HomeMy WebLinkAboutAgreement A-19-313 with BlueDAG, LLC..pdfAgreement No . 19-313
1 AGREEMENT
2 THIS AGREEMENT ("Agreement") is made and entered into this 9th day of
3 July , 2019 ("Effective Date"), by and between the COUNTY OF FRESNO, a political
4 subdivision of the State of California, ("COUNTY"), and BlueDAG, LLC., a California limited
5 liability company, whose corporate address is at 2999 Gold Canal Drive, Rancho Cordova, CA
6 95670, ("CONTRACTOR").
7
8 RECITALS
9 WHEREAS, COUNTY desires to purchase software as a service licenses, training, and
10 software maintenance of Blue DAG Title II software from CONTRACTOR;
11 WHEREAS, CONTRACTOR represents to COUNTY that the software as a service licenses,
12 training, and software maintenance of BlueDAG Title II software provided by CONTRACTOR,
13 along with professional services from CONTRACTOR, would meet the stated needs of the
14 COUNTY; and
15 WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the purchase
16 of the right to use the software license, and maintenance and support of the BlueDAG Title II
17 software.
18 NOW, THEREFORE , for and in consideration of the promises herein , and for other good and
19 valuable consideration , the parties agree as follows:
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WIT NESSETH
1) OBLIGATIONS OF THE CONTRACTOR
A) SOFTWARE AS A SERVICE
CONTRACTOR grants to COUNTY, and COUNTY accepts a non-
exclusive, non-transferable, annual license to use BlueDAG Title II software
(System Software) that is subject to the terms and conditions set forth in the
attached SAAS Subscription Agreement attached as Exhibit 3, including Sub-
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Exhibits A and B, and incorporated by this reference. Change orders to the license
or services defined in Exhibit 3 may be approved by the Director of Internal
Services/Chief Information Officer or his/her designee.
1) DOCUMENTATION
CONTRACTOR shall provide to COUNTY BlueDAG System
Documentation, which shall consist of electronic media files. The electronic media
files must be printable using PC software normally available at COUNTY.
CONTRACTOR shall provide new System Documentation corresponding to all new
Software Upgrades. COUNTY may print additional copies of all documentation. All
System Documentation is to be used by COUNTY only for the purposes identified
within this Agreement.
2) OBLIGATIONS OF THE COUNTY
A) COUNTY CONTRACT ADMINISTRATOR
COUNTY appoints its Chief Information Officer (CIO), or his designee, as COUNTY's
Contract Administrator with full authority to deal with CONTRACTOR in all matters
concerning this Agreement.
B) SAFEGUARDING SYSTEM SOFTWARE
COUNTY will follow its present practices to safeguard System Software delivered to
COUNTY by CONTRACTOR. A copy of COUNTY’S “Information Technology (IT)
Standards and Preferences” will be made available upon request.
C) ACCEPTANCE TESTING
COUNTY shall approve Final System Acceptance when the BlueDAG system has
been successfully tested, and satisfactorily performs all functions necessary pursuant to
this Agreement, and all deliverables identified in this Agreement as required for
acceptance have been received by COUNTY.
D) ACCEPTANCE TESTING PROCESS
Following delivery and installation, CONTRACTOR shall test the BlueDAG system,
along with COUNTY staff.
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E) COUNTY PROJECT MANAGER
Upon execution of this Agreement, COUNTY’s Contract Administrator shall designate
one individual from ISD who will function as Project Manager with responsibility for day-to-
day management of the project for implementation of BlueDAG. The Project Manager and
COUNTY personnel shall have the necessary and appropriate training and experience to
implement the terms of this Agreement. COUNTY acknowledges CONTRACTOR’S
reliance on same.
F) OTHER COUNTY OBLIGATIONS
Technical assistance from COUNTY’s ISD staff will be provided during the
performance of the installation of the System Software. In particular, COUNTY will
provide:
a. Network connectivity and troubleshooting assistance.
b. Ability to monitor network traffic and isolate bottlenecks.
c. Technical assistance concerning the integration with existing COUNTY
systems (if applicable).
d. Expertise to handle issues with PCs, printers, and cabling before, during,
and after rollout.
3) TERM
This Agreement shall become effective on the Effective Date, for a term of three (3) years,
with the option for two (2) one (1) year extensions, upon written authorization from the County’s
Director of Internal Services or his/her designee, and payment of Annual SAAS Subscription
Fees.
4) TERMINATION
A) NON-ALLOCATION OF FUNDS
The terms of this Agreement, and the services to be provided thereunder, are
contingent on the approval of funds by the appropriating government agency. Should
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sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated, at any time without penalty, by giving the CONTRACTOR thirty
(30) days advance written notice.
B) BREACH OF CONTRACT
Each party may, upon thirty (30) days prior written notice to the other party, terminate
this Agreement if the other party fails to comply with any material term or condition of this
Agreement unless that other party cures such failure within such thirty (30) day period, or
other such timeframe as may be mutually agreed upon in writing by the parties.
C) Without Cause
Under circumstances other than those set forth above, this Agreement may be
terminated by either party by giving sixty (60) days advance written notice of an intention
to terminate to the other party.
5) COMPENSATION/INVOICING
COUNTY agrees to pay CONTRACTOR, and CONTRACTOR agrees to receive compensation
as described in the SAAS Subscription Agreement and the Master Development Agreement.
A) TOTAL CONTRACT AMOUNT
In no event shall services performed under this Agreement exceed $226,000.00 during
the initial three-year term of this Agreement. Upon execution of the first one-year
extension, this limit shall be increased to $298,000.00. Upon the execution of the second
one-year extension, this limit shall be increased to $370,000.00 during the entire possible
five (5) year term of this Agreement. It is understood that all expenses incidental to
CONTRACTOR'S performance of services under this Agreement shall be borne by
CONTRACTOR.
B) INVOICING
CONTRACTOR shall submit invoices (which must reference the provided contract
number), either electronically or via mail (and must reference the provided contract
number on the invoice) to the County of Fresno ISD, Accounts Payable, 333 W. Pontiac
Way, Clovis, CA 93612 or Accounts Payable (ISDBusinessOffice@Co.Fresno.Ca.US).
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COUNTY will pay CONTRACTOR within forty-five (45) days of receipt of an approved
invoice, by mail addressed to CONTRACTOR’s remittance address at 2999 Gold Canal
Drive. Rancho Cordova, CA 95670.
6) INDEPENDENT CONTRACTOR
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 the CONTRACTOR'S officers, agents, and employees will at all times be acting and
performing as an independent contractor, and shall act in an independent capacity and not as
an officer, agent, servant, employee, joint venture, 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, COUNTY shall
retain the right to administer this Agreement so as to verify that CONTRACTOR is performing
its obligations in accordance with the terms and conditions thereof.
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 the
subject thereof.
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, its employees all
legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and
save COUNTY harmless from all matters relating to payment of CONTRACTOR'S employees,
including compliance with Social Security withholding and all other regulations governing such
matters. It is acknowledged that during the term of this Agreement, CONTRACTOR may be
providing services to others unrelated to the COUNTY or to this Agreement.
7) CONFIDENTIALITY
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A Party receiving Information (defined below) of the other will not disclose such
Information other than to persons in its organization who have a need to know and who will be
required to comply with this Section. The Party receiving Information will not use such
Information for a purpose inconsistent with the terms of this Agreement. “Information” means
the Software, Documentation and all information and intellectual property related thereto
(including, but not limited to all databases provided to COUNTY by CONTRACTOR whether
created by CONTRACTOR or its third party licensors such as, without limitation, the mapping
product databases) as well as information related to the business of CONTRACTOR or
COUNTY. Information will not include: (i) information publicly known prior to disclosure; (ii)
information coming into the lawful possession of the recipient without any confidentiality
obligation; and (iii) information required to be disclosed pursuant to regulatory action or court
order, provided adequate prior written notice of any request to disclose is given to the Party
whose information is to be disclosed. Each Party will exercise at least the same degree of care
to safeguard the confidentiality of the other’s Inf ormation as it does to safeguard its own
proprietary confidential information, but not less than a reasonable degree of care.
8) MODIFICATION
Any matters of this Agreement may be modified from time to time by the written consent
of all the parties without, in any way, affecting the remainder.
9) NON-ASSIGNMENT
Neither party shall assign, transfer or sub-contract this Agreement nor their rights or
duties under this Agreement without the prior written consent of the other party.
Notwithstanding the foregoing, CONTRACTOR may assign this Agreement to any of its corporate
affiliates or pursuant to a merger, consolidation, reorganization, change-in-control or sale of all or
substantially all of the assets or business to which this Agreement relates. In the event of such an
assignment, CONTRACTOR shall promptly notify COUNTY, and execute an assignment with the
COUNTY. Any attempted or purported assignment in violation of this provision is null and void.
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10) HOLD HARMLESS
CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request,
defend the COUNTY, its officers, agents, and employees from any and all costs and expenses
(including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or
resulting to COUNTY in connection with the performance, or failure to perform, by
CONTRACTOR, its officers, agents, or employees under this Agreement, and from any and all
costs and expenses including attorney’s fees and court costs, damages, liabilities, claims, and
losses occurring or resulting to any person, firm, or corporation who may be injured or damaged
by the negligence, willful nonperformance, or misconduct of CONTRACTOR, its officers, agents,
or employees under this Agreement.
11) INSURANCE
Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any
third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the
following insurance policies throughout the term of the Agreement:
A) COMMERCIAL GENERAL LIABILITY
Commercial General Liability Insurance with limits of not less than Two Million Dollars
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. 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) 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 any auto used in connection with this Agreement.
C) PROFESSIONAL LIABILITY
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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.
D) WORKER'S COMPENSATION
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
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.
CONTRACTOR shall obtain endorsements to the Commercial General Liability
insurance naming 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.
E. TECHNOLOGY PROFESSIONAL LIABILITY (ERRORS AND OMISSIONS)
Technology professional liability (errors and omissions) insurance with limits of not less
than Two Million Dollars ($2,000,000.00) per occurrence. Coverage shall encompass all of
the CONTRACTOR’s duties and obligations that are the subject of this Agreement.
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.
F. CYBER LIABILITY
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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 inmate, or
personal-identifying information relating to any inmate, to an unauthorized third party; (ii)
breach of any of 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
inmate, or personal-identifying information relating to any inmate; (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, including information provided by COUNTY, information
provided by or obtained from an inmate, or personal-identifying information relating to any
inmate; and (xi) credit monitoring expenses.
Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
CONTRACTOR shall provide certificates of insurance and endorsement as stated above
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for all of the foregoing policies, as required herein, to the County of Fresno, Chief
Information Officer, 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 insurance coverage as
herein provided, the 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 with admitted insurers licensed to do business in the State of
California. Insurance purchased shall be purchased from companies possessing a current
A.M. Best, Inc. rating of A FSC VII or better.
12) AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during CONTRACTOR’S normal business hours,
upon prior written notice, and only as necessary to confirm CONTRACTOR’S compliance with
the terms of this Agreement, make available to the COUNTY for examination the records and
data specifically and solely covered by this Agreement. CONTRACTOR shall, upon request by
the COUNTY, permit the COUNTY to audit and inspect such records and data necessary to
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ensure CONTRACTOR'S compliance with the terms of this Agreement. Any such examinations
or audits shall be at the COUNTY’S expense.
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).
13) NOTICES
A) AUTHORITY TO GIVE AND RECEIVE NOTICES
The following persons (with addresses noted below) have authority to give and receive
notices under this Agreement:
COUNTY OF FRESNO CONTRACTOR
Chris James
Chief Information Officer Manager
333 W. Pontiac Way 2999 Gold Canal Drive
Clovis, CA 93612 Rancho Cordova, CA 95670
ISDBusinessOffice@FresnoCountyCA.gov
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. A notice delivered by email transmission is effective when
transmission to the recipient is completed (but, if such transmission is completed outside of
COUNTY business hours, then such delivery shall be deemed to be effective at the next
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beginning of a COUNTY business day). 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).
B) PRIMARY ESCALATION CONTACT INFORMATION
The persons and their contact information that COUNTY or CONTRACTOR can use to escalate
problems or situations are listed in Exhibit 2, which is attached and incorporated by this
reference, and may be updated on an as-needed basis by either Party by notifying the other
Party.
14) GOVERNING LAW
Venue for any action arising out of or related 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.
15) 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 the 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 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 the 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
(Exhibit 1) and submitting it to the COUNTY prior to commencing with the self-dealing
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transaction or immediately thereafter.
16) Counterparts; Electronic Transmission.
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original, but all of which shall constitute one and the same instrument. A signature
delivered by facsimile, scan, photograph or other electronic transmission shall be as binding as
delivery of an original signature hereto, provided, that the delivering party shall, if requested by
any party for any reason, promptly deliver the original signature so transmitted or a separate,
original signature, the delivery of which shall not in any way limit the effectiveness of the
signature previously electronically delivered.
17) ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the CONTRACTOR and
COUNTY with respect to the subject matter hereof and supersedes all previous Agreements
negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly included in this Agreement. In the
event of any inconsistency in interpreting the documents comprising this Agreement, the
inconsistency shall be resolved by giving precedence in the following order of priority (1) the
text of this Agreement; (2) and the text of the SAAS Agreement, attached hereto as Exhibit 3,
and including Sub-Exhibits A (Description of SAAS Services) and B (Service Level Agreement).
1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the day and year first
2 hereinabove written .
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(Auth
Chris James, Manager
Print Name & Title
2999 Go ld Ca na l Dr.
Ranc ho Cordova, CA 95670
10 Mailing Address
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FOR ACCOUNTING USE ONLY :
ORG : 89050000
Account: 7309
Nathan Magsig , Chairman of the Board of
Supervisors of the County of Fresno
ATTEST:
Bernice E . Seidel
Clerk of the Board of Supervisors
County of Fresno , State of Californ ia
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Exhibit 1
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinaf ter 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:
Name: Date:
Job Title:
(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:
III
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Exhibit 2
COUNTY CONTRACTOR
Contact # 1: Contact # 1:
Americo Papaleo Name: Chris James
Information Technology Manager Title: Manager
Office Phone: (559) 600-5800 Office Phone: 916-526-0721
Email: apapaleo@FresnoCountyCA.gov Email: chris@bluedag.com
COUNTY
Contact # 2:
Sheri Walden
Information Technology Division Manager
Office Phone: (559) 600-5800
Email: swalden@FresnoCountyCA.gov
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Exhibit 3
BLUEDAG, LLC
Software As A Service (SAAS) Agreement
1. Services
BlueDAG agrees to provide the SAAS Services, and COUNTY (also sometimes referred to as “you”
herein) agrees to pay for the SAAS Services, and comply with the terms and conditions set forth in this
Agreement.
2. Users and Use
The SAAS Services may be accessed and used only by the number of Users specified in the
Summary of Material Terms in exchange for payment of the fee corresponding to such Users. During the
Term of Service hereof, BlueDAG shall provide to COUNTY access to the SAAS Services if, and only to the
extent that, any license therefor is necessary, a limited revocable, non-transferable, non-assignable license
for authorized Users to use the SAAS Services during the Term of Service hereof, subject to the provisions
of this Agreement.
3. COUNTY Representations and Obligations
A. Authority and Use. You represent and warrant that (i) you have full power and
authority to enter into this Agreement, and to agree to all the terms and conditions
contained herein; (ii) only you and your Users shall be permitted to access the SAAS
Services and any related tools, applications, information and materials provided in
connection with the SAAS Services; (iii) you shall obtain and maintain in effect all
permits, licenses and authorizations necessary for the purchase and intended use of the
Products and the SAAS, and (iv) with respect to information and material you load into
the SAAS Services or provide to BlueDAG, you possess sufficient intellectual property
and proprietary rights to load and use such information and material in the SAAS
Services without violation of the rights of any third party.
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B. Viruses and Malicious Code. You will neither insert nor permit the insertion or
introduction of any Malicious Code (defined below) into the SAAS Services or systems
and software (collectively “System”) used to deliver the SAAS Services. In addition, you
will take all commercially reasonable actions and precautions to prevent the introduction
and proliferation of Malicious Code into the System. BlueDAG may immediately suspend
your access to the System and SAAS Services if BlueDAG detects Malicious Code or
reasonably suspects that Malicious Code was introduced or permitted to be introduced by
or through you or your account. For purposes of this provision, “Malicious Code” means
(i) any code, program, or sub-program the knowing or intended purpose or effect of which
is to damage or maliciously interfere with the operation of software or any system such as
the System or to halt, disable, or interfere with the operation of any software or system
such as the System, or (ii) any device, method, or token that permits any person to
circumvent without authorization the normal security of any software or system such as
the System.
C. Service Level Agreement. You acknowledge and accept the terms of the SLA
attached hereto as Sub-Exhibit B.
D. Cooperation. You will reasonably cooperate with any BlueDAG investigation of
SAAS Service outages, security problems, and any suspected breach of the Agreement.
E. . Consents. You represent and warrant that you have sufficient right to transmit,
store, copy, and use all data, including personal information if applicable, provided by you
(“Your Materials”) and used by you with the SAAS Services. You, and not BlueDAG, are
responsible for all of Your Materials and you hereby grant BlueDAG authorization to view,
store, copy, and delete any information sent to, from, or stored on the SAAS Services or
a BlueDAG as part of BlueDAG’s provision of the SAAS Services.
F. Minimum Standards. You will provide and maintain all hardware, software and
network connectivity (“Environment”) needed to access the Internet and the SAAS
Services that meets the minimum standards established by BlueDAG as they may be
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revised by BlueDAG from time to time and communicated to you and/or provided on the
BlueDAG website at www.BlueDAG.com.
4. Support and Professional Services
Basic support, as described in Sub-Exhibit B, is included with the subscription at no additional cost.
Additional professional services from BlueDAG are available at an additional cost. Any such professional
services, such as deployment, integration, and technical support in excess of that described in Sub-Exhibit
3(a), attached hereto and incorporated by reference herein, will be provided at additional cost pursuant to a
separate Services Agreement between you and BlueDAG.
5. Upgrades; Modifications of Terms
BlueDAG shall have sole discretion as to whether to make updates, improvements, modifications or
enhancements or add new features to the SAAS Services, and reserves the right to do so at any time,
provided that you will be provided at least ten (10) days' advance notice for changes that materially and
adversely affect any use by you of the SAAS Services. Any such updates, improvements, modifications,
enhancements or new features are subject to this Agreement. All rights not expressly granted to you and
your Users pursuant to this Agreement are reserved to BlueDAG.
6. Limited Use, Unique Users
You and your Users may access and use the SAAS Services solely to support and operate
BlueDAG's platform as described in Exhibit 3(a). BlueDAG reserves the right, in its sole discretion, to limit
your and/or your Users' use of the SAAS Services in the event that BlueDAG determines that your and/or
your Users' use thereof to be inconsistent with such purposes, and/or otherwise inconsistent with this
Agreement. Only the identified User may use the log-in credentials (name, password, etc.) assigned to
them. Each impermissible use of the SAAS Services by any person that is not the User to whom such login
credentials are assigned will result in payment for a User license for such person for the term of this
Agreement to be immediately due and payable respect to prior payment periods and due as regularly
scheduled for other Users for current and future payment periods. Any User added pursuant to this Section
6 may not be removed and shall increase the minimum number of Users required pursuant to this
Agreement.
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7. Prohibited Uses
All uses of the SAAS Service not expressly permitted hereunder are prohibited. Without limiting the
generality of the foregoing, you agree, for yourself and all your Users, as a condition of use of the SAAS
Services, not to use the SAAS Services for any purpose or in any manner that is unlawful or prohibited by
this Agreement or that BlueDAG informs you could damage, disable, overburden, or impair any BlueDAG
or COUNTY server, or the network(s) connected to any BlueDAG or COUNTY server, or interfere with any
other party's use and enjoyment of any of the SAAS Services. You and your Users may not attempt to gain
unauthorized access to any part of the SAAS Services, other accounts, computer systems or networks
connected to any BlueDAG or COUNTY server or to any part of the SAAS Services, through hacking,
password mining or any other means. You and your Users may not obtain or attempt to obtain any
materials or information through any means not intentionally made available through the SAAS Services.
You and your Users may not (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of,
publish, sub-license, distribute, or circulate the SAAS Services, or any associated applications, tools or data
thereof; (ii) disassemble, decompile, or reverse engineer the software used to provide the SAAS Services,
or use a robot, spider, or any similar device to copy or catalog any materials or information made available
through the SAAS Services; or (iii) take any actions, whether intentional or unintentional, that may
circumvent, disable, damage or impair the SAAS Services' control or security systems, or allow or assist a
third party to do so.
8. Suspension of Service
BlueDAG may at any time suspend (or require that you suspend) the access of Users to the SAAS
Services in the event of violation of this Agreement. Grounds for suspension are not limited but may
include, for example, legal or regulatory reasons, investigation of suspicious activities, or action by
authorities, or if BlueDAG or you have reason to suspect any such User is engaged in activities that may
violate this Agreement, applicable laws, or COUNTY policies, or are otherwise deemed harmful to
BlueDAG, your organization, your and our respective network or facilities, or other SAAS Service users.
BlueDAG shall not be liable to any User for suspension of the SAAS Service, regardless of the grounds.
9. Ownership: COUNTY and User Submissions
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As between you and your Users and BlueDAG, the SAAS Services, any material or information
provided to you or Users pursuant to the SAAS Services, and any associated applications, tools or data,
and, except as set forth in Section 11, below, all additions, modifications and improvements made or
specified by BlueDAG, its agents or contractors, are the property of BlueDAG, and are protected by United
States and international copyright, trademark and patent laws, and other laws or provisions for the
protection of intellectual property, trade secrets, or proprietary information, as applicable. By using the
SAAS Services, neither you nor your Users gain any ownership interest in such items. BlueDAG does not
claim ownership of the usage information you or your Users provide for the use and operation of the SAAS
Services. BlueDAG and its vendors and contractors may use such information to operate and administer
the SAAS Services. In addition, BlueDAG may retain, analyze, use and share such information in
anonymous, filtered, or aggregate form for general business purposes.
10. COUNTY Work Product
All materials including background and training materials, data, processes, tools, methodologies,
results, reports, presentations or any other information or material generated or developed by BlueDAG
specifically and uniquely for COUNTY pursuant to this Agreement that is based on any Confidential
Information of COUNTY (“Work Product”) shall be and remain the property of BlueDAG, and COUNTY may
only use such Work Product pursuant to a valid SAAS Subscription Agreement. Work Product does not
include any work product that is independently (without regard to any Confidential Information of BlueDAG)
developed by COUNTY or COUNTY’s Confidential Information. Compliance reports or other COUNTY-
specific information generated by the SAAS Services shall remain the property of COUNTY.
11. Confidential Information
The parties acknowledge that each may be exposed to certain information that is not generally
known to the public which would be considered confidential or proprietary by the other party (“Confidential
Information”). Confidential Information includes, without limitation, all competitively sensitive or secret
business, marketing, and technical information disclosed by one party to another and expressly marked as
“confidential”. Each party agrees that, in the event a party is exposed to the other party’s Confidential
Information, the receiving party: (i) will protect Confidential Information from unauthorized disclosure using
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commercially reasonable care, (ii) will not disclose Confidential Information to any third party (provided that
BlueDAG may disclose your Confidential Information to any of its affiliates or to any vendor as necessary to
provide the SAAS Services, which disclosure will be subject to confidentiality obligations with such party
consistent with this Agreement), and (iii) will not use Confidential Information (other than as authorized by
this Agreement) without the prior written consent of the other party. Within five (5) business days after a
request by either BlueDAG or you, or upon termination of this Agreement, all materials or media containing
any Confidential Information will be either returned to the originating party or destroyed by the receiving
party. The preceding destruction provision will not apply to back-up copies of your Confidential Information
made by BlueDAG in the ordinary course of its rendition of the SAAS Services, provided that BlueDAG will
remain bound by its confidentiality obligations hereunder for so long as it retains such back-up copies.
Confidential Information does not include information which: (i) was already known to the receiving party
prior to the time that it is disclosed to the receiving party as evidenced in writing and without a duty of
confidentiality; (ii) is or has entered the public domain through no breach of this Agreement or other
wrongful act of the receiving party; (iii) has been rightfully received from a third party without breach of any
duty of confidentiality; (iv) has been approved for release by written authorization of the disclosing party; or
(v) is required to be disclosed pursuant to the order of a court or governmental agency, or by state law,
including the California Public Records Act, Cal. Govt. Code §6250 et seq., and if the disclosing party has, if
permitted by law, been given reasonable notice of the order or request, and the opportunity to contest
disclosure.
12. Links to/from Third Party Sites
The SAAS Service may provide links (or allow you or Users to provide links) that allow you or your
Users to leave BlueDAG's site and/or access third party websites or access the BlueDAG site or services
through third party websites. The linked sites are not under the control of BlueDAG, and BlueDAG is not
responsible for the contents of any linked site or any link contained in a linked site, or any changes or
updates to such sites or the performance or security of such other sites. BlueDAG is not responsible for any
content of or transmission to or from any linked site. BlueDAG provides these links only as a convenience
or feature of the SAAS Services, and the inclusion of any link does not imply endorsement by BlueDAG of
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the site. Users access any such third-party websites or access the SAAS Service through any third party
websites at their sole risk and discretion.
13. Security; Passwords; Internet
You are responsible for administering usernames and passwords for all Users (the “Log-In
Information”) and administering any User access granted to the SAAS Service through a User’s account at
a third party site, such as but not limited to Facebook or LinkedIn or similar integration with a third party
website or product (“Single Source Log-In”). Each User must have a valid username and password for the
purpose of accessing the SAAS Services. You and your Users must keep all Log-In Information and Single-
Source Log-In information strictly confidential. Log-In Information and Single Source Log-In may be used
only by the assigned User and may not be shared or transferred to another person without our prior
consent. You are responsible for the use of the SAAS Services by any of your employees or any person
who gains access to your data or the SAAS Services, even if such use was not authorized by you or results
from your failure to use reasonable security precautions or the breach of such precautions.
You may not resell, license or otherwise provide access by any means to any part of the SAAS
Services other than to Users for whom a subscription is paid. You and your Users are responsible for
maintaining the confidentiality of that User's username and password. You and your Users are responsible
for any and all activities that occur under all your Users' accounts. You agree to notify BlueDAG
immediately of any unauthorized use of your Users' accounts or any other breach of security. BlueDAG will
not be liable for any loss that you or a User may incur as a result of someone else using your Users'
passwords or accounts, either with or without the applicable Users' knowledge. BlueDAG is not responsible
to you for unauthorized access to your data or the unauthorized use of the SAAS Services, unless such
unauthorized use or access results from failure by BlueDAG to meet its security obligations as provided
herein.
BlueDAG does not guarantee the security of any information transmitted to or from you or any User
over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each
User's sole responsibility and the responsibility of Internet provider(s) you select. BlueDAG does not accept
any responsibility for failure of service due to Internet facilities, including related telecommunications
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facilities or equipment that are not under BlueDAG direct control.
14. Communications from BlueDAG
BlueDAG may periodically contact you or Users for customer service purposes. By accessing the
SAAS Services, you and each User consent to receive such communications. You agree that BlueDAG
may reference its business relationship with you in its marketing or sales materials.
15. Termination; Effect
A. Suspension or Accelerated Termination. BlueDAG may immediately suspend the
SAAS Services or terminate this Agreement for its convenience if: (i) BlueDAG becomes
aware of what it, in its sole discretion, deems a credible claim that the SAAS Services
infringe upon the intellectual property rights of a third party or (ii) required to do so by law.
In each case, BlueDAG will give you advance notice of pending suspension or
termination of at least twelve (12) hours, unless BlueDAG determines, in its reasonable
discretion, that no notice or shorter notice is necessary to protect BlueDAG, its
customers, or others.
B. Breach. BlueDAG may, at its option, terminate this Agreement for cause or
temporarily or permanently suspend the SAAS Services if: (i) BlueDAG reasonably
believes that the SAAS Services are being used in violation of law or this Agreement; (ii)
your use of the SAAS Services interferes with the normal operations of the System or
other customer’s use of the SAAS Services; (iii) there is an attack on the System or any
portion thereof or your account is accessed or manipulated by a third party without your
consent or in violation hereof, or there is another event for which BlueDAG reasonably
believes suspension of SAAS Services is necessary to protect the BlueDAG network or
BlueDAG's other customers; (iv) your payment of any amount due hereunder is overdue
and you fail to pay the overdue amount within fifteen (15) days of BlueDAG's written
notice (e-mail notice to your account representative shall suffice); (v) you breach any
obligation relating to BlueDAG's or any third party’s intellectual property rights; or (vi) you
materially fail to comply with any other provision of the Agreement and do not remedy
that failure within fifteen (15) days after receipt of notice thereof from BlueDAG (e-mail
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notice to your account representative shall suffice). COUNTY may, at its option, terminate
this Agreement for material breach by BlueDAG of its obligations hereunder that are not
cured within fifteen (15) days after COUNTY provides written notice to BlueDAG of such
breach. COUNTY may terminate this Agreement (other than for uncured material breach
as described in the prior sentence) upon sixty (60) days’ advance notice.
C. Effect of Termination. Upon expiration or prior termination of this Agreement, all
rights granted herein shall revert to BlueDAG. All access to and use of the SAAS
Services by Users must then cease and BlueDAG shall make available to you any of your
data or materials for thirty (30) days following such termination. Sections 10, 11, 12, 14,
16, 17, 18, and 19 and any remaining payment obligations shall survive any termination.
16. Limited Warranty, Limitation of Liability
BlueDAG warrants that it will provide the SAAS Services in conformity with the specifications for
such SAAS Services as provided to COUNTY (as they may be updated from time to time by BlueDAG) by
BlueDAG, and warrants that the SAAS Services will reasonably perform as intended and in conformity with
the SLA. Except for the limited warranty expressly provided in the previous sentence, THE SAAS
SERVICES AND ANY TOOLS, APPLICATIONS, INFORMATION OR MATERIALS PROVIDED TO YOU
IN CONNECTION WITH THE SAAS SERVICES ARE PROVIDED “AS IS,” AND ALL WARRANTIES OF
ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF
DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT,
SECURITY AND, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 17, HEREIN, NON-
INFRINGEMENT, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL BLUEDAG BE LIABLE FOR ANY LOST OR CORRUPTED DATA,
DOWNTIME (OTHER THAN SPECIFICALLY AS PROVIDED IN THE SLA), LOST PROFITS, BUSINESS
INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF
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LIABILITY, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE.
A. Notice; Cooperation. The indemnitee will promptly notify indemnitor should it
become aware of any pending or threatened action that is covered by this Section and
will fully cooperate with the indemnitor in the defense of such action.
17. Miscellaneous.
A. Failure to perform by reason of any law, natural disaster, labor controversy,
encumbered intellectual property right, war, strikes, lockouts, hacking, acts of God,
governmental statutes, proclamations or regulations, riot, civil commotion, war, malicious
mischief, force majeure, or any similar event beyond a party's reasonable control shall
not be a breach hereof, and neither party shall be liable for any loss or damage resulting
therefrom.
B. You acknowledge and agree that the SAAS Services and the tools, applications,
information and materials provided in connection with the SAAS Services possess a
special, unique and extraordinary character that makes difficult the assessment of the
monetary damages that would be sustained as a result of unauthorized use or breach of
your obligations hereunder, and that unauthorized use may cause immediate and
irreparable damage to BlueDAG or other subscribers for which BlueDAG or such other
subscribers would not have an adequate remedy at law. Therefore, you agree that, in the
event of such unauthorized use or breach, in addition to such other legal and equitable
rights and remedies as may be available to BlueDAG, BlueDAG shall be entitled to
injunctive and other equitable relief without the necessity of proving damages or
furnishing a bond or other security.
C. This Agreement shall be construed and enforced under the laws of the State of
California, USA without reference to the choice of law principles thereof. COUNTY
hereby consents to and submits to the jurisdiction of the federal and state courts located
in the State of California, County of Fresno. COUNTY waives any defenses based upon
lack of personal jurisdiction or venue, or inconvenient forum. The parties expressly
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exclude the United Nations Convention on Contracts for the International Sale of Goods
from application to this Agreement.
D. If any provision herein is unenforceable, then such provision shall be of no effect on
any other provision hereof.
E. Section headings are provided for convenience only, and shall not be used to
construe the meaning of any section hereof.
F. Except for revisions or updates to the SLA or SAAS Services specifications as
described herein, this Agreement may be amended only in a writing signed by both
parties.
G. This Agreement, together with the exhibits hereto, shall supersede in its entirety any
purchase order or other documentation issued by COUNTY. In no event will any
additional terms and conditions on a purchase order or other documentation be effective
unless expressly accepted by each party in writing. No provision of this Agreement or any
related document shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason of such
party having or being deemed to have structured or drafted such provision.
H. The parties' relationship is that of independent contractors. Neither party is an agent
for the other, nor does either party have the right to bind the other to any agreement with
a third party.
I. This Agreement may be executed in counterparts, each of which shall be deemed to
be an original, but all of which shall constitute one and the same instrument. A signature
delivered by facsimile, scan, photograph or other electronic transmission shall be as
binding as delivery of an original signature hereto, provided, that the delivering party
shall, if requested by any party for any reason, promptly deliver the original signature so
transmitted or a separate, original signature, the delivery of which shall not in any way
limit the effectiveness of the signature previously electronically delivered.
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Summary of Material Terms
COUNTY: Fresno County
COUNTY Address: 333 W. Pontiac Way
Clovis, CA 93612
Effective Date: July 1st, 2019
SAAS Services: Access to and use of the BlueDAG Title II Compliance platform, as more
fully described in Sub-Exhibit A.
Term of Service: Three years, beginning on the Effective Date, with two successive optional one
year extensions unless terminated as provided herein.
# Users Authorized: 10 seat licenses (“Users”). Additional Users may be added, but a minimum of
6 Users (the “Base Subscription”) shall be maintained at all times during the
term of this Agreement.
Pricing/Fees/Payment: Base Setup/Deployment/Year 1 Licensing and Hosting of Title II Complete -
6-10 Active Users Services: $72,000, due upon signing of MSA and SaaS
Agreement, applied to first year of service (July 1st 2019 – June 30th
2020).
Year 2 Licensing and Hosting of Title II Complete - 6-10 Active Users
Services: $72,000, due July 1st, 2020.
Year 3 Licensing and Hosting of Title II Complete - 6-10 Active Users
Services: $72,000, due July 1st, 2021.
Year 4 Licensing and Hosting of Title II Complete - 6-10 Active Users
Services: $72,000, due July 1st, 2022.
Year 5 Licensing and Hosting of Title II Complete - 6-10 Active Users
Services: $72,000, due July 1st, 2023.
Additional services of up to $10,000 that may be required over the potential 5
year term of the agreement for additional support hours or additional on-site
training as described in the Service Level Agreement in Sub-Exhibit B.
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Service Level Agreement: Provision of the SAAS Services shall be subject to the Service Level
Agreement (“SLA”) attached as Sub -Exhibit B to this Subscription
Agreement. SLA is subject to revision by BlueDAG periodically upon thirty
(30) day prior written notice to the COUNTY.
Professional Services: Except for the SAAS Services described in Sub -Exhibit A, no additional
professional services are being provided at this time pursuant to this
Agreement. Additional professional services may be provided if requested
by COUNTY pursuant to a separate agreement.
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SUB-EXHIBIT
Description of SAAS Services
BlueDAG Title II Complete - 6-10 Active Users with options for customization and importing of legacy
data for the County of Fresno, CA Public Works and Planning, to include the following:
● Deployment of a BlueDAG Title II Complete - 6-10 Active Users server instance within
Vendor datacenter
o Hosting of BlueDAG package
o Daily, Monthly, and Annual Backups of Entity BlueDAG data
o Network and power monitoring
● Creation of Entity-identified User accounts
● Training of Entity staff on included Features of the BlueDAG Title II Government SaaS
package via webinar, teleconference, screen sharing events, and/or onsite training (optional) at
Entity location in Oakland, CA for onboarding:
o Activity Training:
▪ Grievances
▪ Evaluations
▪ Projects
▪ Notices
▪ Transition Plan
▪ Self-Evaluations
▪ Fast Finder
o Mobile Training
o Report Training
▪ Grievance Report
▪ Evaluation Report
▪ Annual Grievance Report
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▪ Table CSV Exports
o Administration Training:
▪ COUNTY Details
▪ My Users
▪ My Jurisdictions
▪ My Requesters
▪ My Departments
▪ Facility Owners
▪ Letters
▪ Custom Standards (Post Implementation)
▪ Custom Findings (Post Implementation)
▪ Report Titles
Ongoing updates of Non-Custom ADA standards, Non-Custom Findings, and Non-Custom Default
Checklists
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SUB-EXHIBIT B
Service Level Agreement
Effective Date: July 1, 2019
This BlueDAG Service Level Agreement (“SLA”) is a statement of certain service levels to be provided
by BlueDAG, Inc. (“BlueDAG”, “us” or “we”), in connection with SAAS Services provided pursuant to the
BlueDAG SAAS Subscription Agreement (the “BlueDAG Agreement”) between BlueDAG and users of
BlueDAG’s SAAS Services (“you”). This SLA applies separately to each account using BlueDAG.
Unless otherwise provided herein, this SLA is subject to the terms of the BlueDAG Agreement, and
capitalized terms will have the meaning specified in the BlueDAG Agreement. We reserve the right to
change the terms of this SLA in accordance with the BlueDAG Agreement.
Basic Support Services
The following support services are included at no extra charge as part of your subscription for the SAAS
Services:
- Up to two (2) hours per paid User per month. Unused hours are not carried over to the next
month. Standard support windows are 9 AM – 4 PM, Monday – Friday, Pacific time zone,
excluding California State and Federal Holidays. Support is provided via email and phone.
A ticketing system is used internally within the Vendor’s support group to track and ensure
resolution of Entity’s support needs. If needed, additional Support options can be quoted to
better meet Entity’s needs.
- Daily, Monthly, and Annual Backups of Entity BlueDAG data
- BlueDAG University Webinars, Onboarding Webinars up to 2hrs/month per User
Additional Support (not included as part of subscription – available for additional fees):
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- Onsite Training: $100 per hour + $200/day per diem. Additional hotel cost up to $250/day
for sequential-day trainings or trainings beginning before 8 am or ending after 6 pm in a
given day.
Uptime Service Commitment
BlueDAG will use commercially reasonable efforts to make the SAAS Services each available with a
Monthly Uptime Percentage (defined below) of at least 98% (the “Service Commitment”). If the Monthl y
Uptime Percentage falls below 98%, BlueDAG shall refund to you one prorated month of the annual
subscription cost. If the Monthly Uptime Percentage falls below 98% in two months of any 12 month
period, you may consider this a material breach by BlueDAG and terminate the contract in accordance
with Section 15.b of the SaaS Subscription Agreement. Monthly Uptime Percentage is calculated by
subtracting from 100% the percentage of hours during the month in which BlueDAG SAAS Services
were unavailable to you. “Unavailable” means the SAAS Services were not available to you in material
conformity with the specifications thereof and terms of the BlueDAG Agreement for a continuous period
of ten (10) minutes or longer. You are responsible for logging and reporting any and all incidents of
unavailability of the BlueDAG SaaS services to BlueDAG within forty-eight (48) hours of the occurrence
of said unavailability. Any reported unavailability is subject to verification by BlueDAG before credit will
be issued. THE CALCULATION OF MONTHLY UPTIME PERCENTAGE WILL EXCLUDE PERIODS
OF UNAVAILABILITY OF BLUEDAG SAAS SERVICES CAUSED BY THE FOLLOWING:
Definitions
● Subscriber breach of the BlueDAG Agreement;
● Suspension or termination provided in the BlueDAG Agreement;
● Factors outside of our reasonable control, including any force majeure event or Internet
access or related problems beyond the demarcation point of BlueDAG platform;
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● Any actions or inactions of you or any third party, including failure to acknowledge a
recovery;
● Your equipment, software or other technology and/or third party equipment, software or
other technology (other than third party equipment within our direct control);
● Planned downtime, of which BlueDAG gives Subscriber at least twenty-four (24) hours’
prior notice (vie e-mail to the account representative or via a conspicuous on-screen
message in the SAAS Service. BlueDAG will use commercially reasonable efforts to
schedule all planned downtime during the hours, U.S. Pacific Time 7:00p.m. Friday to
Saturday 8:00a.m. and 7:00 p.m. Saturday to Sunday 8:00a.m. and 7:00 p.m. Sunday to
3:00a.m. Monday, U.S. Pacific Time, and if not possible during the foregoing times,
planned downtime will be 11:00 p.m. to 5:00a.m. other days, except downtime for major
SAAS Service releases and maintenance, which BlueDAG will use commercially
reasonable efforts to schedule during the hours from 6:30 p.m. Friday to 3:00a.m.
Monday, U.S. Pacific Time. BlueDAG will use commercially reasonable efforts to limit the
number of major Service releases to twelve (12) annually. In no event shall planned
downtime exceed thirty-six (36) hours in any calendar quarter.