HomeMy WebLinkAboutAgreement A-19-589 with Dude Solutions, Inc..pdf-1-
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AGREEMENT
This Agreement (“Agreement”) is made and entered into this _____ day of __________,
2019 (“Effective Date”), by and between the County of Fresno, a political subdivision of the
State of California ("COUNTY"), and Dude Solutions, Inc., (together with its direct and indirect
subsidiaries, collectively, “CONTRACTOR”), a Delaware corporation (“CONTRACTOR”).
COUNTY and CONTRACTOR may be referred to as a “Party” or collectively as “Parties” to th is
Agreement.
RECITALS
WHEREAS, COUNTY desires to purchase Software as a Service (“SaaS”) of Energy
Manager software as a service (SaaS) from CONTRACTOR for energy management software for
utility tracking and energy savings;
WHEREAS, Energy Manager software SaaS is software that will allow COUNTY the ability
to improve utility bill visibility, consumption, and savings;
WHEREAS, CONTRACTOR represents to COUNTY that the SaaS subscription, and
subscription of Energy Manager SaaS provided by CONTRACTOR, along with professional
services from CONTRACTOR, would meet the stated needs of the COUNTY, including
streamlining and improving COUNTY’s utility bill workflow process; and
WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the
purchase of the subscription of the Energy Manager SaaS.
NOW, THEREFORE, for and in consideration of the promises herein, and for other good
and valuable consideration, the Parties agree as follows:
WITNESSETH
SECTION 1. – DEFINITIONS
1.1 “Account” means COUNTY’s specific account where COUNTY subscribes
to access and uses Service(s).
1.2 “Account User” means: (i) with respect to an Enterprise Application, as
defined in Section 1.8, herein, each employee, consultant and contractor specified by
COUNTY to access and use the COUNTY’s Account; and (ii) with respect to a Named
19th November
Agreement No. 19-589
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User Application, each unique Named User for which COUNTY has paid an applicable
subscription fee to CONTRACTOR for such Named User Application.
1.3 “Applications” means the SaaS enterprise asset management applications
designed, developed, marketed and made available by CONTRACTOR, which include,
without limitation, the following functionality: enterprise workflow, communication, content
and business process logic for facilities, technology, business operations, facility
scheduling, building automation, safety planning, crisis management, geographic
information systems, energy and transportation management.
1.4 “Confidential Information” means any non-public information and/or
materials disclosed in writing or orally by a Party under this Agreement (the “Disclosing
Party”) to the other Party (the “Receiving Party”), which (i) is designated in writing as
confidential at the time of disclosure, or (ii) with respect to non-public information disclosed
orally, the Disclosing Party sends the Receiving Party a written notice to Receiving Party
within 15 days after oral disclosure identifying the non-public information that was
disclosed as its confidential information, including when, where, how and to whom such
non-public information was disclosed. For avoidance of doubt, CONTRACTOR’s
Confidential Information shall include the source code, data structure, algorithms and logic
of the Applications and Services. Notwithstanding the foregoing, Confidential Information
shall not include any information that (i) is or becomes generally known to the public
without breach of any obligation owed to the Disclosing Party, (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party, (iii) is received from a Third Party without breach
of any obligation owed to the Disclosing Party, or (iv) was independently developed by the
Receiving Party.
1.5 “Content” means all audio and visual information, documents, content,
materials, products and/or software contained in, or made available through Services.
1.6 “Documentation” means the user documentation relating to the Services,
including but not limited to descriptions of the functional, operational and design
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characteristics of the Services.
1.7 “Enterprise Application” means each Application that is not a Named User
Application.
1.8 “Highly-Sensitive Personal Information” means an Account User’s (i)
government-issued identification number (including social security number, driver’s
license number or state-issued identified number), (ii) financial account number, credit
card number, debit card number, credit report information, in each case with or without
any required security code, access code, personal identification number or password that
would permit access to such Account User’s financial account; and/or (iii) biometric data.
1.9 “Intellectual Property Rights” means all ideas, concepts, designs, drawings,
packages, works of authorship, processes, methodologies, information, developments,
materials, inventions, improvements, software, and all intellectual property rights
worldwide arising under statutory or common law, including without limitation, all (i)
patents and patent applications owned or licensable by a Party hereto; (ii) rights
associated with works of authorship, including copyrights, copyright applications,
copyright registrations, mask work rights, mask work applications and mask work
registrations; (iii) rights related to protection of trade secrets and Confidential Information;
(iv) trademarks, trade names, service marks and logos; (v) any right analogous to those
set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues
and extensions of the foregoing (as and to the extent applicable) now existing, hereafter
filed, issued or acquired.
1.10 “Named User” means, with respect to a Named User Application, each
unique, identified named user for which COUNTY has paid an applicable named user
subscription fee to CONTRACTOR for such Named User Application.
1.11 “Named User Application” means an Application that CONTRACTOR (i)
limits access and use thereof to Named Users, and (ii) for which the applicable
subscription fee is determined based upon the number of COUNTY’s Named Users.
1.12 “Privacy Policy” means the CONTRACTOR privacy policy, as amended
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from time-to-time, which can be viewed by clicking the “Privacy” hypertext link located on
www.dudesolutions.com.
1.13 “Services” means each of the Application(s) subscribed to by COUNTY
pursuant to this Agreement. COUNTY shall specify each of the Services that COUNTY
shall subscribe to as part of its Account registration process.
1.14 “COUNTY” means the County of Fresno, a political subdivision of the State
of California.
1.15 “COUNTY Data” means all data and information provided by or on behalf
of COUNTY to a Service, including that which the Account Users input or upload to a
Service.
1.16 “Subscription Fee” means, with respect to each Services subscription, the
annual subscription fee invoiced to COUNTY by CONTRACTOR prior to the Initial Term,
and each applicable Renewal Term for such Services subscription, which is required to
be paid by COUNTY in order for COUNTY to be permitted to access and use the Services
in such Services subscription.
1.17 “Third Party” means a party other than COUNTY or CONTRACTOR.
SECTION 2. – OBLIGATIONS OF THE CONTRACTOR
A. SAFEGUARDING SYSTEM SaaS
COUNTY will follow its present practices to safeguard SaaS given subscription access to
COUNTY by CONTRACTOR. A copy of COUNTY’s “Information Technology (IT)
Standards and Preferred Practices” will be made available upon request.
B. SCOPE OF WORK REQUIREMENTS
CONTRACTOR shall adhere to the Scope of Work Requirements, as described in
Attachment A.
C. COUNTY ADMINISTRATOR & PROJECT MANAGER
Upon execution of this Agreement, COUNTY’s Contract Administrator shall designate
one individual from the Internal Services Department (ISD) who will function as Project
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Manager, with responsibility for day-to-day management of the implementation of
Energy Manager project. The Project Manager and COUNTY personnel shall have the
necessary and appropriate training and experience to implement the SaaS. COUNTY
acknowledges CONTRACTOR’s reliance on same.
COUNTY appoints its Chief Information Officer (CIO), or his or her designee, as
COUNTY's Contract Administrator, with full authority to deal with CONTRACTOR in all
matters concerning this Agreement.
D. SUPPORT & TRAINING
CONTRACTOR will provide COUNTY unlimited virtual access to CONTRACTOR’s
support team, “Legendary Support Team,” via phone, email or chat for immediate
assistance. CONTRACTOR is available Monday through Friday, excluding Federal
holidays, 8 am – 6 pm EST. CONTRACTOR can assist with any feature/functionality
questions. For communications via phone, [877-655-3833], CONTRACTOR will answer
calls within 3 rings. For communications via email, support@dudesolutions.com,
CONTRACTOR will respond within 1 hour. Support dialogue is also offered via chat.
Virtual training and virtual support will be provided throughout the term of the Agreement
at no additional cost.
1. Availability: CONTRACTOR shall use commercially reasonable efforts to make
the Services available (i) 99.9% of the time during the hours of 6:00 a.m.
(Eastern time) to 10:00 p.m. (Eastern time), Monday through Friday, excluding
holidays (“Business Hours”), and (ii) 99.5% of the time, determined on a twenty-
four (24) hours a day, seven (7) days a week basis. Availability shall be
calculated on a monthly basis. For purposes of calculating availability, the
Services shall not be deemed unavailable during any period arising from: (i)
routine system maintenance that is performed weekly during non-Business
Hours; (ii) scheduled downtime for extended system maintenance (of which
CONTRACTOR shall give at least 8 hours’ prior notice to COUNTY and which
CONTRACTOR shall schedule to the extent reasonably practicable outside of
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Business Hours); and (iii) any unavailability caused by circumstances beyond
CONTRACTOR’s reasonable control, including, for example, an act of God, act
of government, flood, fire, earthquake, civil unrest, act of terror, strike or other
labor problem (other than one involving Our employees), Internet service
provider failure or delay, non-CONTRACTOR software or hardware, or denial of
service attack
E. SCOPE OF WORK REQUIREMENTS AND PRICING
CONTRACTOR’s scope of work and pricing are attached as Attachments A and B, and are
incorporated by reference. These service obligations are defined as:
1. Professional Services. CONTRACTOR shall provide and perform professional,
technical, consulting and/or other services (collectively, “Professional Services”),
which are mutually agreed upon and described in one or more statements of work.
Each statement of work shall be effective, incorporated into and form a part of this
Agreement when duly executed by an authorized representative of each of the Parties.
Each statement of work shall (i) describe the fees and payment terms with respect the
Professional Services being provided pursuant to such statement of work, (ii) identify
any work product that shall be developed pursuant to such statement of work, and (iii)
set forth each Party’s respective ownership and proprietary rights with respect to any
work product developed pursuant to such statement of work. CONTRACTOR
represents and warrants that all such Professional Services shall be performed in a
professional and workmanlike manner.
2. COUNTY Data Integrity Adherence. CONTRACTOR shall not edit or disclose any
information regarding COUNTY’s Account, including any COUNTY Data, without
COUNTY’s prior permission, except in accordance with this Agreement.
Notwithstanding the foregoing, CONTRACTOR is hereby permitted to provide certain
statistical information (e.g., usage, average costs or time values, or user traffic
patterns) in aggregated and de-identified form to Third Parties, or to other Application
subscribers.
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3. Implementation and Support. Protection of COUNTY Data. CONTRACTOR shall
maintain commercially reasonable administrative, physical, and technical safeguards
for protection of the security, confidentiality, and integrity of COUNTY Data.
F. COUNTY THIRD PARTY INTERACTIONS
1. Relationship to Third Parties. In connection with COUNTY’s use of the Services,
COUNTY may: (i) enter into correspondence with and/or participate in promotions
of advertisers or sponsors showing their goods and/or services through the
Services; (ii) purchase goods and/or services, including implementation,
customization, content, forms, schedules, integration and other services; (iii)
exchange data, integrate, or interact between COUNTY’s Account, the Services
and a Third-Party provider; (iv) be offered additional functionality within the user
interface of the Services through use of the Services' application programming
interface; and/or (v) be provided content, knowledge, subject matter expertise in the
creation of forms, content and schedules. Any such activity, and any terms,
conditions, warranties or representations associated with such activity, shall be
solely between COUNTY and the applicable Third Party. CONTRACTOR shall
have no liability, obligation or responsibility for any such correspondence, purchase,
promotion, data exchange, integration or interaction between COUNTY and any
such Third Party.
2. Ownership. COUNTY is the owner of all Third-Party content and data loaded into
the COUNTY Account. As the owner, it is COUNTY’s responsibility to make sure
the Third-Party content and data meets the County’s particular needs.
CONTRACTOR shall not comment, edit or advise COUNTY with respect to such
Third-Party content and data in any manner.
3. No Warranty or Endorsement. CONTRACTOR does not warrant any Third-Party
providers or any of their products or services, whether or not such products or
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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Internet which are linked through the Services. CONTRACTOR is providing these
links to COUNTY only as a matter of convenience, and in no event shall
CONTRACTOR be responsible for any content, products, or other materials on or
available from such sites.
4. Additional Terms. The Disclaimer of Warranties (Section 8) and Limitation of
Liability (Section 8) set forth herein shall apply to all Third-Party interactions.
G. COMPLIANCE
CONTRACTOR shall comply with all applicable Federal, State, County, and City laws and
regulations regarding wages, hours, and working conditions.
H. SOFTWARE AS A SERVICE
CONTRACTOR grants to COUNTY, and COUNTY accepts, a subscription which provides
access and use of Energy Manager SaaS, which is subject to the terms and conditions set
forth in this Agreement, including Attachments A and B, and incorporated by this reference.
If there is any conflict between the terms of this Agreement and the terms in Attachment A
and B, the terms provided in Attachment A and B shall prevail.
CONTRACTOR shall provide to COUNTY Energy Manager Documentation relating
to the services, which shall consist of Help Documentation as provided on
CONTRACTOR’s help website, and release notes which includes descriptions of additions,
changes, or fixes to the solution.
I. SUBSCRIPTION
Subject to the terms of this Agreement (including, without limitation, the responsibilities,
limitations and restrictions set forth in this Section 2(J), and payment of the Subscription
Fees required hereunder), CONTRACTOR shall permit COUNTY’s Account Users to
access and use the Services during the Term, including access and use of all of the
Content contained in or made available through the Services. COUNTY agrees that it shall
use the Services solely for internal business purposes, and access and use of the Services
shall be limited to Account Users.
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J. ACCOUNT SETUP
To subscribe to the Services, COUNTY must establish its Account, which may only be
accessed and used by its Account Users. To set up an Account User, COUNTY must
provide CONTRACTOR and agree to maintain, promptly update and keep true, accurate,
current and complete information for such Account User. If COUNTY or any applicable
Account User provides any information that is untrue, inaccurate, not current, or
incomplete, CONTRACTOR has the right to immediately suspend or terminate COUNTY’s
Account and usage of the Services, and refuse any and all future use. Each Account User
must establish and maintain a personal, non-transferable password, which shall not be
shared with, or used by, any other Third Party. COUNTY may not transfer an Account
User’s right to access and use the Services to a different user; provided, however, that a
Named User’s right to access and use a Named User Application may be reassigned to a
new Named User replacing such Named User if such replaced Named User has
terminated his/her employment or his/her relationship with COUNTY, or otherwise changes
his/her job status or function within COUNTY and, as a result, no longer requires ongoing
use of the applicable Named User Application. COUNTY shall be solely responsible for
any and all activities that occur under its Account, including all acts and omissions of its
Account Users. COUNTY shall notify CONTRACTOR immediately of any unauthorized use
of its Account and/or any other breach of security of the Services that it suspects or
becomes aware of.
K. COUNTY RESPONSIBILITIES
COUNTY shall: (i) take appropriate action to ensure that non-Account Users do not access
or use the Services; (ii) ensure that all Account Users comply with all of the terms and
conditions of this Agreement, including the limitations and restrictions set out in Section 14,
(J); (iii) be solely responsible for the accuracy, integrity, legality, reliability and
appropriateness of all COUNTY Data created by Account Users using the Services; (iv)
access and use the Services solely in compliance with the Documentation and all
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applicable local, state, federal, and foreign laws, rules, directives and regulations (including
those relating to export, homeland security, anti-terrorism, data protection and privacy); (v)
allow e-mail notifications generated by the Services on behalf of COUNTY’s Account Users
to be delivered to COUNTY’s Account Users; and (vi) promptly update and upgrade its
system as requested or required in order to ensure continued performance and
compatibility with upgrades to the Services. COUNTY shall be responsible for any breach
of this Agreement by Account Users and any access or Use of the Services by persons
other than Account Users.
L. ADDITIONAL GUIDELINES
CONTRACTOR reserves the right to establish or modify general practices and limits
concerning use of the Services, including without limitation, the maximum number of days
that COUNTY Data shall be retained by the Services and the maximum disk space that
shall be allotted on CONTRACTOR servers on COUNTY’s behalf. CONTRACTOR shall
provide at least sixty (60) days’ prior notice of any such modification. CONTRACTOR also
reserves the right to block IP addresses originating a Denial of Service (DoS) attack or IP
addresses causing excessive amounts of data to be sent to CONTRACTOR servers.
CONTRACTOR shall notify COUNTY if this condition exists and inform COUNTY of its
action. Once blocked, an IP address shall not be able to access the Services, although the
block may be removed once CONTRACTOR is satisfied corrective action has taken place
to resolve the issue.
M. THIRD-PARTY SOFTWARE
The Services may incorporate and/or embed software and other technology owned and
controlled by Third Parties. Any such Third-Party software or technology that is
incorporated and/or embedded into any Service shall be provided to COUNTY on the
license terms set forth this Agreement, unless additional or separate license terms apply as
indicated by CONTRACTOR. To the extent that the Services link to any Third-Party
website, application or service, the terms and conditions thereof shall govern COUNTY’s
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rights with respect to such website, application or service, unless otherwise expressly
provided CONTRACTOR. CONTRACTOR shall have no obligations or liability arising from
COUNTY’s access and use of such linked Third-Party websites, applications and services.
SECTION 3. -- TERM
The term of this Agreement shall be for an initial period of three (3) years, commencing on
the Effective Date, through and including November 18, 2022 (“Term”). This Agreement may be
extended for one (1) additional consecutive twelve (12) month period upon written approval of both
COUNTY and CONTRACTOR, no later than thirty (30) days prior to the end of the initial Term.
COUNTY’s Director of Internal Services/Chief Information Officer or his or her designee, is
authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR’s
satisfactory performance.
SECTION 4. – COMPENSATION
COUNTY agrees to pay CONTRACTOR, and CONTRACTOR agrees to receive
compensation in accordance with the pricing provided in Attachment B. COUNTY shall, on or
before the commencement of Service subscription, pay to CONTRACTOR the Subscription
Fees identified in Attachment B for such Service subscription. CONTRACTOR’s fees do not
include any taxes, levies, duties or similar governmental assessments of any nature, including,
for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction
whatsoever (collectively, “Taxes”). COUNTY is responsible for paying all Taxes associated with
its purchases hereunder. If CONTRACTOR has the legal obligation to pay or collect Taxes for
which COUNTY is responsible under this Agreement, CONTRACTOR shall invoice COUNTY,
and COUNTY shall pay that amount, unless COUNTY provides CONTRACTOR with a valid tax
exemption certificate authorized by the appropriate taxing authority. COUNTY agrees to
indemnify and hold CONTRACTOR harmless from any encumbrance, fine, penalty or other
expense that CONTRACTOR may incur as a result of COUNTY’s failure to pay any Taxes
required hereunder. For clarity, CONTRACTOR is solely responsible for taxes assessable
against CONTRACTOR based on its income, property and employees.
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A. ENERGY MANAGER & PUBLIC DASHBOARDS
In no event shall the compensation payable for Energy Manager and Public Dashboards for
the initial three-year term exceed forty-four thousand, eight hundred and two dollars
($44,802). In the event this Agreement is extended for a fouth year, in no event shall
compensation payable for Energy Manager and Public Dashboards exceed sixty-one
thousand, twenty-two dollars ($61,022) total. It is understood that all expenses incidental to
CONTRACTOR’s performance of services under this Agreement shall be borne by
CONTRACTOR.
B. ADDITIONAL SERVICES
In no event shall the maximum compensation payable for Additional Services under this
Agreement exceed sixty-five thousand dollars ($65,000) over the entire potential four-year
term of this Agreement.
C. REIMBURSABLE EXPENSES
CONTRACTOR’s Professional Service fees do not include travel, lodging or other
expenses incurred by CONTRACTOR unless specified on the Statement of Work.
COUNTY shall reimburse CONTRACTOR for all travel, lodging, incidentals and other out-
of-pocket expenses as they relate to the performance of Professional Services rendered by
CONTRACTOR when requested by COUNTY. In no event shall the maximum
compensation payable for Reimbursable Expenses under this Agreement exceed eight
thousand dollars ($8,000) over the entire potential four-year term of this Agreement.
D. TOTAL
In no event shall the maximum total compensation payable under this Agreement for all
services provided under this Agreement for the initial three-year term exceed one hundred
seventeen thousand and eight hundred two dollars ($117,802), and in the event this
Agreement is extended for a fourth year, in no event shall the total maximum compensation
payable exceed one hundred thirty-four thousand and twenty-two dollars ($134,022) over
the entire potential four-year term of this Agreement.
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SECTION 5. – INVOICING
CONTRACTOR shall submit invoices (which must reference the provided contract
number), either electronically, or via mail to the County of Fresno ISD, Accounts Payable, 333
W. Pontiac Way, Clovis, CA 93612 or Accounts Payable
(ISDBusinessOffice@FresnoCountyCA.gov). COUNTY will pay CONTRACTOR within forty-five
(45) days of receipt of an approved invoice.
SECTION 6. -- INDEPENDENT CONTRACTORS
In performance of the work, duties, and obligations assumed by CONTRACTOR under this
Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of
CONTRACTOR’s officers, agents, subcontractors, and employees shall at all times be acting
and performing as independent contractors, and shall act in an independent capacity and not as
an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY.
Furthermore, COUNTY shall have no right to control or supervise or direct the manner or
method by which CONTRACTOR shall perform its work and function. However,
CONTRACTOR’s methods must be compatible with COUNTY's standards, and must result in
satisfactory and timely completion of the work assigned, and the quality and quantity of work
produced must be acceptable to the COUNTY. COUNTY retains the right to verify that
CONTRACTOR is performing its obligations in accordance with this Agreement’s terms and
conditions. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and
the rules and regulations, if any, of governmental authorities having jurisdiction over matters
covered by this Agreement.
Because of its status as an independent contractor, CONTRACTOR shall have absolutely
no right to employment rights and benefits available to COUNTY employees. CONTRACTOR
shall be solely liable and responsible for providing to, or on behalf of, their employees all legally
required employee benefits. In addition, CONTRACTOR shall be solely responsible, and shall
hold the COUNTY harmless from all matters relating to payment of CONTRACTORS'
employees, including compliance with Social Security withholding, and all other regulations
governing such matters. It is acknowledged that during the term of this Agreement,
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CONTRACTOR may be providing services to others unrelated to the COUNTY or to this
Agreement.
SECTION 7. -- TERMINATION OF AGREEMENT
This Agreement may be terminated for the following reasons:
A. NON-ALLOCATION OF FUNDS
The terms of this Agreement and any extensions, and the services to be provided, are
contingent on the approval of funds by the appropriating government agency. If sufficient
funds are not allocated, the services provided may be modified, or this Agreement
terminated without penalty at any time by giving CONTRACTOR thirty (30) days’
advance written notice.
B. CONTRACTOR BREACH OF CONTRACT
COUNTY may immediately suspend or terminate this Agreement in whole or in part,
where in the determination of the COUNTY there is:
1. A failure to comply with any term of this Agreement;
2. A substantially incorrect or incomplete report submitted to the COUNTY; or
3. Improperly performed services.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of
any breach of this Agreement or any default which may then exist on the part of
CONTRACTOR. Such payment shall not impair or prejudice any remedy to the
COUNTY with respect to the breach or default. COUNTY shall have the right to demand
of CONTRACTOR the repayment to the COUNTY of any funds disbursed to the
CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not
expended in accordance with the terms of this Agreement. CONTRACTOR shall
promptly refund any such funds upon demand.
C. COUNTY’S BREACH OF CONTRACT
CONTRACTOR may terminate this Agreement prior to the expiration of the Term if
COUNTY commits a material breach of this Agreement and fails to cure such breach
within thirty (30) days after written notice of such breach is given by CONTRACTOR;
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provided that if the breach involves a failure of COUNTY to pay any of the fees required
under this Agreement, the cure period shall be reduced to ten (10) days. Without limiting
the foregoing, in the event of a breach that gives rise to the right by CONTRACTOR to
terminate this Agreement, CONTRACTOR may elect, as an interim measure, to
terminate one or more of COUNTY’s Services subscriptions and/or suspend its
performance hereunder (including, without limitation, COUNTY’s right to access and use
the Services and the Account) until the breach is cured. CONTRACTOR’s exercise of its
right to elect any interim measure shall be without prejudice to CONTRACTOR’s right to
terminate this Agreement upon written notice to COUNTY.
D. STOP PROVIDING SERVICE
CONTRACTOR may, upon 180 days’ prior written notice to COUNTY, terminate
provision of a Service as a hosted offering. Upon such termination COUNTY may
request in writing and be granted a refund in an amount equal to: the Subscription Fee
prepaid by COUNTY for such Service for the one-year term during which such
termination is effective, multiplied by the number of full months remaining in the
applicable one-year term (determined based upon the effective date of termination of
such Service), divided by twelve.
E. WITHOUT CAUSE
Under circumstances other than those set forth above, this Agreement may be
terminated by COUNTY with ninety (90) days’ advance written notice to CONTRACTOR
of an intention to terminate. In the event of such termination, COUNTY shall pay
CONTRACTOR for satisfactory services or supplies provided up until the date of
termination, and COUNTY shall not be subject to penalty for termination. The Director of
Internal Services/Chief Information Officer (CIO), is hereby authorized to provide such
notice of termination.
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F. EFFECT OF TERMINATION
Upon termination of this Agreement, (i) COUNTY’s access and use of the Services shall
automatically cease, and (ii) CONTRACTOR shall have no obligation to maintain the
COUNTY Data or to forward the COUNTY Data to COUNTY or any Third-Party.
G. SURVIVAL. The following portions of this Agreement shall survive termination of this
Agreement and continue in full force and effect: Sections 14(J) Limitations and
Restrictions, Section 14(K), Proprietary Rights, Section 7(D) Stop Providing Service, and
Section (8) Disclaimer of Warranties, Limitation of Liability, Indemnification and Section 9
Confidential Information. Termination of this Agreement, or any of the obligations
hereunder, by either Party shall be in addition to any other legal or equitable remedies
available to such Party, except to the extent that remedies are otherwise limited
hereunder.
SECTION 8. -- INDEMNIFICATION
A. CONTRACTOR agrees to indemnify, and at COUNTY’s request, defend, the COUNTY,
its officers, agents and employees, from any and all costs and expenses (including reasonable
attorney’s fees and costs), claims, suits, liabilities, losses and damages occurring or resulting to
COUNTY caused by Contractor’s negligent acts or omissions or willful misconduct in connection
with the performance, of this Agreement, by CONTRACTOR, its officers, agents or employees
under this Agreement and from any and all costs and expenses (including reasonable attorney’s
fees and costs), damages, liabilities, claims and losses occurring or resulting in bodily injury,
including death, or property damage to any person, firm or corporation who may be injured or
damaged by the Contractor’s negligent acts or omissions or willful misconduct in the
performance of this Agreement, of CONTRACTOR, its officers, agents, subcontractors,
assigns, or employees under this Agreement. The provision of this Section 8 shall survive the
termination of this Agreement.
B. CONTRACTOR shall also defend, indemnify, and hold harmless COUNTY from any loss,
damage or expense (including reasonable attorneys’ fees) awarded by a court of competent
jurisdiction, or paid in accordance with a settlement agreement signed by COUNTY in
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connection with any Third-Party claim (each, a “Claim”) alleging that COUNTY’s use of the
Services as expressly permitted hereunder infringes upon any United States patent, copyright or
trademark of such Third Party, or misappropriates the trade secret of such Third Party; provided
that COUNTY (a) promptly gives CONTRACTOR written notice of the Claim; (b) gives
CONTRACTOR control of the defense and settlement of the Claim; and (c) provides to
CONTRACTOR all reasonable assistance, at CONTRACTOR’s expense. If CONTRACTOR
receives information about an infringement or misappropriation claim related to the Services,
CONTRACTOR may in its sole discretion and at no cost to COUNTY: (i) modify the applicable
Service(s) so that it no longer infringes or misappropriates, (ii) obtain a license for COUNTY’s
continued use of the applicable Service(s), or (iii) terminate the COUNTY’s Account subscriptions
for the applicable Service(s) upon prior written notice and refund to COUNTY any prepaid
Subscription Fees covering the remainder of the term of the terminated Account subscriptions.
C. Notwithstanding the foregoing, CONTRACTOR shall have no liability or obligation with
respect to any Claim that is based upon or arises out of (a) use of the applicable Service(s) in
combination with any software or hardware not expressly authorized by CONTRACTOR, (b) any
modifications or configurations made to the applicable Service(s) by COUNTY without the prior
written consent of CONTRACTOR, and/or (c) any action taken by COUNTY relating to use of the
applicable Service(s) that is not permitted under the terms of this Agreement. This Section 8 states
COUNTY’s exclusive remedy against CONTRACTOR for any Claim of infringement of
misappropriation of a Third-Party’s Intellectual Property Rights related to or arising from COUNTY’s
use of the Services.
D. Limitation Of Liability. IN NO EVENT SHALL CONTRACTOR, IN THE AGGREGATE,
BE LIABLE FOR DAMAGES TO COUNTY IN EXCESS OF THE AMOUNT OF SUBSCRIPTION
FEES PAID BY COUNTY TO CONTRACTOR PURSUANT TO THIS AGREEMENT DURING
THE TWELVE MONTHS PRIOR TO THE LAST ACT OR OMISSION GIVING RISE TO THE
LIABILITY. UNDER NO CIRCUMSTANCES SHALL CONTRACTOR OR ANY THIRD-PARTY
LICENSOR HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL,
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EXEMPLARY, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF
CONTRACTOR OR THE APPLICABLE THIRD-PARTY LICENSOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY
OR OTHERWISE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF THE ESENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION DOES NOT
APPLY TO INDEMNIFICATION CLAIMS, AS ADDRESSED IN SECTION 8A.
THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
COUNTY AGREES THAT CONTRACTOR’S CRISIS MANAGER AND SAFETY CENTER
APPLICATIONS (COLLECTIVELY, “SAFETY APPS”) IS A DOCUMENTATION TOOL ONLY,
AND THAT EACH OF THE SAFETY APPS IS NOT INTENDED TO PROVIDE EMERGENCY
SERVICES OR PROTOCOLS, PROCEDURES OR ACTION PLANS IN THE EVENT OF A
CRISIS OR EMERGENCY. COUNTY FURTHER AGREES THAT IT SHALL BE SOLELY
RESPONSIBLE FOR: (1) CREATING AND MAINTAINING ITS EMERGENCY ACTION PLAN
WITHIN EACH RESPECTIVE SAFETY APP, (2) ENSURING THAT COUNTY’S EMPLOYEES,
CONTRACTORS AND OTHER PERSONNEL ARE PROVIDED ACCESS TO ITS EMERGENCY
ACTION PLAN WITHIN THE SAFETY APPS, AND (3) CONTACTING (E.G., CALLING 911)
EMERGENCY SERVICES IN THE EVENT OF AN ACTUAL CRISIS OR EMERGENCY.
CONTRACTOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY AS A RESULT OF THIS
AGREEMENT AND/OR COUNTY’S USE OF THE SAFETY APPS FOR DECISIONS MADE OR
ACTIONS TAKEN OR NOT TAKEN IN THE EVENT OF A CRISIS OR EMERGENCY.
E. Disclaimer Of Warranties. CONTRACTOR AND ITS LICENSORS MAKE NO
REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS,
QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE
SERVICES OR ANY CONTENT.CONTRACTOR AND ITS LICENSORS DO NOT REPRESENT
OR WARRANT THAT: (I) THE USE OF THE SERVICES SHALL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER
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HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES SHALL MEET YOUR
REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA SHALL BE ACCURATE OR
RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER
MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES SHALL MEET
YOUR REQUIREMENTS OR EXPECTATIONS; (V) ERRORS OR DEFECTS SHALL BE
CORRECTED; (VI) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES
AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS-IS” BASIS. ALL
CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-
INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW BY DSI AND ITS LICENSORS.
SECTION 9. --CONFIDENTIALITY
A. PROTECTION OF CONFIDENTIAL INFORMATION
The Receiving Party agrees that it shall (i) hold theDisclosing Party’s Confidential
Information in strict confidence, and shall use the same degree of care in protecting the
confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its
own Confidential Information, but in no event less than reasonable care, (ii) not use the
Confidential Information of the Disclosing Party for any purpose not permitted by this
Agreement; (iii) not copy any part of the Disclosing Party’s Confidential Information except
as expressly permitted by this Agreement, (iv) limit access to the Confidential Information
of the Disclosing Party to those of its employees, contractors and agents who need such
access for purposes consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections no less stringent than those
herein.
B. COMPELLED DISCLOSURE
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is
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compelled by law to do so, provided Receiving Party gives Disclosing Party prior notice of
such compelled disclosure (to the extent legally permitted), and reasonable assistance, at
the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the
Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential
Information as part of a civil proceeding to which the Disclosing Party is a party, and the
Disclosing Party is not contesting the disclosure, Disclosing Party shall reimburse the
Receiving Party for its reasonable cost of compiling and providing secure access to such
Confidential Information.
C. REMEDIES
Recipient acknowledges that Disclosing Party would have no adequate remedy at law
should Receiving Party breach its obligations relating to Confidential Information, and
agrees that Dislcosing Party shall be entitled to enforce its rights by obtaining appropriate
equitable relief, including without limitation a temporary restraining order and an injunction.
SECTION 10. -- INSURANCE
Without limiting COUNTY's right to obtain indemnification from CONTRACTOR or any
third parties, each CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
following insurance policies throughout the term of this Agreement:
A. COMMERCIAL GENERAL LIABILITY
Commercial General Liability Insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
($2,000,000). This policy shall be issued on a per occurrence basis. Upon mutual
agreement with Contractor and at any added cost, COUNTY may require specific
coverages including completed operations, products liability, contractual liability,
Explosion-Collapse-Underground, fire legal liability or any other liability insurance
deemed necessary because of the nature of this contract.
B. UMBRELLA INSURANCE.Umbrella insurance with limits of not less than Five Million
($5,000,000) each occurrence and Five Million ($5,000,000) in the aggregate. Umbrella
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insurance may be used to achieve the minimum liability limits because it is endorsed to
state it is “As Broad as Primary Policy.”
C. AUTOMOBILE LIABILITY
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages.
Coverage should include hired autos and non-owned autos used in connection with this
Agreement.
D. PROFESSIONAL LIABILITY
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W.,
M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less
than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars
($3,000,000.00) annual aggregate.
E. WORKER’S COMPENSATION
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
F. CYBER LIABILITY
Cyber liability insurance with limits of not less than Two Million Dollars ($2,000,000.00)
per occurrence. Coverage shall include, but not be limited to, any and all claims,
damages, costs, fees, regulatory fines and penalties, or forms of legal action involving
Cyber Risks. The cyber liability policy shall be endorsed to cover the full replacement
value of, damage to, alteration of, loss of, theft of, ransom of, or destruction of intangible
property (including but not limited to information or data) that is in the care, custody, or
control of CONTRACTOR.
For purposes of the technology professional liability insurance and the cyber liability
insurance required under this Agreement, Cyber Risks include, but are not limited to, (i) security
breaches, which include disclosure of, whether intentional or unintentional, information provided
by COUNTY, information provided by or obtained from any person, or personal-identifying
information relating to any person, to an unauthorized third party; (ii) breach of any of
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CONTRACTOR’s obligations under this Agreement relating to data security, protection,
preservation, usage, storage, transmission, and the like; (iii) infringement of intellectual property
including, but not limited to, infringement of copyright, trademark, and trade dress; (iv) invasion
of privacy, including any release of private information; (v) information theft by any person or
entity, whatsoever; (vi) damage to or destruction or alteration of electronic information; (vii)
extortion related to CONTRACTOR’s obligations under this Agreement regarding electronic
information, including information provided by COUNTY, information provided by or obtained
from any person, or personal-identifying information relating to any person; (viii) network
security; (ix) data breach response costs, including security breach response costs; (x)
regulatory fines and penalties related to CONTRACTOR’s obligations under this Agreement
regarding electronic information; and (xi) credit monitoring expenses.
CONTRACTOR shall obtain endorsements to the Commercial General Liability
insurance include the County of Fresno, its officers, agents, and employees, individually and
collectively, as additional insured, but only insofar as the operations under this Agreement are
concerned. Such coverage for additional insured shall apply as primary insurance and any
other insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees
shall be excess only and not contributing with insurance provided under CONTRACTOR’s
policies herein. This insurance shall not be cancelled or changed without a minimum of thirty
(30) days advance written notice given to COUNTY.
CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents,
and employees any amounts paid by the policy of worker’s compensation insurance required by
this Agreement. CONTRACTOR is solely responsible to obtain any endorsement to such policy
that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver
of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an
endorsement.
Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all
of the foregoing policies, as required herein, to the County of Fresno, Chief Information Officer,
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333 W. Pontiac Way, Clovis, CA 93612, stating that such insurance coverages have been
obtained and are in full force; that the County of Fresno, its officers, agents and employees will
not be responsible for any premiums on the policies; that for such worker’s compensation
insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers,
agents, and employees any amounts paid under the insurance policy and that waiver does not
invalidate the insurance policy; that such Commercial General Liability insurance names the
County of Fresno, its officers, agents and employees, individually and collectively, as additional
insured, but only insofar as the operations under this Agreement are concerned; that such
coverage for additional insured shall apply as primary insurance and any other insurance, or
self-insurance, maintained by COUNTY, its officers, agents and employees, shall be excess
only and not contributing with insurance provided under CONTRACTOR's policies herein; and
that this insurance shall not be cancelled or changed without a minimum of thirty (30) days
advance, written notice given to COUNTY.
In the event CONTRACTOR fails to keep in effect at all times all required insurance
coverages, COUNTY may, in addition to other remedies it may have, suspend or terminate this
Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the State of
California, and such insurance shall be purchased from companies possessing a current A.M.
Best, Inc. rating of A FSC VII or better.
SECTION 11. – MODIFICATION OF SERVICES
The CIO reserves the right at any time during the term of this Agreement to add and/or
remove Add-On Modules to annual software subscription, as described and priced in
Attachment B, Pricing. COUNTY understands that any additions and removals will affect the
compensation paid to CONTRACTOR.
This Agreement may be modified from time to time by the written consent of all the parties
without, in any way, affecting the remainder.
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SECTION 12. – ASSIGNMENT
CONTRACTOR shall not assign, transfer or sub-contract this Agreement or any of its
respective rights or duties hereunder, without the prior written consent of the COUNTY.
CONTRACTOR shall have the full ability to transfer or assign this Agreement to the surviving
entity in a merger or consolidation or to a purchaser of all or substantially all of the assets of a
party. CONTRACTOR must notify COUNTY of such transfer or assignment within thirty (30)
days.
SECTION 13. -- AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during business hours, and as often as the COUNTY
may deem necessary, make available to the COUNTY for examination all of its records and
data with respect to the matters covered by this Agreement. CONTRACTOR shall, upon request
by the COUNTY, permit the COUNTY to audit and inspect all of such records and data
necessary to ensure CONTRACTORS' compliance with the terms of this Agreement. If this
Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the
examination and audit of the California State Auditor for a period of three (3) years after final
payment under contract (Government Code Section 8546.7).
SECTION 14. – MISCELLANEOUS
A. AUTHORITY
COUNTY and CONTRACTOR represent and warrant that: (i) they have full right, title and
authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and
binding obligation of COUNTY, enforceable against it in accordance with its terms.
B. ACCEPTANCE OF PRIVACY POLICY
All data and information provided by COUNTY through its use of the Services is subject
to the Privacy Policy. By using the Services, COUNTY accepts and agrees to be bound
and abide by the Privacy Policy.
C. WAIVER
No failure or delay by either Party in enforcing any of its rights under this Agreement shall
be construed as a waiver of the right to subsequently enforce any of its rights, whether
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relating to the same or a subsequent matter.
D. FORCE MAJEURE
Subject to the limitations set forth below and except with respect to any payment
obligations of COUNTY, neither Party shall be held responsible for any delay or default,
including any damages arising therefrom, due to any act of God, act of governmental entity
or military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war,
sabotage, unavailability of or interruption or delay in telecommunications or Third-Party
services, failure of Third-Party software, insurrections, or any other similar event that is
beyond the reasonable control of such party (each, a “Force Majeure Event”). The
occurrence of a Force Majeure Event shall not excuse the performance by a Party unless
that Party promptly notifies the other Party of the Force Majeure Event, and promptly uses
its best efforts to provide substitute performance or otherwise mitigate the force majeure
condition.
E. INTERPRETATION OF AGREEMENT
The section headings contained in this Agreement are solely for the purpose of reference,
are not part of the agreement of the parties, and shall not affect in any way the meaning
or interpretation of this Agreement. Any reference to any federal, state, local or foreign
statute or law shall be deemed to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
F. NO THIRD-PARTY BENEFICIARIES
No person or entity not a party to this Agreement shall be deemed to be a Third-Party
beneficiary of this Agreement or any provision hereof.
G. SEVERABILITY
The invalidity of any portion of this Agreement shall not invalidate any other portion of this
Agreement and, except for such invalid portion, this Agreement shall remain in full force
and effect.
H. EXPORT COMPLIANCE
The Services, other technology CONTRACTOR may make available, and derivatives
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thereof may be subject to export laws and regulations of the United States and other
jurisdictions. COUNTY shall not export or re-export the Services in any form without first
obtaining the appropriate United States and foreign government approvals. Each Party
represents that it is not named on any U.S. government denied-party list. COUNTY shall
not permit Account Users to access or use the Services in a U.S.-embargoed country or
in violation of any U.S. export law or regulation.
I. COOPERATIVE USE
With COUNTY’s approval, the market research conducted by COUNTY during its
selection process for the Services may be extended for use by other jurisdictions,
municipalities, and government agencies of COUNTY’s state. Any such usage by other
entities must be in accordance with ordinance, charter, and/or procurement rules and
regulations of the respective political entity.
J. LIMITATIONS AND RESTRICTIONS
COUNTY agrees that it shall not, and shall not permit any Third Party to, directly or
indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create
derivative works or attempt to derive the source code of any Service; (ii) assign, transfer,
lease, rent, sublicense, distribute or otherwise make available any Service, in whole or in
part, to any Third Party, including on a timesharing, software-as-a-service or other similar
basis; (iii) share Account login information or otherwise allow access or use the Services
to provide any service bureau services or any services on a similar basis; (iv) use any
Service in a way not intended by CONTRACTOR, as defined by this Agreement, or for
any unlawful purpose; (v) use any Service to store or transmit infringing, libelous, or
otherwise unlawful or tortious material, or to store or transmit material in violation of Third-
Party privacy rights; (vi) copy, frame or mirror any part or content of the Services, other
than copying or framing on COUNTY’s own intranets or otherwise for COUNTY’s own
internal business purposes; (vii) attempt to tamper with, alter, disable, hinder, b y-pass,
override, or circumvent any security, reliability, integrity, accounting or other mechanism,
restriction or requirement of the Services; (viii) remove, obscure, cover or alter any
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copyright, trademark, patent or proprietary notice affixed or displayed by or in the Services
or related documentation; (ix) perform load tests, network scans, penetration tests, ethical
hacks or any other security auditing procedures on the Services; (x) interfere with or
disrupt the integrity or performance of the Services or the data contained therein; (xi)
access any Service in order to build a competitive product or service, copy any features,
functions or graphics of any Service or monitor the availability and/or functionality of any
Service for any benchmarking or competitive purposes; (xii) store, manipulate, analyze,
reformat, print, and display the Content for personal use; (xiii) upload or insert code,
scripts, batch files or any other form of scripting or coding into the Services; and (xiv) store
Highly-Sensitive Personal Information. Highly-Sensitive Personal Information should not
be entered into the Services, as there are no data fields requesting this type of information.
It is the COUNTY’s responsibility to enforce this policy for fields beyond CONTRACTOR’s
control, such as a description or notes field. CONTRACTOR reserves the right in the
future to scan input data and block certain information such as social security numbers or
credit card numbers.
Additional Guidelines. CONTRACTOR also reserves the right to block IP addresses
originating a Denial of Service (DoS) attack, or IP addresses causing excessive amounts
of data to be sent to CONTRACTOR servers. CONTRACTOR shall notify COUNTY should
this condition exist, and inform COUNTY of its action. Once blocked, an IP address shall
not be able to access the Services, and the block may be removed once CONTRACTOR
is satisfied corrective action has taken place to resolve the issue.
Security Emergencies. If CONTRACTOR reasonably determines that the security of its
Services or infrastructure may be compromised due to hacking attempts, denial of service
attacks, or other malicious activities, CONTRACTOR may temporarily suspend the
Services and CONTRACTOR will take action to promptly resolve any security issues.
CONTRACTOR will notify COUNTY of any suspension or other action taken for security
reasons.
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K. PROPRIETARY RIGHTS
COUNTY acknowledges and agrees that (as between COUNTY and CONTRACTOR)
CONTRACTOR retains all ownership right, title, and interest in and to the Applications,
the Services, the Documentation and the Content, including without limitation all
corrections, enhancements, improvements to, or derivative works thereof (collectively,
“Derivative Works”), and in all Intellectual Property Rights therein or thereto. To the extent
any Derivative Work is developed by CONTRACTOR based upon ideas or suggestions
submitted by COUNTY to CONTRACTOR, COUNTY hereby irrevocably assigns all rights
to modify or enhance the Applications and the Services using such ideas or suggestions
or joint contributions to CONTRACTOR, together with all Intellectual Property Rights
related to such Derivative Works. Nothing contained in this Agreement shall be construed
to convey to COUNTY (or to any party claiming through COUNTY) any Intellectual
Property Rights in or to the Applications, the Services, the Documentation and the
Content, other than the rights expressly set forth in this Agreement.
CONTRACTOR acknowledges and agrees that (as between COUNTY and
CONTRACTOR) COUNTY retains all ownership right, title, and interest in and to the
COUNTY Data, including all Intellectual Property Rights therein or thereto.
Notwithstanding the foregoing, COUNTY hereby grants CONTRACTOR a non-exclusive,
royalty-free license to display, distribute, transmit, publish and otherwise use the COUNTY
Data to improve the Services and the performance of CONTRACTOR, including without
limitation, submitting and sublicensing the COUNTY Data to Third Parties for analytical
purposes, provided that (i) such Third Parties have entered into a written agreement with
CONTRACTOR to maintain the confidentiality of the COUNTY Data and (ii)
CONTRACTOR shall not specifically identify the COUNTY Data as originating from
COUNTY when providing the COUNTY Data to such Third Parties.
COUNTY acknowledges the Services may utilize Third-Party software and/or tools
(each, a “Third-Party Tool”) under a license granted to CONTRACTOR by one or more
applicable Third Parties (each, a “Third-Party Licensor”), which licenses CONTACTOR
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the right to sublicense the use of the Third-Party Tool solely as part of the Services. Each
such sublicense is nonexclusive and solely for COUNTY’s internal use and COUNTY shall
not further resell, re-license, or grant any other rights to use such sublicense to any Third
Party. COUNTY further acknowledges that each Third-Party Licensor retains all right, title,
and interest to its applicable Third-Party Tool and all documentation related to such Third-
Party Tool. All confidential or proprietary information of each Third-Party Licensor is
Confidential Information of CONTRACTOR under the terms of this Agreement, and shall
be protected in accordance with the terms of Section 9.
L. Children Under the Age of 13. Websites and/or online applications and services
that are collecting information from children under the age of 13 are required to comply with
Federal Trade Commission (FTC) Children's Online Privacy Protection Act (COPPA). COUNTY
shall not submit, and shall ensure that its Account Users shall not submit, any information from
children under the age of 13. CONTRACTOR does not knowingly collect personal information
from children under 13. If COUNTY believes CONTRACTOR might have any information from or
about a child under 13, please contact CONTRACTOR at: notice@dudesolutions.com or by mail
at the following address: Dude Solutions, Inc., 11000 Regency Parkway, Suite 110, Cary, NC
27518 Attn: Operations. If CONTRACTOR learns it has collected or received personal
information for a child under 13 without verification of parental consent, CONTRACTOR shall
delete such information.
SECTION 15. -- NOTICES
The persons and their addresses having authority to give and receive written notices under this
Agreement include the following:
COUNTY: CONTRACTOR:
Director of Internal
Services/Chief Information
Officer
333 W. Pontiac Way
Clovis, CA 93612
(559) 600-6200
Kelly Caputo
General Counsel
Dude Solutions, Inc.
11000 Regency Parkway, # 110
Cary, North Carolina 27518
Attn: Legal Department
notice@dudesolutions.com
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(877) 868-3833
All notices between the COUNTY and the CONTRACTOR provided for or permitted under
this Agreement must be in writing and delivered either by personal service, by first-class
United States mail, by an overnight commercial courier service, or by email transmission. A
notice delivered by personal service is effective upon service to the recipient. A notice
delivered by first-class United States mail is effective three COUNTY business days after
deposit in the United States mail, postage prepaid, addressed to the recipient. A notice
delivered by an overnight commercial courier service is effective one COUNTY business day
after deposit with the overnight commercial courier service, delivery fees prepaid, with
delivery instructions given for next day delivery, addressed to the recipient. . For all claims
arising out of or related to this Agreement, nothing in this section establishes, waives, or
modifies any claims presentation requirements or procedures provided by law, including but
not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
SECTION 16. – LEGAL AUTHORITY
Individual(s) executing this Agreement on behalf of CONTRACTOR hereby covenants,
warrants, and represents: (i) that he or she is duly authorized to execute or attest and deliver
this Agreement on behalf of such entity, e.g. (without limitation), corporation, limited liability
company, limited partnership, partnership or sole proprietorship, in accordance with all
applicable formalities and under California law; (ii) that this Agreement is binding on such entity;
and (iii) that CONTRACTOR (as applicable) is a duly organized and legally existing corporation,
limited liability company, limited partnership, partnership or sole proprietorship in good standing
in the State of California.
SECTION 17. -- GOVERNING LAW
Venue for any action arising out of or relating to this Agreement shall only be in Fresno
County, California.
The rights and obligations of the parties and all interpretation and performance of this
Agreement shall be governed in all respects by the laws of the State of California.
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SECTION 18. -- DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of this Agreement, the CONTRACTOR
changes its status to operate as a corporation.
Members of CONTRACTOR’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while CONTRACTOR is providing goods or performing
services under this Master Agreement. A self-dealing transaction shall mean a transaction to
which the CONTRACTOR is a party and in which one or more of its directors has a material
financial interest. Members of CONTRACTOR’S Board of Directors shall disclose any self-
dealing transactions that they are a party to by completing and signing a Self-Dealing
Transaction Disclosure Form (Attachment C) and submitting it to the COUNTY prior to
commencing with the self-dealing transaction or immediately thereafter.
SECTION 19. -- ENTIRE AGREEMENT
This Agreement, along with its attachments incorporated herein, constitutes the entire
Agreement between CONTRACTOR and COUNTY with respect to the subject matter hereof
and supersedes all previous Agreement negotiations, proposals, commitments, writings,
advertisements, publications, and understandings of any nature whatsoever unless expressly
included in this Agreement.
1 IN WITNESS WHEREOF , the Part ies hereto have executed this Agreemen t as of t he
2 Effective Date .
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CONTRACTOR
Org No .: 89 05
14 Account No .: 7309
Fund : 10-l.C
15 Subclass : 10000
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By :
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COUNTY OF FRESNO
~--\22e::,:::2
Nathan Magsig , Chairma n of the Board
of Supervisors of the County of Fresno
ATTEST:
Bern ice E. Se idel
Clerk of the Board o upervisors
County of Fresno , State of California
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ATTACHMENT A – SCOPE OF WORK REQUIREMENTS
The following states the specifications for the services provided by CONTRACTOR
under this Agreement.
I. GENERAL
Database capacity that can manage more than 1,500 utility accounts.
Consumption and meter readings available for entire account history.
Store load information such as heating type, square footage, water heater type, etc.
Establish and maintain new buildings and facilities.
Capture all data related to a meter (dials, type, class, etc.)
Create custom line items that correlate to the various line items on utility bills, custom
“Production Metrics” for client specific KPI reporting, and two custom commodities for
tracking consumption on non-standard utility commodities.
Generate a unique vendor number for all vendors in the system.
Designate vendor transactions to pay separately (versus batched).
.Run exportable reports to show all or part of a vendor invoice and associated data.
Add vendors within the system and associate vendor by utility (vendor management).
Provide customers a “read only” user login.
Online review of expense by account number, date, project, or vendor, etc.
Validate vendor name input through use of drop downs or other edits.
Provide exported lists, that can be filtered and sorted, of all invoices to be paid for the user
defined rate range in user defined order (include invoice number, invoice date, vendor
number, vendor name, and invoice amount).Energy Manager will not maintain this list online
in the database.
Identify outage area within system from notices received from vendor and allow
announcements of vendor outage to be posted on the dashboard..Energy Manager does not
maintain a message portal within the system.
On-demand access to system with information able to be changed and reviewed in real
time.
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Export data into common desktop tools such as Excel and PDF.
II. INTERFACE
Receive data imports from automated meter reading systems via .csv upload or manual
entry as often as desired.
Upload data from utility providers (from vendor invoice).
Create an exportable accounts payable file for ERP solution with invoices being associated
with a unique identifier, such as GL code. Energy Manager does not create “out-of-the-box”
payment vouchers or journal vouchers.
Intake of Electronic Data Interface (EDI).
Create exportable Accounts Payable file for ERP solution-based invoices associated with a
unique identifier, such as GL code.
• 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.
Set up master accounts and allocate to buildings based on fixed percentages or sub-meter
readings.
• Sub-meter readings can be hand-keyed or imported into Energy Manager.
III. BILLING
Include all utilities in an exportable report for invoicing.
Create custom line items to duplicate exact charges and line item names on a customer’s
bill without requiring an image file.
Configure charges based on usage or a percentage of electric amount.
Create custom line item (overhead) where a percent can be added. System will not
automatically calculate.
Accommodate a pre-billing review process.
Run exportable reports to provide data for all or part of a vendor invoice and associated
data. Energy Manager does not create or maintain vouchers in the system.
Expand to accept data from other utilities such as water providers.
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IV. SECURITY
Support role-based security (e.g. user log-in associated with system functionality such as
reporting, viewing, account management, etc).
V. SAVINGS
Create and manage special event checklist and/or shutdown procedures.
Create O and M tickets to track energy maintenance issues.
Create capital projects to track and measure against actual usage.
VI. REPORTING
Configure dashboard to provide key productivity indicators and allow drill-down.
View customer data historically.
Run reports on financial codes (org, account, fund, subclass, program numbers),
(department name, building number, site ID, building address, meter number, meter type,
invoice number).
Provide summary bill of a customer’s accounts.
Search on a unique customer identification.
Duplicate reporting filters to all reports during an end-user session.
Add a custom report to the ‘report’ menu without vendor intervention.
Create Ad-hoc reports through supplied report generation tool.
Control reports through system security.
Generate automated reports based on a calendar event and email the report.
Support the upload of data dictionary or other similar.
Benchmark Energy STAR reporting and compliance and customized reporting (including
Excel, PDF, Word, PowerPoint, TIFF, CSV, and XLSX formal exports).
Use IMPVP standards, measure and verify use cost savings while taking weather and
relevant factors into account.
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Toggle on or off, by account, billing graphs, degree-day charts, and optional invoice
presentment.
Configurable views, reports, searches, and graphs.
Report on use/cost, carbon emissions, budget data, avoided cost, and weather.
Build custom reports based on utility bill information, use and cost rankings, and historical
use/cost.
Reference/view customer billing history.
Export filterable reports on amount charged.
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ATTACHMENT B – PRICING
COUNTY will have a subscription to Energy Manager SaaS for a minimum of 401
accounts, and a maximum of 500. One “Account” can also be 1 utility bill, sub-meter or virtual
meter. Periodic upgrades, at CONTRACTOR’s discretion, are no cost.
COUNTY will pay the following fixed costs in accordance with the provisions of this Agreement:
I. SCHEDULED COST FOR POTENTIAL 4-YEAR TERM NOT EXCEED $ 61,022
Item Description Year 1 Year 2 Year 3 Optional Year
4
Software Energy
Manager
$13,246.76 $13,246.76 $13,909.10 $14,604.56
Other Public
Dashboar
ds
$1,418.00 $1,418.00 $1,563.35 $1,614.52
Subtotal= $14,664.76 $14,664.76 $15,472.45 $16,219.08
Total= $61,022
II. ADDITIONAL SERVICES FOR POTENTIAL 4-YEAR TERM NOT EXCEED $65,000
Add-On Modules*
# Item Description Unit Cost
1. Utility Bill Population (UBP) Annual $31,500
2. Utility Bill Population & Management
(UBPM)
Annual $63,000
3. Interval Data Recording: includes “real
time” readings, 15-minute interval data
showing consumption each day, and ability
Per
meter
$40/advanced
meters/smart-meters
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to respond to unnecessary usage spikes
and wasted energy as they are happening.
4. Interval Data Recording & Management:
review imported data to identify issues
from utility providers or data accumulation
devices; remedy bad data or retrieve
missing data; use historical IDR data to
estimate issues such as spikes, zeroes,
flat lines, etc., and validate and transfer
data for County.
Per
meter
$80/advanced
meters/smart-meters
*Additonal Services pricing not guaranteed for life of contract and subject to the then-
current pricing at time services are added.
III. TOTAL FOR POTENTIAL 4-YEAR TERM NOT TO EXCEED $134,022
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ATTACHMENT C - SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
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,
performing services, or both for the County. A self-dealing transaction is defined below:
“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”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1)Enter board member’s name, job title (if applicable), and date this disclosure is being
made.
(2)Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
the County. At a minimum, include a description of the following:
a.The name of the agency/company with which the corporation has the
transaction; and
b.The nature of the material financial interest in the Corporation’s transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
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(1) Company Board Member Information:
Date:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
(a):
(5) Authorized Signature
Signature: Date: