HomeMy WebLinkAboutAgreement A-19-589 with Dude Solutions Inc..pdf Agreement No. 19-589
1 AGREEMENT
2 This Agreement ("Agreement") is made and entered into this 19th day of November
3 2019 ("Effective Date"), by and between the County of Fresno, a political subdivision of the
4 State of California ("COUNTY"), and Dude Solutions, Inc., (together with its direct and indirect
5 subsidiaries, collectively, "CONTRACTOR"), a Delaware corporation ("CONTRACTOR").
6 COUNTY and CONTRACTOR may be referred to as a "Party" or collectively as "Parties" to this
7 Agreement.
8 RECITALS
9 WHEREAS, COUNTY desires to purchase Software as a Service ("SaaS") of Energy
10 Manager software as a service (SaaS)from CONTRACTOR for energy management software for
11 utility tracking and energy savings;
12 WHEREAS, Energy Manager software SaaS is software that will allow COUNTY the ability
13 to improve utility bill visibility, consumption, and savings;
14 WHEREAS, CONTRACTOR represents to COUNTY that the SaaS subscription, and
15 subscription of Energy Manager SaaS provided by CONTRACTOR, along with professional
16 services from CONTRACTOR, would meet the stated needs of the COUNTY, including
17 streamlining and improving COUNTY's utility bill workflow process; and
18 WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the
19 purchase of the subscription of the Energy Manager SaaS.
20 NOW, THEREFORE, for and in consideration of the promises herein, and for other good
21 and valuable consideration, the Parties agree as follows:
22 WITNESSETH
23 SECTION 1. — DEFINITIONS
24 1.1 "Account" means COUNTY's specific account where COUNTY subscribes
25 to access and uses Service(s).
26 1.2 "Account User" means: (i) with respect to an Enterprise Application, as
27 defined in Section 1.8, herein, each employee, consultant and contractor specified by
28 COUNTY to access and use the COUNTY's Account; and (ii) with respect to a Named
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1 User Application, each unique Named User for which COUNTY has paid an applicable
2 subscription fee to CONTRACTOR for such Named User Application.
3 1.3 "Applications" means the SaaS enterprise asset management applications
4 designed, developed, marketed and made available by CONTRACTOR, which include,
5 without limitation, the following functionality: enterprise workflow, communication, content
6 and business process logic for facilities, technology, business operations, facility
7 scheduling, building automation, safety planning, crisis management, geographic
8 information systems, energy and transportation management.
9 1.4 "Confidential Information" means any non-public information and/or
10 materials disclosed in writing or orally by a Party under this Agreement (the "Disclosing
11 Party") to the other Party (the "Receiving Party"), which (i) is designated in writing as
12 confidential at the time of disclosure, or(ii)with respect to non-public information disclosed
13 orally, the Disclosing Party sends the Receiving Party a written notice to Receiving Party
14 within 15 days after oral disclosure identifying the non-public information that was
15 disclosed as its confidential information, including when, where, how and to whom such
16 non-public information was disclosed. For avoidance of doubt, CONTRACTOR's
17 Confidential Information shall include the source code, data structure, algorithms and logic
18 of the Applications and Services. Notwithstanding the foregoing, Confidential Information
19 shall not include any information that (i) is or becomes generally known to the public
20 without breach of any obligation owed to the Disclosing Party, (ii) was known to the
21 Receiving Party prior to its disclosure by the Disclosing Party without breach of any
22 obligation owed to the Disclosing Party, (iii) is received from a Third Party without breach
23 of any obligation owed to the Disclosing Party, or(iv)was independently developed by the
24 Receiving Party.
25 1.5 "Content" means all audio and visual information, documents, content,
26 materials, products and/or software contained in, or made available through Services.
27 1.6 "Documentation" means the user documentation relating to the Services,
28 including but not limited to descriptions of the functional, operational and design
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1 characteristics of the Services.
2 1.7 "Enterprise Application" means each Application that is not a Named User
3 Application.
4 1.8 "Highly-Sensitive Personal Information" means an Account User's (i)
5 government-issued identification number (including social security number, driver's
6 license number or state-issued identified number), (ii) financial account number, credit
7 card number, debit card number, credit report information, in each case with or without
8 any required security code, access code, personal identification number or password that
9 would permit access to such Account User's financial account; and/or (iii) biometric data.
10 1.9 "Intellectual Property Rights"means all ideas, concepts, designs, drawings,
11 packages, works of authorship, processes, methodologies, information, developments,
12 materials, inventions, improvements, software, and all intellectual property rights
13 worldwide arising under statutory or common law, including without limitation, all (i)
14 patents and patent applications owned or licensable by a Party hereto; (ii) rights
15 associated with works of authorship, including copyrights, copyright applications,
16 copyright registrations, mask work rights, mask work applications and mask work
17 registrations; (iii) rights related to protection of trade secrets and Confidential Information;
18 (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those
19 set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues
20 and extensions of the foregoing (as and to the extent applicable) now existing, hereafter
21 filed, issued or acquired.
22 1.10 "Named User" means, with respect to a Named User Application, each
23 unique, identified named user for which COUNTY has paid an applicable named user
24 subscription fee to CONTRACTOR for such Named User Application.
25 1.11 "Named User Application" means an Application that CONTRACTOR (i)
26 limits access and use thereof to Named Users, and (ii) for which the applicable
27 subscription fee is determined based upon the number of COUNTY's Named Users.
28 1.12 "Privacy Policy" means the CONTRACTOR privacy policy, as amended
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1 from time-to-time, which can be viewed by clicking the "Privacy" hypertext link located on
2 www.dudesolutions.com.
3 1.13 "Services" means each of the Application(s) subscribed to by COUNTY
4 pursuant to this Agreement. COUNTY shall specify each of the Services that COUNTY
5 shall subscribe to as part of its Account registration process.
6 1.14 "COUNTY" means the County of Fresno, a political subdivision of the State
7 of California.
8 1.15 "COUNTY Data" means all data and information provided by or on behalf
9 of COUNTY to a Service, including that which the Account Users input or upload to a
10 Service.
11 1.16 "Subscription Fee" means, with respect to each Services subscription, the
12 annual subscription fee invoiced to COUNTY by CONTRACTOR prior to the Initial Term,
13 and each applicable Renewal Term for such Services subscription, which is required to
14 be paid by COUNTY in order for COUNTY to be permitted to access and use the Services
15 in such Services subscription.
16 1.17 "Third Party" means a party other than COUNTY or CONTRACTOR.
17
SECTION 2. —OBLIGATIONS OF THE CONTRACTOR
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A. SAFEGUARDING SYSTEM SaaS
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COUNTY will follow its present practices to safeguard SaaS given subscription access to
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21 COUNTY by CONTRACTOR. A copy of COUNTY's "Information Technology (IT)
Standards and Preferred Practices" will be made available upon request.
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B. SCOPE OF WORK REQUIREMENTS
23
24 CONTRACTOR shall adhere to the Scope of Work Requirements, as described in
25 Attachment A.
26 C. COUNTY ADMINISTRATOR & PROJECT MANAGER
27 Upon execution of this Agreement, COUNTY's Contract Administrator shall designate
28 one individual from the Internal Services Department (ISD) who will function as Project
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1 Manager, with responsibility for day-to-day management of the implementation of
2 Energy Manager project. The Project Manager and COUNTY personnel shall have the
3 necessary and appropriate training and experience to implement the SaaS. COUNTY
4 acknowledges CONTRACTOR's reliance on same.
5 COUNTY appoints its Chief Information Officer (CIO), or his or her designee, as
6 COUNTY's Contract Administrator, with full authority to deal with CONTRACTOR in all
7 matters concerning this Agreement.
8 D. SUPPORT &TRAINING
9 CONTRACTOR will provide COUNTY unlimited virtual access to CONTRACTOR's
10 support team, "Legendary Support Team," via phone, email or chat for immediate
11 assistance. CONTRACTOR is available Monday through Friday, excluding Federal
12 holidays, 8 am — 6 pm EST. CONTRACTOR can assist with any feature/functionality
13 questions. For communications via phone, [877-655-38331, CONTRACTOR will answer
14 calls within 3 rings. For communications via email, support@dudesolutions.com,
15 CONTRACTOR will respond within 1 hour. Support dialogue is also offered via chat.
16 Virtual training and virtual support will be provided throughout the term of the Agreement
17 at no additional cost.
18 1. Availability: CONTRACTOR shall use commercially reasonable efforts to make
19 the Services available (i) 99.9% of the time during the hours of 6:00 a.m.
20 (Eastern time) to 10:00 p.m. (Eastern time), Monday through Friday, excluding
21 holidays ("Business Hours"), and (ii) 99.5% of the time, determined on a twenty-
22 four (24) hours a day, seven (7) days a week basis. Availability shall be
23 calculated on a monthly basis. For purposes of calculating availability, the
24 Services shall not be deemed unavailable during any period arising from: (i)
25 routine system maintenance that is performed weekly during non-Business
26 Hours; (ii) scheduled downtime for extended system maintenance (of which
27 CONTRACTOR shall give at least 8 hours' prior notice to COUNTY and which
28 CONTRACTOR shall schedule to the extent reasonably practicable outside of
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1 Business Hours); and (iii) any unavailability caused by circumstances beyond
2 CONTRACTOR's reasonable control, including, for example, an act of God, act
3 of government, flood, fire, earthquake, civil unrest, act of terror, strike or other
4 labor problem (other than one involving Our employees), Internet service
5 provider failure or delay, non-CONTRACTOR software or hardware, or denial of
6 service attack
7 E. SCOPE OF WORK REQUIREMENTS AND PRICING
8 CONTRACTOR's scope of work and pricing are attached as Attachments A and B, and are
9 incorporated by reference. These service obligations are defined as:
10 1. Professional Services. CONTRACTOR shall provide and perform professional,
11 technical, consulting and/or other services (collectively, "Professional Services"),
12 which are mutually agreed upon and described in one or more statements of work.
13 Each statement of work shall be effective, incorporated into and form a part of this
14 Agreement when duly executed by an authorized representative of each of the Parties.
15 Each statement of work shall (i) describe the fees and payment terms with respect the
16 Professional Services being provided pursuant to such statement of work, (ii) identify
17 any work product that shall be developed pursuant to such statement of work, and (iii)
18 set forth each Party's respective ownership and proprietary rights with respect to any
19 work product developed pursuant to such statement of work. CONTRACTOR
20 represents and warrants that all such Professional Services shall be performed in a
21 professional and workmanlike manner.
22 2. COUNTY Data Integrity Adherence. CONTRACTOR shall not edit or disclose any
23 information regarding COUNTY's Account, including any COUNTY Data, without
24 COUNTY's prior permission, except in accordance with this Agreement.
25 Notwithstanding the foregoing, CONTRACTOR is hereby permitted to provide certain
26 statistical information (e.g., usage, average costs or time values, or user traffic
27 patterns) in aggregated and de-identified form to Third Parties, or to other Application
28 subscribers.
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1 3. Implementation and Support. Protection of COUNTY Data. CONTRACTOR shall
2 maintain commercially reasonable administrative, physical, and technical safeguards
3 for protection of the security, confidentiality, and integrity of COUNTY Data.
4
F. COUNTY THIRD PARTY INTERACTIONS
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1. Relationship to Third Parties. In connection with COUNTY's use of the Services,
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COUNTY may: (i) enter into correspondence with and/or participate in promotions
7
8 of advertisers or sponsors showing their goods and/or services through the
Services; (ii) purchase goods and/or services, including implementation,
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customization, content, forms, schedules, integration and other services; (iii)
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exchange data, integrate, or interact between COUNTY's Account, the Services
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12 and a Third-Party provider; (iv) be offered additional functionality within the user
13 interface of the Services through use of the Services' application programming
interface; and/or (v) be provided content, knowledge, subject matter expertise in the
14
creation of forms, content and schedules. Any such activity, and any terms,
15
conditions, warranties or representations associated with such activity, shall be
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17 solely between COUNTY and the applicable Third Party. CONTRACTOR shall
18 have no liability, obligation or responsibility for any such correspondence, purchase,
promotion, data exchange, integration or interaction between COUNTY and any
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such Third Party.
20
21 2. Ownership. COUNTY is the owner of all Third-Party content and data loaded into
22 the COUNTY Account. As the owner, it is COUNTY's responsibility to make sure
23 the Third-Party content and data meets the County's particular needs.
CONTRACTOR shall not comment, edit or advise COUNTY with respect to such
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25 Third-Party content and data in any manner.
26 3. No Warranty or Endorsement. CONTRACTOR does not warrant any Third-Party
27 providers or any of their products or services, whether or not such products or
28 services are designated by CONTRACTOR as "certified," "validated," "premier"
and/or any other designation. CONTRACTOR does not endorse any sites on the
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1 Internet which are linked through the Services. CONTRACTOR is providing these
2 links to COUNTY only as a matter of convenience, and in no event shall
3 CONTRACTOR be responsible for any content, products, or other materials on or
4 available from such sites.
5 4. Additional Terms. The Disclaimer of Warranties (Section 8) and Limitation of
6 Liability (Section 8) set forth herein shall apply to all Third-Party interactions.
7 G. COMPLIANCE
8 CONTRACTOR shall comply with all applicable Federal, State, County, and City laws and
9 regulations regarding wages, hours, and working conditions.
10 H. SOFTWARE AS A SERVICE
11 CONTRACTOR grants to COUNTY, and COUNTY accepts, a subscription which provides
12 access and use of Energy Manager SaaS, which is subject to the terms and conditions set
13 forth in this Agreement, including Attachments A and B, and incorporated by this reference.
14 If there is any conflict between the terms of this Agreement and the terms in Attachment A
15 and B, the terms provided in Attachment A and B shall prevail.
16 CONTRACTOR shall provide to COUNTY Energy Manager Documentation relating
17 to the services, which shall consist of Help Documentation as provided on
18 CONTRACTOR's help website, and release notes which includes descriptions of additions,
19 changes, or fixes to the solution.
20 I. SUBSCRIPTION
21 Subject to the terms of this Agreement (including, without limitation, the responsibilities,
22 limitations and restrictions set forth in this Section 2(J), and payment of the Subscription
23 Fees required hereunder), CONTRACTOR shall permit COUNTY's Account Users to
24 access and use the Services during the Term, including access and use of all of the
25 Content contained in or made available through the Services. COUNTY agrees that it shall
26 use the Services solely for internal business purposes, and access and use of the Services
27 shall be limited to Account Users.
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1 J. ACCOUNT SETUP
2 To subscribe to the Services, COUNTY must establish its Account, which may only be
3 accessed and used by its Account Users. To set up an Account User, COUNTY must
4 provide CONTRACTOR and agree to maintain, promptly update and keep true, accurate,
5 current and complete information for such Account User. If COUNTY or any applicable
6 Account User provides any information that is untrue, inaccurate, not current, or
7 incomplete, CONTRACTOR has the right to immediately suspend or terminate COUNTY's
8 Account and usage of the Services, and refuse any and all future use. Each Account User
9 must establish and maintain a personal, non-transferable password, which shall not be
10
shared with, or used by, any other Third Party. COUNTY may not transfer an Account
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User's right to access and use the Services to a different user; provided, however, that a
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Named User's right to access and use a Named User Application may be reassigned to a
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new Named User replacing such Named User if such replaced Named User has
14
terminated his/her employment or his/her relationship with COUNTY, or otherwise changes
15
his/her job status or function within COUNTY and, as a result, no longer requires ongoing
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use of the applicable Named User Application. COUNTY shall be solely responsible for
17
any and all activities that occur under its Account, including all acts and omissions of its
18
19 Account Users. COUNTY shall notify CONTRACTOR immediately of any unauthorized use
20 of its Account and/or any other breach of security of the Services that it suspects or
21 becomes aware of.
22 K. COUNTY RESPONSIBILITIES
23 COUNTY shall: (i)take appropriate action to ensure that non-Account Users do not access
24 or use the Services; (ii) ensure that all Account Users comply with all of the terms and
25 conditions of this Agreement, including the limitations and restrictions set out in Section 14,
26 (J); (iii) be solely responsible for the accuracy, integrity, legality, reliability and
27 appropriateness of all COUNTY Data created by Account Users using the Services; (iv)
28 access and use the Services solely in compliance with the Documentation and all
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1 applicable local, state, federal, and foreign laws, rules, directives and regulations (including
2 those relating to export, homeland security, anti-terrorism, data protection and privacy); (v)
3 allow e-mail notifications generated by the Services on behalf of COUNTY's Account Users
4 to be delivered to COUNTY's Account Users; and (vi) promptly update and upgrade its
5 system as requested or required in order to ensure continued performance and
6 compatibility with upgrades to the Services. COUNTY shall be responsible for any breach
7 of this Agreement by Account Users and any access or Use of the Services by persons
8 other than Account Users.
9 L. ADDITIONAL GUIDELINES
10
CONTRACTOR reserves the right to establish or modify general practices and limits
11
concerning use of the Services, including without limitation, the maximum number of days
12
that COUNTY Data shall be retained by the Services and the maximum disk space that
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shall be allotted on CONTRACTOR servers on COUNTY's behalf. CONTRACTOR shall
14
provide at least sixty (60) days' prior notice of any such modification. CONTRACTOR also
15
reserves the right to block IP addresses originating a Denial of Service (DoS) attack or IP
16
addresses causing excessive amounts of data to be sent to CONTRACTOR servers.
17
CONTRACTOR shall notify COUNTY if this condition exists and inform COUNTY of its
18
19 action. Once blocked, an IP address shall not be able to access the Services, although the
20 block may be removed once CONTRACTOR is satisfied corrective action has taken place
to resolve the issue.
21
22 M. THIRD-PARTY SOFTWARE
23 The Services may incorporate and/or embed software and other technology owned and
24 controlled by Third Parties. Any such Third-Party software or technology that is
25 incorporated and/or embedded into any Service shall be provided to COUNTY on the
26 license terms set forth this Agreement, unless additional or separate license terms apply as
27 indicated by CONTRACTOR. To the extent that the Services link to any Third-Party
28 website, application or service, the terms and conditions thereof shall govern COUNTY's
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1 rights with respect to such website, application or service, unless otherwise expressly
2 provided CONTRACTOR. CONTRACTOR shall have no obligations or liability arising from
3 COUNTY's access and use of such linked Third-Party websites, applications and services.
4 SECTION 3. -- TERM
5 The term of this Agreement shall be for an initial period of three (3) years, commencing on
6 the Effective Date, through and including November 18, 2022 ("Term"). This Agreement may be
7 extended for one (1) additional consecutive twelve (12) month period upon written approval of both
8 COUNTY and CONTRACTOR, no later than thirty (30) days prior to the end of the initial Term.
9 COUNTY's Director of Internal Services/Chief Information Officer or his or her designee, is
10 authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR's
11 satisfactory performance.
12 SECTION 4. —COMPENSATION
13 COUNTY agrees to pay CONTRACTOR, and CONTRACTOR agrees to receive
14 compensation in accordance with the pricing provided in Attachment B. COUNTY shall, on or
15 before the commencement of Service subscription, pay to CONTRACTOR the Subscription
16 Fees identified in Attachment B for such Service subscription. CONTRACTOR's fees do not
17 include any taxes, levies, duties or similar governmental assessments of any nature, including,
18 for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction
19 whatsoever (collectively, "Taxes"). COUNTY is responsible for paying all Taxes associated with
20 its purchases hereunder. If CONTRACTOR has the legal obligation to pay or collect Taxes for
21 which COUNTY is responsible under this Agreement, CONTRACTOR shall invoice COUNTY,
22 and COUNTY shall pay that amount, unless COUNTY provides CONTRACTOR with a valid tax
23 exemption certificate authorized by the appropriate taxing authority. COUNTY agrees to
24 indemnify and hold CONTRACTOR harmless from any encumbrance, fine, penalty or other
25 expense that CONTRACTOR may incur as a result of COUNTY's failure to pay any Taxes
26 required hereunder. For clarity, CONTRACTOR is solely responsible for taxes assessable
27 against CONTRACTOR based on its income, property and employees.
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1 A. ENERGY MANAGER & PUBLIC DASHBOARDS
2 In no event shall the compensation payable for Energy Manager and Public Dashboards for
3 the initial three-year term exceed forty-four thousand, eight hundred and two dollars
4 ($44,802). In the event this Agreement is extended for a fouth year, in no event shall
5 compensation payable for Energy Manager and Public Dashboards exceed sixty-one
6 thousand, twenty-two dollars ($61,022)total. It is understood that all expenses incidental to
7 CONTRACTOR's performance of services under this Agreement shall be borne by
8 CONTRACTOR.
9 B. ADDITIONAL SERVICES
10 In no event shall the maximum compensation payable for Additional Services under this
11 Agreement exceed sixty-five thousand dollars ($65,000) over the entire potential four-year
12 term of this Agreement.
13 C. REIMBURSABLE EXPENSES
14 CONTRACTOR's Professional Service fees do not include travel, lodging or other
15 expenses incurred by CONTRACTOR unless specified on the Statement of Work.
16 COUNTY shall reimburse CONTRACTOR for all travel, lodging, incidentals and other out-
17 of-pocket expenses as they relate to the performance of Professional Services rendered by
18 CONTRACTOR when requested by COUNTY. In no event shall the maximum
19 compensation payable for Reimbursable Expenses under this Agreement exceed eight
20 thousand dollars ($8,000) over the entire potential four-year term of this Agreement.
21 D. TOTAL
22 In no event shall the maximum total compensation payable under this Agreement for all
23 services provided under this Agreement for the initial three-year term exceed one hundred
24 seventeen thousand and eight hundred two dollars ($117,802), and in the event this
25 Agreement is extended for a fourth year, in no event shall the total maximum compensation
26 payable exceed one hundred thirty-four thousand and twenty-two dollars ($134,022) over
27 the entire potential four-year term of this Agreement.
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1 SECTION 5. — INVOICING
2 CONTRACTOR shall submit invoices (which must reference the provided contract
3 number), either electronically, or via mail to the County of Fresno ISD, Accounts Payable, 333
4 W. Pontiac Way, Clovis, CA 93612 or Accounts Payable
5 (ISDBusinessOffice@FresnoCountyCA.gov). COUNTY will pay CONTRACTOR within forty-five
6 (45) days of receipt of an approved invoice.
7 SECTION 6. -- INDEPENDENT CONTRACTORS
8 In performance of the work, duties, and obligations assumed by CONTRACTOR under this
9 Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of
10 CONTRACTOR's officers, agents, subcontractors, and employees shall at all times be acting
11 and performing as independent contractors, and shall act in an independent capacity and not as
12 an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
13 Furthermore, COUNTY shall have no right to control or supervise or direct the manner or
14 method by which CONTRACTOR shall perform its work and function. However,
15 CONTRACTOR's methods must be compatible with COUNTY's standards, and must result in
16 satisfactory and timely completion of the work assigned, and the quality and quantity of work
17 produced must be acceptable to the COUNTY. COUNTY retains the right to verify that
18 CONTRACTOR is performing its obligations in accordance with this Agreement's terms and
19 conditions. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and
20 the rules and regulations, if any, of governmental authorities having jurisdiction over matters
21 covered by this Agreement.
22 Because of its status as an independent contractor, CONTRACTOR shall have absolutely
23 no right to employment rights and benefits available to COUNTY employees. CONTRACTOR
24 shall be solely liable and responsible for providing to, or on behalf of, their employees all legally
25 required employee benefits. In addition, CONTRACTOR shall be solely responsible, and shall
26 hold the COUNTY harmless from all matters relating to payment of CONTRACTORS'
27 employees, including compliance with Social Security withholding, and all other regulations
28 governing such matters. It is acknowledged that during the term of this Agreement,
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1 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this
2 Agreement.
3 SECTION 7. --TERMINATION OF AGREEMENT
4 This Agreement may be terminated for the following reasons:
5 A. NON-ALLOCATION OF FUNDS
6 The terms of this Agreement and any extensions, and the services to be provided, are
7 contingent on the approval of funds by the appropriating government agency. If sufficient
8 funds are not allocated, the services provided may be modified, or this Agreement
9 terminated without penalty at any time by giving CONTRACTOR thirty (30) days'
10 advance written notice.
11 B. CONTRACTOR BREACH OF CONTRACT
12 COUNTY may immediately suspend or terminate this Agreement in whole or in part,
13 where in the determination of the COUNTY there is:
14 1. A failure to comply with any term of this Agreement;
15 2. A substantially incorrect or incomplete report submitted to the COUNTY; or
16 3. Improperly performed services.
17 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of
18 any breach of this Agreement or any default which may then exist on the part of
19 CONTRACTOR. Such payment shall not impair or prejudice any remedy to the
20 COUNTY with respect to the breach or default. COUNTY shall have the right to demand
21 of CONTRACTOR the repayment to the COUNTY of any funds disbursed to the
22 CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not
23 expended in accordance with the terms of this Agreement. CONTRACTOR shall
24 promptly refund any such funds upon demand.
25 C. COUNTY'S BREACH OF CONTRACT
26 CONTRACTOR may terminate this Agreement prior to the expiration of the Term if
27 COUNTY commits a material breach of this Agreement and fails to cure such breach
28 within thirty (30) days after written notice of such breach is given by CONTRACTOR;
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1 provided that if the breach involves a failure of COUNTY to pay any of the fees required
2 under this Agreement, the cure period shall be reduced to ten (10) days. Without limiting
3 the foregoing, in the event of a breach that gives rise to the right by CONTRACTOR to
4 terminate this Agreement, CONTRACTOR may elect, as an interim measure, to
5 terminate one or more of COUNTY's Services subscriptions and/or suspend its
6 performance hereunder (including, without limitation, COUNTY's right to access and use
7 the Services and the Account) until the breach is cured. CONTRACTOR's exercise of its
8 right to elect any interim measure shall be without prejudice to CONTRACTOR's right to
9 terminate this Agreement upon written notice to COUNTY.
10 D. STOP PROVIDING SERVICE
11 CONTRACTOR may, upon 180 days' prior written notice to COUNTY, terminate
12 provision of a Service as a hosted offering. Upon such termination COUNTY may
13 request in writing and be granted a refund in an amount equal to: the Subscription Fee
14 prepaid by COUNTY for such Service for the one-year term during which such
15 termination is effective, multiplied by the number of full months remaining in the
16 applicable one-year term (determined based upon the effective date of termination of
17 such Service), divided by twelve.
18 E. WITHOUT CAUSE
19 Under circumstances other than those set forth above, this Agreement may be
20 terminated by COUNTY with ninety (90) days' advance written notice to CONTRACTOR
21 of an intention to terminate. In the event of such termination, COUNTY shall pay
22 CONTRACTOR for satisfactory services or supplies provided up until the date of
23 termination, and COUNTY shall not be subject to penalty for termination. The Director of
24 Internal Services/Chief Information Officer (CIO), is hereby authorized to provide such
25 notice of termination.
26
27
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1 F. EFFECT OF TERMINATION
2 Upon termination of this Agreement, (i) COUNTY's access and use of the Services shall
3 automatically cease, and (ii) CONTRACTOR shall have no obligation to maintain the
4 COUNTY Data or to forward the COUNTY Data to COUNTY or any Third-Party.
5 G. SURVIVAL. The following portions of this Agreement shall survive termination of this
6 Agreement and continue in full force and effect: Sections 14(J) Limitations and
7 Restrictions, Section 14(K), Proprietary Rights, Section 7(D) Stop Providing Service, and
8 Section (8) Disclaimer of Warranties, Limitation of Liability, Indemnification and Section 9
9 Confidential Information. Termination of this Agreement, or any of the obligations
10 hereunder, by either Party shall be in addition to any other legal or equitable remedies
11 available to such Party, except to the extent that remedies are otherwise limited
12 hereunder.
13 SECTION 8. -- INDEMNIFICATION
14 A. CONTRACTOR agrees to indemnify, and at COUNTY's request, defend, the COUNTY,
15 its officers, agents and employees, from any and all costs and expenses (including reasonable
16 attorney's fees and costs), claims, suits, liabilities, losses and damages occurring or resulting to
17 COUNTY caused by Contractor's negligent acts or omissions or willful misconduct in connection
18 with the performance, of this Agreement, by CONTRACTOR, its officers, agents or employees
19 under this Agreement and from any and all costs and expenses (including reasonable attorney's
20 fees and costs), damages, liabilities, claims and losses occurring or resulting in bodily injury,
21 including death, or property damage to any person, firm or corporation who may be injured or
22 damaged by the Contractor's negligent acts or omissions or willful misconduct in the
23 performance of this Agreement, of CONTRACTOR, its officers, agents, subcontractors,
24 assigns, or employees under this Agreement. The provision of this Section 8 shall survive the
25 termination of this Agreement.
26 B. CONTRACTOR shall also defend, indemnify, and hold harmless COUNTY from any loss,
27 damage or expense (including reasonable attorneys' fees) awarded by a court of competent
28 jurisdiction, or paid in accordance with a settlement agreement signed by COUNTY in
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1 connection with any Third-Party claim (each, a "Claim") alleging that COUNTY's use of the
2 Services as expressly permitted hereunder infringes upon any United States patent, copyright or
3 trademark of such Third Party, or misappropriates the trade secret of such Third Party; provided
4 that COUNTY (a) promptly gives CONTRACTOR written notice of the Claim; (b) gives
5 CONTRACTOR control of the defense and settlement of the Claim; and (c) provides to
6 CONTRACTOR all reasonable assistance, at CONTRACTOR's expense. If CONTRACTOR
7 receives information about an infringement or misappropriation claim related to the Services,
8 CONTRACTOR may in its sole discretion and at no cost to COUNTY: (i) modify the applicable
9 Service(s) so that it no longer infringes or misappropriates, (ii) obtain a license for COUNTY's
10 continued use of the applicable Service(s), or(iii)terminate the COUNTY's Account subscriptions
11 for the applicable Service(s) upon prior written notice and refund to COUNTY any prepaid
12 Subscription Fees covering the remainder of the term of the terminated Account subscriptions.
13 C. Notwithstanding the foregoing, CONTRACTOR shall have no liability or obligation with
14 respect to any Claim that is based upon or arises out of(a) use of the applicable Service(s) in
15 combination with any software or hardware not expressly authorized by CONTRACTOR, (b) any
16 modifications or configurations made to the applicable Service(s) by COUNTY without the prior
17 written consent of CONTRACTOR, and/or (c) any action taken by COUNTY relating to use of the
18 applicable Service(s)that is not permitted under the terms of this Agreement. This Section 8 states
19 COUNTY's exclusive remedy against CONTRACTOR for any Claim of infringement of
20 misappropriation of a Third-Party's Intellectual Property Rights related to or arising from COUNTY's
21 use of the Services.
22 D. Limitation Of Liability. IN NO EVENT SHALL CONTRACTOR, IN THE AGGREGATE,
23 BE LIABLE FOR DAMAGES TO COUNTY IN EXCESS OF THE AMOUNT OF SUBSCRIPTION
24 FEES PAID BY COUNTY TO CONTRACTOR PURSUANT TO THIS AGREEMENT DURING
25 THE TWELVE MONTHS PRIOR TO THE LAST ACT OR OMISSION GIVING RISE TO THE
26 LIABILITY. UNDER NO CIRCUMSTANCES SHALL CONTRACTOR OR ANY THIRD-PARTY
27 LICENSOR HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
28 AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL,
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1 EXEMPLARY, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF
2 CONTRACTOR OR THE APPLICABLE THIRD-PARTY LICENSOR HAS BEEN ADVISED OF
3 THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS
4 BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY
5 OR OTHERWISE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
6 OF THE ESENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION DOES NOT
7 APPLY TO INDEMNIFICATION CLAIMS, AS ADDRESSED IN SECTION 8A.
8 THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE TERMINATION OF THIS
9 AGREEMENT.
10 COUNTY AGREES THAT CONTRACTOR'S CRISIS MANAGER AND SAFETY CENTER
11 APPLICATIONS (COLLECTIVELY, "SAFETY APPS") IS A DOCUMENTATION TOOL ONLY,
12 AND THAT EACH OF THE SAFETY APPS IS NOT INTENDED TO PROVIDE EMERGENCY
13 SERVICES OR PROTOCOLS, PROCEDURES OR ACTION PLANS IN THE EVENT OF A
14 CRISIS OR EMERGENCY. COUNTY FURTHER AGREES THAT IT SHALL BE SOLELY
15 RESPONSIBLE FOR: (1) CREATING AND MAINTAINING ITS EMERGENCY ACTION PLAN
16 WITHIN EACH RESPECTIVE SAFETY APP, (2) ENSURING THAT COUNTY'S EMPLOYEES,
17 CONTRACTORS AND OTHER PERSONNEL ARE PROVIDED ACCESS TO ITS EMERGENCY
18 ACTION PLAN WITHIN THE SAFETY APPS, AND (3) CONTACTING (E.G., CALLING 911)
19 EMERGENCY SERVICES IN THE EVENT OF AN ACTUAL CRISIS OR EMERGENCY.
20 CONTRACTOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY AS A RESULT OF THIS
21 AGREEMENT AND/OR COUNTY'S USE OF THE SAFETY APPS FOR DECISIONS MADE OR
22 ACTIONS TAKEN OR NOT TAKEN IN THE EVENT OF A CRISIS OR EMERGENCY.
23 E. Disclaimer Of Warranties. CONTRACTOR AND ITS LICENSORS MAKE NO
24 REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS,
25 QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE
26 SERVICES OR ANY CONTENT.CONTRACTOR AND ITS LICENSORS DO NOT REPRESENT
27 OR WARRANT THAT: (1) THE USE OF THE SERVICES SHALL BE SECURE, TIMELY,
28 UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER
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1 HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES SHALL MEET YOUR
2 REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA SHALL BE ACCURATE OR
3 RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER
4 MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES SHALL MEET
5 YOUR REQUIREMENTS OR EXPECTATIONS; (V) ERRORS OR DEFECTS SHALL BE
6 CORRECTED; (VI) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES
7 AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES
8 AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS-IS" BASIS. ALL
9 CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
10 STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
11 WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NOW
12 INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM
13 EXTENT PERMITTED BY APPLICABLE LAW BY DSI AND ITS LICENSORS.
14
SECTION 9. --CONFIDENTIALITY
15
A. PROTECTION OF CONFIDENTIAL INFORMATION
16
The Receiving Party agrees that it shall (i) hold theDisclosing Party's Confidential
17
Information in strict confidence, and shall use the same degree of care in protecting the
18
confidentiality of the Disclosing Party's Confidential Information that it uses to protect its
19
own Confidential Information, but in no event less than reasonable care, (ii) not use the
20
Confidential Information of the Disclosing Party for any purpose not permitted by this
21
Agreement; (iii) not copy any part of the Disclosing Party's Confidential Information except
22
as expressly permitted by this Agreement, (iv) limit access to the Confidential Information
23
of the Disclosing Party to those of its employees, contractors and agents who need such
24
access for purposes consistent with this Agreement and who have signed confidentiality
25
agreements with the Receiving Party containing protections no less stringent than those
26 herein.
27
B. COMPELLED DISCLOSURE
28
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is
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1 compelled by law to do so, provided Receiving Party gives Disclosing Party prior notice of
2 such compelled disclosure (to the extent legally permitted), and reasonable assistance, at
3 the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the
4 Receiving Party is compelled by law to disclose the Disclosing Party's Confidential
5 Information as part of a civil proceeding to which the Disclosing Party is a party, and the
6 Disclosing Party is not contesting the disclosure, Disclosing Party shall reimburse the
7 Receiving Party for its reasonable cost of compiling and providing secure access to such
8 Confidential Information.
9 C. REMEDIES
10 Recipient acknowledges that Disclosing Party would have no adequate remedy at law
11 should Receiving Party breach its obligations relating to Confidential Information, and
12 agrees that Dislcosing Party shall be entitled to enforce its rights by obtaining appropriate
13 equitable relief, including without limitation a temporary restraining order and an injunction.
14
SECTION 10. -- INSURANCE
15
Without limiting COUNTY's right to obtain indemnification from CONTRACTOR or any
16
17 third parties, each CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
18 following insurance policies throughout the term of this Agreement:
A. COMMERCIAL GENERAL LIABILITY
19
Commercial General Liability Insurance with limits of not less than One Million Dollars
20
21 ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
22 ($2,000,000). This policy shall be issued on a per occurrence basis. Upon mutual
23 agreement with Contractor and at any added cost, COUNTY may require specific
24 coverages including completed operations, products liability, contractual liability,
25 Explosion-Collapse-Underground, fire legal liability or any other liability insurance
26 deemed necessary because of the nature of this contract.
B. UMBRELLA INSURANCE.Umbrella insurance with limits of not less than Five Million
27
28 ($5,000,000) each occurrence and Five Million ($5,000,000) in the aggregate. Umbrella
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1 insurance may be used to achieve the minimum liability limits because it is endorsed to
2 state it is "As Broad as Primary Policy."
3 C. AUTOMOBILE LIABILITY
4 Comprehensive Automobile Liability Insurance with limits of not less than One Million
5 Dollars ($1,000,000.00) per accident for bodily injury and for property damages.
6 Coverage should include hired autos and non-owned autos used in connection with this
7 Agreement.
8 D. PROFESSIONAL LIABILITY
9 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
10 M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less
11 than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars
12 ($3,000,000.00) annual aggregate.
13 E. WORKER'S COMPENSATION
14 A policy of Worker's Compensation insurance as may be required by the California
15 Labor Code.
16 F. CYBER LIABILITY
17 Cyber liability insurance with limits of not less than Two Million Dollars ($2,000,000.00)
18 per occurrence. Coverage shall include, but not be limited to, any and all claims,
19 damages, costs, fees, regulatory fines and penalties, or forms of legal action involving
20 Cyber Risks. The cyber liability policy shall be endorsed to cover the full replacement
21 value of, damage to, alteration of, loss of, theft of, ransom of, or destruction of intangible
22 property (including but not limited to information or data) that is in the care, custody, or
23 control of CONTRACTOR.
24 For purposes of the technology professional liability insurance and the cyber liability
25 insurance required under this Agreement, Cyber Risks include, but are not limited to, (i) security
26 breaches, which include disclosure of, whether intentional or unintentional, information provided
27 by COUNTY, information provided by or obtained from any person, or personal-identifying
28 information relating to any person, to an unauthorized third party; (ii) breach of any of
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1 CONTRACTOR's obligations under this Agreement relating to data security, protection,
2 preservation, usage, storage, transmission, and the like; (iii) infringement of intellectual property
3 including, but not limited to, infringement of copyright, trademark, and trade dress; (iv) invasion
4 of privacy, including any release of private information; (v) information theft by any person or
5 entity, whatsoever; (vi) damage to or destruction or alteration of electronic information; (vii)
6 extortion related to CONTRACTOR's obligations under this Agreement regarding electronic
7 information, including information provided by COUNTY, information provided by or obtained
8 from any person, or personal-identifying information relating to any person; (viii) network
9 security; (ix) data breach response costs, including security breach response costs; (x)
10 regulatory fines and penalties related to CONTRACTOR's obligations under this Agreement
11 regarding electronic information; and (xi) credit monitoring expenses.
12 CONTRACTOR shall obtain endorsements to the Commercial General Liability
13 insurance include the County of Fresno, its officers, agents, and employees, individually and
14 collectively, as additional insured, but only insofar as the operations under this Agreement are
15 concerned. Such coverage for additional insured shall apply as primary insurance and any
16 other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees
17 shall be excess only and not contributing with insurance provided under CONTRACTOR's
18 policies herein. This insurance shall not be cancelled or changed without a minimum of thirty
19 (30) days advance written notice given to COUNTY.
20 CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents,
21 and employees any amounts paid by the policy of worker's compensation insurance required by
22 this Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy
23 that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR's waiver
24 of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an
25 endorsement.
26 Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
27 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all
28 of the foregoing policies, as required herein, to the County of Fresno, Chief Information Officer,
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1 333 W. Pontiac Way, Clovis, CA 93612, stating that such insurance coverages have been
2 obtained and are in full force; that the County of Fresno, its officers, agents and employees will
3 not be responsible for any premiums on the policies; that for such worker's compensation
4 insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers,
5 agents, and employees any amounts paid under the insurance policy and that waiver does not
6 invalidate the insurance policy; that such Commercial General Liability insurance names the
7 County of Fresno, its officers, agents and employees, individually and collectively, as additional
8 insured, but only insofar as the operations under this Agreement are concerned; that such
9 coverage for additional insured shall apply as primary insurance and any other insurance, or
10 self-insurance, maintained by COUNTY, its officers, agents and employees, shall be excess
11 only and not contributing with insurance provided under CONTRACTOR's policies herein; and
12 that this insurance shall not be cancelled or changed without a minimum of thirty (30) days
13 advance, written notice given to COUNTY.
14 In the event CONTRACTOR fails to keep in effect at all times all required insurance
15 coverages, COUNTY may, in addition to other remedies it may have, suspend or terminate this
16 Agreement upon the occurrence of such event.
17 All policies shall be issued by admitted insurers licensed to do business in the State of
18 California, and such insurance shall be purchased from companies possessing a current A.M.
19 Best, Inc. rating of A FSC VII or better.
20 SECTION 11. — MODIFICATION OF SERVICES
21 The CIO reserves the right at any time during the term of this Agreement to add and/or
22 remove Add-On Modules to annual software subscription, as described and priced in
23 Attachment B, Pricing. COUNTY understands that any additions and removals will affect the
24 compensation paid to CONTRACTOR.
25 This Agreement may be modified from time to time by the written consent of all the parties
26 without, in any way, affecting the remainder.
27
28
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1 SECTION 12. —ASSIGNMENT
2 CONTRACTOR shall not assign, transfer or sub-contract this Agreement or any of its
3 respective rights or duties hereunder, without the prior written consent of the COUNTY.
4 CONTRACTOR shall have the full ability to transfer or assign this Agreement to the surviving
5 entity in a merger or consolidation or to a purchaser of all or substantially all of the assets of a
6 party. CONTRACTOR must notify COUNTY of such transfer or assignment within thirty (30)
7 days.
8 SECTION 13. --AUDITS AND INSPECTIONS
9 CONTRACTOR shall at any time during business hours, and as often as the COUNTY
10 may deem necessary, make available to the COUNTY for examination all of its records and
11 data with respect to the matters covered by this Agreement. CONTRACTOR shall, upon request
12 by the COUNTY, permit the COUNTY to audit and inspect all of such records and data
13 necessary to ensure CONTRACTORS' compliance with the terms of this Agreement. If this
14 Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the
15 examination and audit of the California State Auditor for a period of three (3) years after final
16 payment under contract (Government Code Section 8546.7).
17 SECTION 14. — MISCELLANEOUS
18 A. AUTHORITY
19 COUNTY and CONTRACTOR represent and warrant that: (i) they have full right, title and
20 authority to enter into this Agreement; and (ii)this Agreement constitutes a legal, valid and
21 binding obligation of COUNTY, enforceable against it in accordance with its terms.
22 B. ACCEPTANCE OF PRIVACY POLICY
23 All data and information provided by COUNTY through its use of the Services is subject
24 to the Privacy Policy. By using the Services, COUNTY accepts and agrees to be bound
25 and abide by the Privacy Policy.
26 C. WAIVER
27 No failure or delay by either Party in enforcing any of its rights under this Agreement shall
28 be construed as a waiver of the right to subsequently enforce any of its rights, whether
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1 relating to the same or a subsequent matter.
2 D. FORCE MAJEURE
3 Subject to the limitations set forth below and except with respect to any payment
4 obligations of COUNTY, neither Party shall be held responsible for any delay or default,
5 including any damages arising therefrom, due to any act of God, act of governmental entity
6 or military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war,
7 sabotage, unavailability of or interruption or delay in telecommunications or Third-Party
8 services, failure of Third-Party software, insurrections, or any other similar event that is
9 beyond the reasonable control of such party (each, a "Force Majeure Event"). The
10 occurrence of a Force Majeure Event shall not excuse the performance by a Party unless
11 that Party promptly notifies the other Party of the Force Majeure Event, and promptly uses
12 its best efforts to provide substitute performance or otherwise mitigate the force majeure
13 condition.
14 E. INTERPRETATION OF AGREEMENT
15 The section headings contained in this Agreement are solely for the purpose of reference,
16 are not part of the agreement of the parties, and shall not affect in any way the meaning
17 or interpretation of this Agreement. Any reference to any federal, state, local or foreign
18 statute or law shall be deemed to refer to all rules and regulations promulgated thereunder,
19 unless the context requires otherwise.
20 F. NO THIRD-PARTY BENEFICIARIES
21 No person or entity not a party to this Agreement shall be deemed to be a Third-Party
22 beneficiary of this Agreement or any provision hereof.
23 G. SEVERABILITY
24 The invalidity of any portion of this Agreement shall not invalidate any other portion of this
25 Agreement and, except for such invalid portion, this Agreement shall remain in full force
26 and effect.
27 H. EXPORT COMPLIANCE
28 The Services, other technology CONTRACTOR may make available, and derivatives
-25-
1 thereof may be subject to export laws and regulations of the United States and other
2 jurisdictions. COUNTY shall not export or re-export the Services in any form without first
3 obtaining the appropriate United States and foreign government approvals. Each Party
4 represents that it is not named on any U.S. government denied-party list. COUNTY shall
5 not permit Account Users to access or use the Services in a U.S.-embargoed country or
6 in violation of any U.S. export law or regulation.
7 I. COOPERATIVE USE
8 With COUNTY's approval, the market research conducted by COUNTY during its
9 selection process for the Services may be extended for use by other jurisdictions,
10 municipalities, and government agencies of COUNTY's state. Any such usage by other
11 entities must be in accordance with ordinance, charter, and/or procurement rules and
12 regulations of the respective political entity.
13 J. LIMITATIONS AND RESTRICTIONS
14 COUNTY agrees that it shall not, and shall not permit any Third Party to, directly or
15 indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create
16 derivative works or attempt to derive the source code of any Service; (ii) assign, transfer,
17 lease, rent, sublicense, distribute or otherwise make available any Service, in whole or in
18 part, to any Third Party, including on a timesharing, software-as-a-service or other similar
19 basis; (iii) share Account login information or otherwise allow access or use the Services
20 to provide any service bureau services or any services on a similar basis; (iv) use any
21 Service in a way not intended by CONTRACTOR, as defined by this Agreement, or for
22 any unlawful purpose; (v) use any Service to store or transmit infringing, libelous, or
23 otherwise unlawful or tortious material, or to store or transmit material in violation of Third-
24 Party privacy rights; (vi) copy, frame or mirror any part or content of the Services, other
25 than copying or framing on COUNTY's own intranets or otherwise for COUNTY's own
26 internal business purposes; (vii) attempt to tamper with, alter, disable, hinder, by-pass,
27 override, or circumvent any security, reliability, integrity, accounting or other mechanism,
28 restriction or requirement of the Services; (viii) remove, obscure, cover or alter any
-26-
1 copyright, trademark, patent or proprietary notice affixed or displayed by or in the Services
2 or related documentation; (ix) perform load tests, network scans, penetration tests, ethical
3 hacks or any other security auditing procedures on the Services; (x) interfere with or
4 disrupt the integrity or performance of the Services or the data contained therein; (xi)
5 access any Service in order to build a competitive product or service, copy any features,
6 functions or graphics of any Service or monitor the availability and/or functionality of any
7 Service for any benchmarking or competitive purposes; (xii) store, manipulate, analyze,
8 reformat, print, and display the Content for personal use; (xiii) upload or insert code,
9 scripts, batch files or any other form of scripting or coding into the Services; and (xiv) store
10 Highly-Sensitive Personal Information. Highly-Sensitive Personal Information should not
11 be entered into the Services, as there are no data fields requesting this type of information.
12 It is the COUNTY's responsibility to enforce this policy for fields beyond CONTRACTOR's
13 control, such as a description or notes field. CONTRACTOR reserves the right in the
14 future to scan input data and block certain information such as social security numbers or
15 credit card numbers.
16 Additional Guidelines. CONTRACTOR also reserves the right to block IP addresses
17 originating a Denial of Service (DoS) attack, or IP addresses causing excessive amounts
18 of data to be sent to CONTRACTOR servers. CONTRACTOR shall notify COUNTY should
19 this condition exist, and inform COUNTY of its action. Once blocked, an IP address shall
20 not be able to access the Services, and the block may be removed once CONTRACTOR
21 is satisfied corrective action has taken place to resolve the issue.
22 Security Emergencies. If CONTRACTOR reasonably determines that the security of its
23 Services or infrastructure may be compromised due to hacking attempts, denial of service
24 attacks, or other malicious activities, CONTRACTOR may temporarily suspend the
25 Services and CONTRACTOR will take action to promptly resolve any security issues.
26 CONTRACTOR will notify COUNTY of any suspension or other action taken for security
27 reasons.
28
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1 K. PROPRIETARY RIGHTS
2 COUNTY acknowledges and agrees that (as between COUNTY and CONTRACTOR)
3 CONTRACTOR retains all ownership right, title, and interest in and to the Applications,
4 the Services, the Documentation and the Content, including without limitation all
5 corrections, enhancements, improvements to, or derivative works thereof (collectively,
6 "Derivative Works"), and in all Intellectual Property Rights therein or thereto. To the extent
7 any Derivative Work is developed by CONTRACTOR based upon ideas or suggestions
8 submitted by COUNTY to CONTRACTOR, COUNTY hereby irrevocably assigns all rights
9 to modify or enhance the Applications and the Services using such ideas or suggestions
10 or joint contributions to CONTRACTOR, together with all Intellectual Property Rights
11 related to such Derivative Works. Nothing contained in this Agreement shall be construed
12 to convey to COUNTY (or to any party claiming through COUNTY) any Intellectual
13 Property Rights in or to the Applications, the Services, the Documentation and the
14 Content, other than the rights expressly set forth in this Agreement.
15 CONTRACTOR acknowledges and agrees that (as between COUNTY and
16 CONTRACTOR) COUNTY retains all ownership right, title, and interest in and to the
17 COUNTY Data, including all Intellectual Property Rights therein or thereto.
18 Notwithstanding the foregoing, COUNTY hereby grants CONTRACTOR a non-exclusive,
19 royalty-free license to display, distribute, transmit, publish and otherwise use the COUNTY
20 Data to improve the Services and the performance of CONTRACTOR, including without
21 limitation, submitting and sublicensing the COUNTY Data to Third Parties for analytical
22 purposes, provided that (i) such Third Parties have entered into a written agreement with
23 CONTRACTOR to maintain the confidentiality of the COUNTY Data and (ii)
24 CONTRACTOR shall not specifically identify the COUNTY Data as originating from
25 COUNTY when providing the COUNTY Data to such Third Parties.
26 COUNTY acknowledges the Services may utilize Third-Party software and/or tools
27 (each, a "Third-Party Tool") under a license granted to CONTRACTOR by one or more
28 applicable Third Parties (each, a "Third-Party Licensor"), which licenses CONTACTOR
-28-
1 the right to sublicense the use of the Third-Party Tool solely as part of the Services. Each
2 such sublicense is nonexclusive and solely for COUNTY's internal use and COUNTY shall
3 not further resell, re-license, or grant any other rights to use such sublicense to any Third
4 Party. COUNTY further acknowledges that each Third-Party Licensor retains all right, title,
5 and interest to its applicable Third-Party Tool and all documentation related to such Third-
6 Party Tool. All confidential or proprietary information of each Third-Party Licensor is
7 Confidential Information of CONTRACTOR under the terms of this Agreement, and shall
8 be protected in accordance with the terms of Section 9.
9 L. Children Under the Age of 13. Websites and/or online applications and services
10 that are collecting information from children under the age of 13 are required to comply with
11 Federal Trade Commission (FTC) Children's Online Privacy Protection Act (COPPA). COUNTY
12 shall not submit, and shall ensure that its Account Users shall not submit, any information from
13 children under the age of 13. CONTRACTOR does not knowingly collect personal information
14 from children under 13. If COUNTY believes CONTRACTOR might have any information from or
15 about a child under 13, please contact CONTRACTOR at: notice@dudesolutions.com or by mail
16 at the following address: Dude Solutions, Inc., 11000 Regency Parkway, Suite 110, Cary, NC
17 27518 Attn: Operations. If CONTRACTOR learns it has collected or received personal
18 information for a child under 13 without verification of parental consent, CONTRACTOR shall
19 delete such information.
20 SECTION 15. -- NOTICES
21 The persons and their addresses having authority to give and receive written notices under this
22 Agreement include the following:
23
24 COUNTY: CONTRACTOR:
25 Director of Internal Kelly Caputo
Services/Chief Information General Counsel
26 Officer Dude Solutions, Inc.
333 W. Pontiac Way 11000 Regency Parkway, # 110
27 Clovis, CA 93612 Cary, North Carolina 27518
(559) 600-6200 Attn: Legal Department
28 notice dudesolutions.com
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1 877 868-3833
2 All notices between the COUNTY and the CONTRACTOR provided for or permitted under
3 this Agreement must be in writing and delivered either by personal service, by first-class
4 United States mail, by an overnight commercial courier service, or by email transmission. A
5 notice delivered by personal service is effective upon service to the recipient. A notice
6 delivered by first-class United States mail is effective three COUNTY business days after
7 deposit in the United States mail, postage prepaid, addressed to the recipient. A notice
8 delivered by an overnight commercial courier service is effective one COUNTY business day
9 after deposit with the overnight commercial courier service, delivery fees prepaid, with
10 delivery instructions given for next day delivery, addressed to the recipient. . For all claims
11 arising out of or related to this Agreement, nothing in this section establishes, waives, or
12 modifies any claims presentation requirements or procedures provided by law, including but
13 not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
14 beginning with section 810).
15 SECTION 16. — LEGAL AUTHORITY
16 Individual(s) executing this Agreement on behalf of CONTRACTOR hereby covenants,
17 warrants, and represents: (i) that he or she is duly authorized to execute or attest and deliver
18 this Agreement on behalf of such entity, e.g. (without limitation), corporation, limited liability
19 company, limited partnership, partnership or sole proprietorship, in accordance with all
20 applicable formalities and under California law; (ii) that this Agreement is binding on such entity;
21 and (iii) that CONTRACTOR (as applicable) is a duly organized and legally existing corporation,
22 limited liability company, limited partnership, partnership or sole proprietorship in good standing
23 in the State of California.
24 SECTION 17. -- GOVERNING LAW
25 Venue for any action arising out of or relating to this Agreement shall only be in Fresno
26 County, California.
27 The rights and obligations of the parties and all interpretation and performance of this
28 Agreement shall be governed in all respects by the laws of the State of California.
-30-
1 SECTION 18. -- DISCLOSURE OF SELF-DEALING TRANSACTIONS
2 This provision is only applicable if the CONTRACTOR is operating as a corporation (a
3 for-profit or non-profit corporation) or if during the term of this Agreement, the CONTRACTOR
4 changes its status to operate as a corporation.
5 Members of CONTRACTOR's Board of Directors shall disclose any self-dealing
6 transactions that they are a party to while CONTRACTOR is providing goods or performing
7 services under this Master Agreement. A self-dealing transaction shall mean a transaction to
8 which the CONTRACTOR is a party and in which one or more of its directors has a material
9 financial interest. Members of CONTRACTOR'S Board of Directors shall disclose any self-
10 dealing transactions that they are a party to by completing and signing a Self-Dealing
11 Transaction Disclosure Form (Attachment C) and submitting it to the COUNTY prior to
12 commencing with the self-dealing transaction or immediately thereafter.
13 SECTION 19. -- ENTIRE AGREEMENT
14 This Agreement, along with its attachments incorporated herein, constitutes the entire
15 Agreement between CONTRACTOR and COUNTY with respect to the subject matter hereof
16 and supersedes all previous Agreement negotiations, proposals, commitments, writings,
17 advertisements, publications, and understandings of any nature whatsoever unless expressly
18 included in this Agreement.
19
20
21
22
23
24
25
26
27
28
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I IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
2 Effective Date.
3
4 CONTRACTOR COUNTY OFFRESNO
5 >
Karen aggener, of Financial Officer Nathan Magsig, Chairman of the Board
6 of Supervisors of the County of Fresno
Date
8
9 ATTEST:
10
11 By:
Bernice E. Seidel
12 Clerk of the Board o upervisors
County of Fresno, State of California
13
Org No.: 81905
14 Account No.: 7309
Fund: 10LO
15 Subclass: 10000
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 ATTACHMENT A— SCOPE OF WORK REQUIREMENTS
2 The following states the specifications for the services provided by CONTRACTOR
3 under this Agreement.
4 I. GENERAL
5
Database capacity that can manage more than 1,500 utility accounts.
6
Consumption and meter readings available for entire account history.
7
Store load information such as heating type, square footage, water heater type, etc.
8
Establish and maintain new buildings and facilities.
9
Capture all data related to a meter (dials, type, class, etc.)
10
Create custom line items that correlate to the various line items on utility bills, custom
11
"Production Metrics" for client specific KPI reporting, and two custom commodities for
12
tracking consumption on non-standard utility commodities.
13
Generate a unique vendor number for all vendors in the system.
14
Designate vendor transactions to pay separately (versus batched).
15
Run exportable reports to show all or part of a vendor invoice and associated data.
16
Add vendors within the system and associate vendor by utility (vendor management).
17
Provide customers a "read only" user login.
18
Online review of expense by account number, date, project, or vendor, etc.
19
Validate vendor name input through use of drop downs or other edits.
20
Provide exported lists, that can be filtered and sorted, of all invoices to be paid for the user
21
defined rate range in user defined order (include invoice number, invoice date, vendor
22
number, vendor name, and invoice amount).Energy Manager will not maintain this list online
23
in the database.
24
Identify outage area within system from notices received from vendor and allow
25
announcements of vendor outage to be posted on the dashboard..Energy Manager does not
26
maintain a message portal within the system.
27
On-demand access to system with information able to be changed and reviewed in real
28 time.
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1 Export data into common desktop tools such as Excel and PDF.
2
3 II. INTERFACE
4 Receive data imports from automated meter reading systems via .csv upload or manual
5 entry as often as desired.
6 Upload data from utility providers (from vendor invoice).
7 Create an exportable accounts payable file for ERP solution with invoices being associated
8 with a unique identifier, such as GL code. Energy Manager does not create "out-of-the-box"
9 payment vouchers or journal vouchers.
10 Intake of Electronic Data Interface (EDI).
11 Create exportable Accounts Payable file for ERP solution-based invoices associated with a
12 unique identifier, such as GL code.
13 Track, allocate, and create reports based on specified line items of an invoice when
the unique identifier refers to a consolidated bill or summary bill.
14
15 Set up master accounts and allocate to buildings based on fixed percentages or sub-meter
readings.
16 Sub-meter readings can be hand-keyed or imported into Energy Manager.
17
18 III. BILLING
19 Include all utilities in an exportable report for invoicing.
20 Create custom line items to duplicate exact charges and line item names on a customer's
21 bill without requiring an image file.
22 Configure charges based on usage or a percentage of electric amount.
23 Create custom line item (overhead) where a percent can be added. System will not
24 automatically calculate.
25 Accommodate a pre-billing review process.
26 Run exportable reports to provide data for all or part of a vendor invoice and associated
27 data. Energy Manager does not create or maintain vouchers in the system.
28 Expand to accept data from other utilities such as water providers.
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1
2 IV. SECURITY
3 Support role-based security (e.g. user log-in associated with system functionality such as
4 reporting, viewing, account management, etc).
5
6 V. SAVINGS
7 Create and manage special event checklist and/or shutdown procedures.
8 Create O and M tickets to track energy maintenance issues.
g Create capital projects to track and measure against actual usage.
10
11 VI. REPORTING
12 Configure dashboard to provide key productivity indicators and allow drill-down.
13 View customer data historically.
14 Run reports on financial codes (org, account, fund, subclass, program numbers),
15 (department name, building number, site ID, building address, meter number, meter type,
16 invoice number).
17 Provide summary bill of a customer's accounts.
18 Search on a unique customer identification.
19 Duplicate reporting filters to all reports during an end-user session.
20 Add a custom report to the `report' menu without vendor intervention.
21 Create Ad-hoc reports through supplied report generation tool.
22 Control reports through system security.
23 Generate automated reports based on a calendar event and email the report.
24 Support the upload of data dictionary or other similar.
25 Benchmark Energy STAR reporting and compliance and customized reporting (including
26 Excel, PDF, Word, PowerPoint, TIFF, CSV, and XLSX formal exports).
27 Use IMPVP standards, measure and verify use cost savings while taking weather and
28 relevant factors into account.
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1 Toggle on or off, by account, billing graphs, degree-day charts, and optional invoice
2 presentment.
3 Configurable views, reports, searches, and graphs.
4 Report on use/cost, carbon emissions, budget data, avoided cost, and weather.
5 Build custom reports based on utility bill information, use and cost rankings, and historical
6 use/cost.
7 Reference/view customer billing history.
8 Export filterable reports on amount charged.
9
10
11
12
13
14
15
16
17
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19
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1 ATTACHMENT B — PRICING
2 COUNTY will have a subscription to Energy Manager SaaS for a minimum of 401
3 accounts, and a maximum of 500. One "Account" can also be 1 utility bill, sub-meter or virtual
4 meter. Periodic upgrades, at CONTRACTOR's discretion, are no cost.
5 COUNTY will pay the following fixed costs in accordance with the provisions of this Agreement:
6 I. SCHEDULED COST FOR POTENTIAL 4-YEAR TERM NOT EXCEED $ 61,022
7
8 Item Description Year 1 Year 2 Year 3 Optional Year
9 4
10 Software Energy $13,246.76 $13,246.76 $13,909.10 $14,604.56
11 Manager
12 Other Public $1,418.00 $1,418.00 $1,563.35 $1,614.52
13 Dashboar
14 ds
15 Subtotal= $14,664.76 $14,664.76 $15,472.45 $16,219.08
16 Total= $61,022
17
18 II. ADDITIONAL SERVICES FOR POTENTIAL 4-YEAR TERM NOT EXCEED $65,000
19
20 Add-On Modules*
21 # Item Description Unit Cost
22 1. Utility Bill Population (UBP) Annual $31,500
23 2. Utility Bill Population & Management Annual $63,000
24 (UBPM)
25 3. Interval Data Recording: includes "real Per
26 time" readings, 15-minute interval data meter $40/advanced
27 showing consumption each day, and ability meters/smart-meters
28
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1 to respond to unnecessary usage spikes
2 and wasted energy as they are happening.
3 4. Interval Data Recording & Management: Per
4 review imported data to identify issues meter $80/advanced
5 from utility providers or data accumulation meters/smart-meters
6 devices; remedy bad data or retrieve
7 missing data; use historical IDR data to
8 estimate issues such as spikes, zeroes,
9 flat lines, etc., and validate and transfer
10 data for County.
11 *Additonal Services pricing not guaranteed for life of contract and subject to the then-
12 current pricing at time services are added.
13
III. TOTAL FOR POTENTIAL 4-YEAR TERM NOT TO EXCEED $134,022
14
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1 ATTACHMENT C - SELF-DEALING TRANSACTION DISCLOSURE FORM
2 In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
3 members of a contractor's board of directors (hereinafter referred to as "County Contractor"),
must disclose any self-dealing transactions that they are a party to while providing goods,
4 performing services, or both for the County. A self-dealing transaction is defined below:
5 "A self-dealing transaction means a transaction to which the corporation is a party and in which
one or more of its directors has a material financial interest"
6 The definition above will be utilized for purposes of completing this disclosure form.
7 INSTRUCTIONS
8
g (1) Enter board member's name, job title (if applicable), and date this disclosure is being
10 made.
11 (2) Enter the board member's company/agency name and address.
12 (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
13 the County. At a minimum, include a description of the following:
14 a. The name of the agency/company with which the corporation has the
15 transaction; and
16 b. The nature of the material financial interest in the Corporation's transaction that
17 the board member has.
18 (4) Describe in detail why the self-dealing transaction is appropriate based on applicable
19 provisions of the Corporations Code.
20 (5) Form must be signed by the board member that is involved in the self-dealing
21 transaction described in Sections (3) and (4).
22
23
24
25
26
27
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1 (1)Company Board Member Information:
2 Date:
3
4 (2)Company/Agency Name and Address:
5
6
7
8
9 (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to):
10
11
12
13
14
15
16
17
18
19 (4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
(a):
20
21
22
23
24
25
26 (5)Authorized Signature
27 Signature: Date:
28
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