accepted by the
City, are listed within Schedule B, which requirements are fully incorporated into this Agreement.
9. DATA OWNERSHIP, SECURITY AND PROTECTION.
Inspection Data As between the parties, Inspection Data is and shall remain the sole and exclusive
property of Customer. No Inspection Data will be sold, assigned, leased, licensed, disclosed or otherwise
disposed of to third parties or commercially exploited by GSI.
10. DATA SECURITY
10.1 GSI will establish and maintain safeguards against the unauthorized access
or use, destruction, loss or alteration of Inspection Data in the possession
or control of GSI or its agents or subcontractors which are no less rigorous
than industry-standard measures and which are no less rigorous than those
maintained by GSI for its own data of a similar nature.
10.2 Without limiting the generality of the foregoing, GSI will use
commercially reasonable efforts to guard against the unauthorized access,
alteration, use or destruction of Inspection Data. Such measures will
include the installation of software that: (a) requires all users to enter a
user identification and password prior to gaining access to App-139; and
(b) controls and tracks the addition and deletion of users.
11. GENERAL. Neither party may assign this Agreement or any of the rights under this
Agreement without prior written consent of the other party. Any attempt to do so is void.
This Agreement represents the entire agreement between the parties with respect to the subject
matter hereof.
This Agreement may not be modified except in writing, signed by both parties.
Neither party will be liable for its inability to perform to the extent caused by conditions beyond
its reasonable control, including but not limited to environmental conditions at the other party's
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premises, its third-party provider or other contractors, labor disputes, perils or other hazards,provided
that such party shall resume performance as promptly as possible after such condition or occurrence has
been resolved.
If any portion of this Agreement is held invalid, such invalidity shall not affect the remaining
portions of this Agreement. The parties agree to replace the invalid portion with a valid provision that
most closely reflects the intent and economic effect of the invalid provision.
Failure or delay by either party to exercise any right,power,privilege or remedy will not
constitute a waiver thereof. Any provision contained herein that by its nature could reasonably be
construed to survive expiration of this Agreement shall so survive.
This Agreement shall be governed by and construed according to the laws of the state where
Customer's principal place of business as stated at the beginning of this Agreement is located.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives.
GateKeeper Systems,Inc. Customer
By: By:
Printed: Jamie Beiswanger Printed: �V�
Title: National Sales Manager Title: kVt C
Date: 6/10/2024 Date: 1'Lf
CITY CONTRACT NO 0? r O7
RESOLUTION NO: Al
Schedule A
Airport Name: Yakima Air Terminal-McAllister Field Airport ID: YKM
Enplanement Category: Under 100,000
Term of the Agreement:
Full Production Start Date: July 1, 2024 End Date: June 30, 2027
Annual Renewal Date: July 1
Modules Included:
Base Software Y
AGIS Data N
Mobile Y
Pricing:
Annual App-139 Subscription Fee:
Year#1 $4,680
Year#2 $4,680
Year#3 $4,680
Other Fees:
Implementation Fee - One Time: N/A
Total Payment Due:
Year#1 $5,068.44 ($4,680.00+8.3% tax)
Year#2 $5,068.44 ($4,680.00+8.3% tax)
Year#3 $5,068.44($4,680.00+8.3% tax)
Billing Information:
Form of invoice desired: Paper Copy E-Mail copy
Contact Person:
Mailing Address:
Phone Number:
E-Mail Address:
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Schedule B
Contractor's Liability Insurance
At all times during performance of the Services and this Contract,Contractor shall secure and maintain in
effect insurance to protect the City and Contractor from and against any and all claims, damages, losses,
and expenses arising out of or resulting from the performance of this Contract. Contractor shall provide
and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves
the right to require higher limits should it deem it necessary in the best interest of the public.
Contractor will provide a Certificate of Insurance to the City as evidence of coverage for each of the
policies and outlined herein. A copy of the additional insured endorsement attached to the policy will be
included with the certificate. This Certificate of insurance shall be provided to the City, prior to
commencement of work.
Failure of City to demand such verification of coverage with these insurance requirements or failure of
City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver
of Contractor's obligation to maintain such insurance"
The following insurance is required:
a. Commercial Liability Insurance
Before this Contract is fully executed by the parties, Contractor shall provide the City with a
certificate of insurance as proof of commercial liability insurance with a minimum liability limit
of Two Million Dollars ($2,000,000.00) per occurrence, combined single limit bodily injury and
property damage, and Two Million Dollars ($2,000,000.00) general aggregate. If Contractor
carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and
Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and
volunteers shall be named as additional insureds for such higher limits. The certificate shall clearly
state who the provider is, the coverage amount, the policy number, and when the policy and
provisions provided are in effect. Said policy shall be in effect for the duration of this Contract.
The policy shall name the City of Yakima, its elected and appointed officials, employees, agents,
attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will not
cancel or change the insurance without first giving the City prior written notice. The insurance
shall be with an insurance company or companies rated A-VII or higher in Best's Guide and
admitted in the State of Washington. The requirements contained herein, as well as City of
Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall
not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this
contract.
b. Employer's Liability(Stop Gap)
Contractor and all subcontractor(s) shall at all times comply with all applicable workers'
compensation, occupational disease, and occupational health and safety laws, statutes, and
regulations to the full extent applicable, and shall maintain Employer's Liability insurance with a
limit of no less than$1,000,000.00. The City shall not be held responsible in any way for claims
filed by Contractor or its employees for services performed under the terms of this Contract.
Contractor agrees to assume full liability for all claims arising from this Contract including claims
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resulting from negligent acts of all subcontractor(s). Contractor is responsible to ensure
subcontractor(s)have insurance as needed. Failure of subcontractors(s) to comply with insurance
requirements does not limit Contractor's liability or responsibility.
Contractor's insurance coverage shall be primary insurance with respect to those who are Additional
Insureds under this Contract. Any insurance, self-insurance or insurance pool coverage maintained by the
City shall be in excess of the Contractor's insurance and shall not contribute to it.
If at any time during the life of the Contract, or any extension, Contractor fails to maintain the required
insurance in full force and effect, all work under the contract shall be discontinued immediately. Any
failure to maintain the required insurance may be sufficient cause for the City to terminate the Contract.
Should a court of competent jurisdiction determine that this Contract is subject to RCW 4.24.115, then, in
the event of liability for damages arising out of bodily injury to persons or damages to property caused by
or resulting from the concurrent negligence of Contractor and the City, its officers, elected and appointed
officials, employees, agents, attorneys and volunteers, Contractor's liability hereunder shall be limited to
the extent of the Contractor's negligence.
Professional Service: Defense & Indemnity Agreement: The Contractor agrees to defend,
indemnify and save harmless the City of Yakima, its appointed and elective officers and
employees, from and against all loss or expense, including but not limited to judgments,
settlements, attorney's fees and costs by reason of any and all claims and demands upon the
City of Yakima, its elected or appointed officials or employees for damages, whether such
damage is due to the negligence, or errors or omissions of the Contractor, his/her
subcontractors,its successor or assigns,or its or their agent,servants,or employees,It is further
provided that no liability shall attach to the City of Yakima by reason of entering into this
Contract, except as expressly provided herein.
Professional Liability: The Contractor shall provide evidence of Professional Liability insurance
covering professional errors and omissions. Such policy must provide the following minimum
limits:
$2,000,000 per Claim
If insurance is on a claims made form, its retroactive date, and that of all subsequent renewals,
shall be no later than the effective date of this Contract.
Inspection and Retention of Records
The parties understand that the primary aspect of this Agreement is access to data associated with App-
139. All records associated with this Agreement and the Contractor's services hereunder, including, the
data associated with App-139 shall be collectively referred to herein as "Data". The Data shall, at all
times, be subject to inspection by the City. Contractor shall save and store the Data, which will be
available for the City to access at any time during this Agreement.
The Data must be made available to the City, and said Data constitutes City of Yakima records. The Data
must be produced to third parties, if required pursuant to the Washington State Public Records Act,
Chapter 42.56 RCW, or by law. All Data must be retained by Contractor while this Agreement, or any
modification, amendment, extension, or replacement thereof is in place. If the Agreement is terminated
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for any reason or otherwise expires,Contractor shall maintain the Data for a period of no less than 30 days
to allow the City to access the Data and retrieve any Data that the City wishes to retrieve.
The terms of this section shall survive any expiration or termination of this Agreement.
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