23-R-130 Opticom Services Through Global Traffic Technologies/Whelen EngineeringRESOLUTION NO.23-R-130
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A
CONTRACT FOR OPTICOM SERVICES THROUGH GLOBAL TRAFFIC
TECHNOLOGIES AND WHELEN ENGINEERING COMPANY, INC IN
CONNECTION THEREWITH
WHEREAS, Schertz Fire Department desires to enter into an agreement with Global Traffic
Technologies and Whelen Engineering Company, Inc. for Opticom services, described in Exhibit A
and Exhibit B, which is to be effective on the same effective date of this Agreement; and
WHEREAS, City Staff recommends that City Council authorize the City Manager to enter
into a contract with Global Traffic Technologies and Whelen Engineering Company, Inc. for Opticom
intersection preemption services at a cost not to exceed $33,795;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS THAT:
Section 1. The City Council hereby authorizes the City Manager to enter
into a contract with Opticom for intersection preemption services as set forth in
Exhibit A and Exhibit B.
Section 2. The recitals contained in the preamble hereof are hereby found to be
true, and such recitals are hereby made a part of this Resolution for all purposes and are
adopted as a part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent
with any provision of this Resolution are hereby repealed to the extent of such conflict,
and the provisions of this Resolution shall be and remain controlling as to the matters
resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any
person or circumstance shall be held to be invalid, the remainder of this Resolution and
the application of such provision to other persons and circumstances shalnevertheless be
valid, and the City Council hereby declares that this Resolution would have been enacted
without such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and
subject matter of the public business to be considered at such meeting, including this
Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final passage,
and it is so resolved.
Section 8. The ordinance shall be effective upon the date of the final adoption hereof
and any publication required by law.
Section 9. The ordinance shall be cumulative of all other ordinances of the City of
Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the
City of Schertz except insofar as the provisions thereof might be inconsistent or in conflict
with the provisions of this Ordinance, in which the event such conflicting provisions, if any,
are hereby repealed.
PASSED AND ADOPTED, this 116ay of "3.
CITY OF $CHERTZ, TEXAS
-Ae�v-
Ral utie e , Mayor
ATTE
%X�
Sheila Edmondson, 6ty Secretary
EXHIBIT A
MASTER SALE OF GOODS AND SERVICES AGREEMENT
This Master Sale of Goods and Services Agreement ("MSA" or "Agreement") is made as of this 24th day of August,
2022, (the "Effective Date") by and between Global Traffic Technologies, LLC ("GTT"), with its offices at 7800 Third
Street North, Building 100, Saint Paul, Minnesota, 55128 and The City of Schertz ("Customer"), having its offices at
1400 Schertz Parkway Schertz, Texas 78154. Together, GTT and Customer may be referred to as "Parties" and
individually as a "Party" to this MSA.
WHEREAS, GTT is the provider of certain hardware and software products manufactured and distributed by GTT and
is therefore in a unique position to provide services related to its products; and
WHEREAS, Customer desires that GTT perform services as defined herein for the Customer in relation to certain
products; and GTT desires to perform such services for the Customer, subject to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. DEFINITIONS.
A. "Customer'— as used herein, means any purchaser or user of any of GTT's products and/or services, including
but not limited to, contractors, dealers, end users and original equipment manufacturers.
B. "Products" — as used herein, means any hardware and/or software, excluding any software offered as a
service, as specified in any schedule, purchase order or otherwise, regardless of whether such Products are
purchased, leased, or subscribed to.
C. "Software" — as used herein, means the executable code made available to Customer as a perpetual license,
including documentation and to the extent software maintenance is kept current, software updates.
D. "Services" — as used herein is defined as the services provided by GTT or its subcontractors as outlined in
the Agreement, which may include but are not limited to:
"Up -Front Services" — as used herein, means the Services provided initially that are necessary to achieve
First Productive Use (defined herein):
Site survey (intersections and/or vehicles) — GTT will survey Customer's intersections and vehicles to
determine current infrastructure and needs, including wiring, hardware mounting locations and other
key information necessary to ensure a successful deployment. For avoidance of doubt, Customer
agrees to make vehicles and intersections available to GTT to enable the site survey.
Project management — GTT will assign a project manager to work with Customer to create a project
plan and then manage the resources deployed to execute the plan.
iii. Installation (intersections) — GTT will install, configure and test phase selectors, modems, radios,
antennas and/or cables, including testing to ensure proper operation and in preparation for Final
Testing (defined herein).
EXHIBIT A
iv. Installation (vehicles) — GTT will install, configure and test vehicle kits, computers, modems, radios,
antennas, cables and/or software, including testing to ensure proper operation and in preparation for
Final Testing.
v. Training (2 days, 1 trainer; includes travel) — GTT will provide two days of training at the Customer's
location. Customer may have an unlimited number of participants so long as they are employees or
representatives of Customer. Customer must provide the training room and any needed audio/visual
equipment.
vi. Engineering services — GTT will provide custom work if/when applicable and included in the Agreement.
"Ongoing Services" — as used herein, means the Services provided subsequent to Up -Front Services:
i. Hosting — GTT will install its software on a remote, secure, 3rd party server, to be accessed by
Customer and/or GTT as a service. All maintenance of the server is included. Fees for this service are
billed annually, quarterly or monthly, depending upon the payment terms outlined in the Agreement.
ii. Data collection and reporting — GTT will collect data, generate reports and publish as defined as
appropriate by GTT, or as agreed to in writing by the Parties.
iii. Monitoring and optimizing — GTT will monitor Customers' systems to ensure operational status. GTT
will also look for opportunities to optimize the system, which will be communicated to Customer as
applicable. To the extent outages are discovered, GTT will (or alert Customers as to the need to) deploy
resources to provide repair/replacement services locally. For avoidance of doubt, monitoring includes
reviewing data related to vehicles and intersections, but does not include outages that aren't managed
by GTT (e.g., customer -provided cellular connectivity).
iv. Repairs/replacements (intersections) — When outages occur, GTT will attempt to repair remotely if
possible and will deploy local resources to provide services when needed. Local resources will be GTT,
GTT's dealers, or other 3rd party resources approved and subcontracted by GTT.
v. Repairs/replacements (vehicles) — When outages occur, GTT will attempt to repair remotely if possible
and will deploy local resources to provide services when needed. Local resources will be GTT, GTT's
dealers, or other 3m party resources approved and subcontracted by GTT.
vi. Cellular data — Machine to machine cellular connectivity. Provided by vendor of GTT's choice, but
contracted by GTT for the benefit of Customer.
vii. "Software Maintenance" — Provides Customer with access to the customer care center, defect fixes
and Software Updates.
viii. "Software as a Service" or "SaaS" — Hosted software made available as a Service to Customer by GTT,
where no perpetual license is granted.
THE INFORMATION ABOVE CONCERNING SERVICES IS INTENDED TO DEFINE ALL AVAILABLE
SERVICES OFFERED BY GTT, WHICH MAY OR MAY NOT BE INCLUDED IN THIS AGREEMENT. THE
FACT THAT SUCH DEFINITIONS ARE INCLUDED IN THE AGREEMENT IN NO WAY IMPLIES OR
IMPLICATES GTT TO PROVIDE SUCH SERVICES, UNLESS THE SERVICES ARE SPECIFICALLY
LISTED IN SCHEDULE A.
EXHIBIT A
E. "Services Completion" — is defined as the point at which individual Services have been delivered, as
determined and documented by GTT. Services Completion represents acceptance of the individual Services
delivered when Services Completion occurs.
F. "Final Testing" is the point at which the following can be confirmed and documented by GTT, or in the case of
delays caused by the Customer, 30 days from the date Services Completion occurred, whichever is sooner:
1. As applicable, the Products installed in all vehicles available for testing can send a request for priority
control to the Products installed in all intersections available for testing; and all Products installed in all
intersections available for testing can receive a request for priority control; and documentation of the
events can be provided to Customer.
2. As applicable, GTT's management software can connect with all intersections and vehicles available for
testing and documentation of the event can be provided to Customer.
G. "First Productive Use" is the point at which the following can be confirmed and documented by GTT, or in
the case of delays caused by the Customer or other third -parties not within the control of GTT, 30 days from
the date Service Completion occurred, whichever is sooner:
1. Services Completion has occurred.
2. Successful Final Testing has occurred.
H. "Order" — as used herein, means any written document, signed by the Customer, to purchase Products and/or
Services from GTT.
2. TERMS AND CONDITIONS. The Terms and Conditions in Schedule Bare hereby incorporated into this MSA and
made part thereof. The Terms apply to all purchases made by Customer, regardless of whether Customer is
purchasing, leasing or subscribing to Services. In the event any term or condition in the Terms conflicts with any
other term or condition of this MSA, the term or condition of this MSA shall control.
3. SALE OF GOODS AND SERVICES. To the extent Customer purchases Products and/or Services from GTT, the
details regarding such purchase are specifically set forth in the attached Schedule A, which attachment is hereby
incorporated into this MSA and made a part hereof ("Schedule A"). Specific terms, such as pricing, quantity and
the level of service(s) being provided, shall be as set forth in Schedule A. To the extent any subsequent purchases
or service offerings are requested by Customer, these additions will be added to the MSA by way of a subsequent
Schedule A, which will follow sequential order; for example, Schedule A-1, Schedule A-2 and so forth. GTT agrees
to use commercially reasonable efforts to perform the Services during the timeframe outlined within the Schedule
A, but reserves the right to extend that timeframe if necessary to complete the work.
4. TERM. The term of this MSA will begin on the Effective Date and will continue asset forth in Schedule A or until
the expiration of any subsequent schedules, whichever is longer.
5. INTELLECTUAL PROPERTY.
A. Definition of Intellectual Property. "Intellectual Property" shall mean all intellectual property and industrial
property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world,
whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks,
trade names, brand names, logos, trade dress, design rights and other similar designations of source,
sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by
and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions,
EXHIBIT A
designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral
and neighboring rights and all registrations, applications for registration and renewals of such copyrights; (c)
inventions, discoveries, trade secrets, business and technical information and know-how, databases, data
collections and other confidential information and all rights therein; (d) patents (including all reissues,
divisionals, provisionals, continuations and continuations -in -part, re-examinations, renewals, substitutions
and extensions thereof), patent applications and other patent rights and any other governmental authority -
issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models);
and (e) software and firmware, including data files, source code, object code, scripts, mark-up language,
application programming interfaces, architecture, files, records, schematics, computerized databases and
other related specifications and documentation.
B. Deliverables. The term "Deliverables" shall include only materials and services delivered to Customer by GTT
that are expressly identified in Schedule A or any subsequent schedules, if any ("Deliverables"). Unless
otherwise stated in Schedule A or any subsequent schedules, GTT owns and to the extent not owned, is
hereby assigned by Customer, all right, title and interest in all Deliverables including without limitation all
Intellectual Property in and to such Deliverables. Subject to the terms of this MSA, GTT grants a limited, non-
exclusive, royalty -free license to Customer to the Deliverables and GTT Intellectual Property related to the
Deliverables solely to extent and term necessary for Customer to use the Deliverables as contemplated under
Schedule A or the applicable subsequent schedules.
C. Trademarks. As may be required in this MSA, including Schedule A and subsequent schedules, GTT may
use the trademarks and trade names of Customer in connection with its provision of Services and/or other
business uses and Customer hereby licenses such trademarks and trade names to Customer for such
purposes.
6. INDEMNIFICATION.
A. Indemnification by Customer. Customer shall indemnify, defend and hold harmless GTT and its officers,
directors, employees, agents, representatives, subsidiaries, parents, affiliates, vendors, resellers,
independent contractors, successors and permitted assigns (collectively, "GTT Indemnified Parties") against
any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards,
penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and attorneys' fees
and the costs of enforcing any right to indemnification under this MSA and the attorneys' fees and cost of
pursuing any insurance providers, incurred by GTT Indemnified Parties or awarded against GTT Indemnified
Parties relating to, arising out of, or resulting from: (1) any claim of a third party arising out of or occurring in
connection with Customer's gross negligence, willful misconduct, violation of any applicable law or regulation,
or breach of this MSA; or (2) the ownership, licensing, selection, possession, leasing, renting, operation,
control, use, maintenance, delivery, return, or other disposition of the Products or Services that results in any
personal injury, wrongful death, or property damage resulting in relation to the use of the Products or Services.
B. Indemnification by GTT. GTT shall indemnify, defend and hold harmless Customer and its officers, directors,
employees, agents, representatives, subsidiaries, parents, affiliates, vendors, resellers, independent
contractors, successors and permitted assigns (collectively, "Customer Indemnified Parties") against any and
all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards,
penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs
of enforcing any right to indemnification under this MSA and the cost of pursuing any insurance providers,
incurred by Customer Indemnified Parties or awarded against Customer Indemnified Parties relating to,
arising out of, or resulting from any claim of a third party arising out of or occurring in connection with GTTs
gross negligence, willful misconduct, violation of any applicable law or regulation, or breach of this MSA.
7. INTELLECTUAL PROPERTY INDEMNIFICATION.
4
EXHIBIT A
A. By GTT. GTT agrees to indemnify, hold harmless and defend Customer and its directors, officers, employees
and agents from and against all losses, liabilities, damages, claims and expenses, including reasonable
attorneys' fees and court costs, arising out of or relating to any claim by any third party unaffiliated with the
Customer alleging that: (i) Customer's use of the Products or Services in accordance with this MSA infringes
or violates the patent, copyright, trade secret, proprietary, or other Intellectual Property right of any such third
party. Should Customer's use of the Products or Services in accordance with the terms and conditions of this
MSA become, or in GTT's opinion be likely to become, the subject of such a claim described in the immediately
foregoing clause, then, Customer will permit GTT, at GTT's option and expense, either to: (1) procure for
Customer the right to continue its use in accordance with the terms and conditions of this MSA of the Products
and Services, (2) replace or modify the Products and Services so that Customer's use of the Products and
Services in accordance with the terms and conditions of this MSA no longer infringes or violates the Intellectual
Property rights of any third party, provided such replaced or modified Products and Services provides at least
substantially equivalent functionality and comparable performance characteristics in all material respects; or
(3) terminate this MSA (and all licenses granted hereunder), or any addenda or portion thereof (including
without limitation the license of specific software or lease of certain products) and Customer shall return the
non -conforming Products and Services and GTT shall refund the purchase price of such materially impacted
Products and Services. The cost of all return shipping to GTT is the sole responsibility of Customer.
Notwithstanding any provision herein to the contrary, GTT shall have no obligation or liability to Customer to
the extent any such third party claim of infringement or other violation of any Intellectual Property right of any
such third party is caused by the unlicensed use of the Products or Services by Customer, Customer's failure
to operate the Products or Services solely as a part of a system comprised entirely of GTT or GTT authorized
hardware and software, use of the Products or Services with software or hardware other than as intended.
B. By Customer. Customer agrees to indemnify, hold harmless and defend GTT and its directors, officers,
employees and agents from and against all losses, liabilities, damages, claims and expenses, including
reasonable attorneys' fees and court costs, arising out of or relating to any claim by any third party unaffiliated
with GTT relating to, arising out of, or concerning any infringement or misappropriation of the Intellectual
Property rights of a third party to the extent any such third party claim of infringement or other violation of any
Intellectual Property right of any such third party is not indemnified by GTT pursuant to Section 11.3.1 of this
MSA.
C. Indemnification Procedure. The Party seeking indemnification (the "Indemnified Party") shall notify the party
from which the Indemnified Party is seeking indemnification (the "Indemnifying Party") promptly after the
Indemnified Party receives notice of a claim for which indemnification is sought under this MSA, provided,
however, that no failure to so notify the Indemnifying Party shall relieve the Indemnifying Party of its obligations
under this MSA except to the extent that it can demonstrate damages directly attributable to such failure. The
Indemnifying Party shall have authority to defend or settle the claim; provided however that the Indemnified
Party, at its sole discretion and expense, shall have the right to participate in the defense and/or settlement
of the claim and provided further, that the Indemnifying Party shall not settle any such claim imposing any
liability or other obligation on the Indemnified Party without the Indemnified Party's prior written consent.
8. GENERAL PROVISIONS.
A. Entire Agreement. This MSA, including any documents attached hereto and incorporated by reference,
supersedes any and all other prior agreements, understandings, negotiations, or communications, either oral
or in writing, between the Parties or their representatives and constitutes the entire understanding of the
Parties with respect to its subject matter. No form, invoice, bill of lading, shipping document, order, purchase
order, receipt or other document provided by either Party shall operate to supersede, modify or amend any
provisions of this MSA, even if either Party has initialed, signed or otherwise acknowledged such document
regardless of the timing of the execution or presentment in relation to the execution of this MSA, unless the
EXHIBIT A
document expressly states that it modifies or amends this MSA and is signed by authorized representatives
of both Parties. This MSA may not be modified, altered, or waived, in whole or in part, except in a writing
signed by the duly authorized representatives of the Parties hereto. In the event of any conflict between the
terms of the addenda, schedule, exhibits, terms and conditions or schedules, if any, to this MSA, the terms of
the conflicting provision in the addenda, schedule, exhibits, terms and conditions shall supersede the
conflicting terms in this MSA. Wherever possible, the terms of the addenda, schedule, exhibits, terms and
conditions or schedules, if any, to this MSA shall be read to be in addition to and not in conflict with, this MSA.
B. Notices. Written notices as required under this MSA shall be deemed to have been given or made on the
next business day when sent by the use of overnight courier, or on the fifth business day after deposit, postage
prepaid in the U.S. mail for certified or registered mail to the addresses of the Parties set forth at the beginning
of this MSA, Attention: LEGAL. The address for notice may be changed at any time by giving prior written
notice as above provided.
C. Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants or
conditions of this MSA by the other Party will not be deemed a waiver of that term, covenant or condition; nor
will any waiver or relinquishment of that right or power be for all or any other times.
D. Non -Solicitation. Each Party agrees during the term of this MSA and for a period of twelve (12) months
thereafter, it will not directly solicit for hire the employees of the other, without the written consent of the other
Party. Employees hired in response to general employment solicitations advertised in the usual and customary
manner by either Party shall be excluded from this provision.
Assignment. This Agreement shall be binding on the Parties and their successors and permitted
assigns. However, neither Party shall have the right to grant sublicenses hereunder or to otherwise assign,
alienate, transfer, encumber, or hypothecate any of its rights or obligations hereunder, in whole or in part, or
delegate any of its obligations hereunder to any person without the prior written consent of the other Party,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign its
rights or obligations in whole or in part under this Agreement to a wholly -owned subsidiary of its parent or to
an entity under common control, or pursuant to a merger, consolidation, reorganization or a sale of
substantially all of its assets; provided that the assigning Party shall provide written notice to the other Party,
which consent shall not be unreasonably withheld of any such assignment shall not relieve either Party of its
obligations under this Agreement and that the terms of this Agreement shall be performed and provided in the
same fashion and in the same manner as set forth herein.
SIGNATURE BLOCK FOLLOWS.
IN WITNESS WHEREOF, GTT and Customer agree to the terms and conditions of this MSA and have duly executed
this MSA as set forth below:
Global Traffic Technologies, LLC
Signature: _
Printed Name:
Title:
Date:
6
City of Schertz
Signature:
Printed Name:
Title:
Date:
EXHIBIT A
SCHEDULE A
STATEMENT OF WORK
Effective Date: Effective Date of MSA
1. For subscription or capital lease sales, the billing cycle will begin upon First Productive Use (defined herein),
however the amount invoiced will be prorated on a monthly basis ("Interim Rent") to the point of the
Commencement Date (defined herein), based on the number of vehicles and intersections deployed upon First
Productive Use. For the purpose of determining termination of this Schedule A, the term of this Schedule A will
not begin until the first day of the month following Services Completion (defined herein) for all Up -Front Services
(defined herein) for all vehicles and intersections ("Commencement Date"), unless otherwise agreed to by the
Parties in writing. For avoidance of doubt, Interim Rent will be invoiced monthly. For avoidance of doubt, all
vehicles and intersections added after the original Commencement Date will carry their own Commencement Date,
thus extending the term.
2. When included, intersection installation pricing assumes a standard configuration without complications. Not
included in this proposal are the following items, which will require additional cost: a) crushed conduit or any other
issues preventing cable from being installed, b) lane or road closures, c) police or other resources needed at the
installation area and/or d) other third -party costs not known at the time of the proposal.
3. Proposal assumes the intersection cabinets are in good working order and contain wiring diagrams. Vehicle
installation assumes standard installation and does not include: a) special mounting brackets, b) excess wiring
and/or c) swapping out previously installed (replacement) vehicle hardware.
4. Proposal excludes any activities associated with: a) traffic control plan, b) water pollution control plan, c)
changeable message signs/flaggers, d) permits/bonds/fees and/or e) removal/repair/replacement of concrete,
asphalt, conduits or wiring.
5. Customer agrees to accept all applicable hardware and software upon shipment, where shipment is defined as
the point at which hardware and/or software has been picked up from a GTT facility by the shipper ("Shipment")
for delivery to Customer or its designated 3rd party, however acceptance in no way relieves GTT from its obligations
as described in this Agreement or its product warranties.
6. Customer Care center phone support: GTT operates a Customer Care call center that is dedicated to supporting
all GTT customers, whether in or out of warranty. To access GTT's Customer Care, customers can dial 800-258-
4610 within the United States, or for callers outside of the United States, 651-789-7333. GTT's Customer Care
call center will use commercially reasonable efforts to provide technical or sales support, process warranty claims
and/or route calls to other GTT departments. For technical issues, a ticketing system is in place to track cases
through to resolution, escalating within the organization if/where necessary to ensure calls are resolved as quickly
as possible. Customer Care is not available to customers of GTT's software Products if such customer is not
current on its Software Maintenance.
7
EXHIBIT A
Resolution Definition
Cate o
Immediate Reported issue requires immediate attention.
Moderate Reported issue requires attention within 1-2
business days
Minor Reported issue requires attention when
J convenient.
8
Response Time Resolution
Goal Goal
Within 1 business Same business
hour day
Within same 2 business days
business day
Within 1 business As feasible
day
EXHIBIT A
GLOBAL TRAFFIC TECHNOLOGIES
MAKERS OF OPTICOM
Global Traffic Technologies
78M Third Street North
Bldg tQ10
St. Paul'MN 55123I-5411
u5
Schafer f17f! schertl IM 11M
Scharta Fire Rascut Maas
1406 Sdf ery Parkway i8
Schutz, Taxers 78154
Attn: brag Rodgars
■
I
Intersection Compavaerits
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Opocarnslgnai Gore i year otserrrceirrludlrgsuppor4 dma,and pnortryetinvaf
Opucam [loud Corinecsed 3mersetoon
Vehick eornpartessts
Optcom cloud eannevyGa Yetnck
Services
tnsiaaatan, inbvse:boris loathe cabinet "jj
Miscellaneous
External Cabnets
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Proposal w6tas:
N:44CHuy Conti -au Number PE05 2'
thud Term: For Ongoing
olution Type Intersections
Proposal
Direct Customer
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17 57X
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17 S5540
$11,-2e3M
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r7 $23.79
$4.241.16
17 $1146
$2.33750
QuxeassrrrsesGrrcantractedpersarstelwit haveaceutoinsars [siancabnetsasneeded.
Qatirei limes r,3 addloonal ImersnRan ceZtlhcatanor,destandpcumrrlts are required.
Qim[e asstrnes GTT suppirea rw.work connecuvrp at the mmisertion.
Quatedoes rat Include formal sec a[up rarer testing, unless cthrrMse note&
unless nth erw.K noted. GTT's PiszS salutlor, kxludts erne standard monthfy mFort of system health. It custom reports are needed, iflcr can be wotod
opticnaty.
Quote assumes intersetuantono-tillers are EVP capable a•id,'or Tfr'". capable as apprapnate and hair the proper h_ensng, whch is to or a ahied pnor w GTT
CW]Ptnent In19211W0n_
Qunce assumes any required tanecs,w cr nhgwaclan Is [he resporbihllcj� at pvchaser erne cantgarabon programming is cam�oiece prior to frai commissioning.
Quote assumes all management sehwmr w he lied by UT.
Qu02e msnrries a Wh cannecoon between the cloua hosted OPpcarn centralusd salcham applicacron and the traffic nwhwhis)of die targeted nterinvorts.
Quotes% asthe cemratrod rdertace is agreed ur prior to the tornpicoon at the project. 71 changes to the interface re requred after the commlssrpnmgof
the system h w1I he quolea on a time and materials as..
or 2
EXHIBIT A
General Notes_
To the eu�.ent this proposal Is a'Buoac[ary Pro rra�' r Is w be usatl Mr mhxmatlouvt p �rpeses only and x npr Intended to be a circling mntrr_t herw"n the
Parties. The pyres p?rrasded In the Budgetary rnpasaI are asumtates arty.and arc basea art Irllonnation and pricing krrrnr, as of rx date of she 6adgetery
Proposa.
FarsentcG, a svv��nee Plaster 5emot, Agrarne JWWJ must afearrpany the Orator. The terms and condrionsthat gcvsrn the 1-,4.are m,able at httit:7
wAW.gtc.tcrnisalr, tarring.
when Inrludea, Intersection installation priding assumes a standard canfgaration whnous cornphcaticm. Not victualed n shs proposal are thesallowirg reins,
which wit rerf :m additional fees.. 1l crushed concha or any oil" Issues preyan[ng taGe ham"reuno rtsttilad, 21 iris or ram closure, 31 police or adxr
resources needed at the nstalation area, andlor 4j other third casts not Imaertn art the tlmc M the pniposal. Proposal asstrnes the intersection cabinets are
In good WorloN order and ronsatn wiring diagrams.
Vehr_k matailarim asslrras stanaa d irtstallaton and doe net iriclude: I y sxJal mounting bratkm 2) execs wiring, and'ar 31 swapping out prratouay
Installed Ireplacemrntj yehlde hardware
Prorci rr nagenxnt expenses can Increase in Instrrte where Aasx9apment, t' required. Is nos tiny scopad.
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fee, andlor 51 rernayallrepairf"arement of mriatte, asphalt, canduds of wnng.
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10
EXHIBIT A
SCHEDULE B
OTHER TERMS AND CONDITIONS OF PRODUCTS AND SERVICES ("TERMS")
ACCEPTANCE OF TERMS. These Terms are applicable to the provision of any and all Products and Services,
provided by Global Traffic Technologies, LLC, Global Traffic Technologies Canada, Inc. ("GTT") or its subcontracts
to the Customer (hereinafter referred to a "Party" and collectively as the "Parties"). These Terms are applicable to
any Master Service Agreement ("MSA"), Schedule, quote, proposal and/or any documents incorporated by
reference herein ("Contract Documents"). These Terms and any Contract Documents are the complete and
exclusive statement of agreement between Customer purchasing Products and/or Services and GTT, unless
otherwise agreed to by the parties in a signed agreement. GTT expressly objects to and rejects any other terms
and conditions, including any additional or conflicting terms and conditions the Customer includes at any stage
during the Order process, including but not limited to, quotes, purchase orders, invoices and/or any other
documents submitted by Customer regarding an Order, unless otherwise set forth in the Contract Documents.
Customer's acceptance of Products and/or Services will constitute its acceptance of these Terms. GTT reserves
the right to update these Terms and any document referenced herein at any time.
2. ORDERS. A Party may request to amend an Order by requesting the change in writing and if such request results
in an Order being changed, such change will be documented by GTT issuing a written document, which must be
accepted and signed by the Customer and may result in additional fees. All Orders are final and may not be
cancelled, returned, or exchanged, except as provided herein.
3. PRICE, BILLING AND PAYMENT. GTT reserves the right to change the pricing for any Product and/or Service
at any time by providing written notice to Customer at least sixty (60) days prior to the change, unless otherwise
stated in the Contract Documents.
A. If applicable, the fees for Software Maintenance will be calculated annually at fifteen -percent (15%) of the
then current list price of the Software license(s).
B. Unless otherwise indicated by GTT, prices are exclusive of and Customer agrees to pay all foreign, federal,
state, local excise, sales, use, personal property or any other taxes or duties, except taxes based on GTT's
income. If GTT does not collect such amounts from Customer and is later requested or required to pay the
same to any taxing authority, Customer will promptly pay GTT or such taxing authority if requested by GTT.
Customer must provide any certificates or other evidence of applicable exemptions to any taxes or duties to
GTT prior to invoicing or GTT will charge such taxes or duties to Customer.
C. GTT does not represent its prices are equal to or lower than prices charged to other customers, or its prices
are comparable to prices offered by any third party. For Customers in the United States and Canada, payment
is due within (thirty) 30 days of the date of GTTs invoice, unless otherwise agreed to in writing by GTT;
provided however, GTT may require payment in advance if in GTT's reasonable opinion, Customer's financial
condition calls for pre -payment. Payment is required in advance for all other Customers. GTT may assess a
monthly service charge of one and one-half percent (1.5%) on overdue accounts. Customer will pay any
collection costs incurred by GTT to collect payment from Customer, including reasonable attorneys' fees.
D. If Customer fails to make timely payments, has a receiving order in bankruptcy made against it, makes any
arrangement with its creditors, or has a receiver appointed, GTT may, without prejudice to its other rights,
demand immediate payment of all unpaid accounts, suspend further deliveries and/or cancel all Orders
without liability. Payments are not subject to setoff or recoupment for any claim Customer may have.
4. DELIVERY. GTT will make commercially reasonable efforts to ship Products within sixty (60) days of receipt of an
Order, however, delivery dates are approximate and GTT is not be liable for any damages or costs resulting from
11
EXHIBIT A
delays in delivery. If GTT deems necessary, Orders may be partially shipped and partially backordered, unless
otherwise agreed upon in writing by the Parties.
A. Sales within U.S./Canada. GTT will arrange for transportation of all Products and GTT will bear any expenses,
including routing, handling, packaging and additional freight charges, unless Customer furnishes special
transportation instructions that result in expenses beyond what GTT would normally provide.
B. Sales outside of U.S./Canada. Customer will arrange and provide for transportation of all Products from GTT's
facility(ies) at Customer's cost. Customer is the importer of record and will furnish all consular and customs
declarations and eis responsible for any expenses, including but not limited to, additional export packing fees,
export duties, licenses, fees and any applicable taxes. Customer may not re-export the Product or items which
incorporate the Product if such re-export would violate applicable export laws.
C. Title and Risk of Loss. Products are deemed accepted upon shipment. Title and risk of loss or damage to the
Products or any part of the Products will pass to Customer upon shipment and Customer will be responsible
for filing any damage claims with the carrier.
D. Inspection of Products. Customer is responsible for inspecting and filing any claims for Product loss or
damage directly with GTT's Customer Care Center or the carrier within ten (10) days of delivery, unless
otherwise specified by the carrier. All claims must be based on a complete inspection of the shipment and
include any documents applicable to the claim. If Customer timely notifies GTT of any Product loss or damage,
GTT may, in its sole discretion (i) replace the Product or (ii) issue a credit or refund for the price of the Product.
Customer acknowledges and agrees that the remedies set forth in these Terms are Customer's sole and
exclusive remedies for the loss or damage of Products.
5. SOFTWARE.
A. Federal Government End User. This Section applies to all acquisitions of this Software by or for the federal
government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative
agreement or other activity with the federal government. The government hereby agrees that the Software
qualifies as "commercial" computer software within the meaning of the acquisition regulations applicable to
this procurement. The terms and conditions of this Agreement shall apply to the government's use and
disclosure of this Software and shall supersede any conflicting contractual terms and conditions. If this
Agreement or the license granted hereunder fails to meet the government's needs or is inconsistent in any
respect with federal law, the government agrees to return the Software, unused, to GTT.
B. Customer Responsibility. Customer is solely responsible for all actions taken by Customer, its employees,
agents and others accessing or using the Software. Customer is solely responsible for all necessary software,
hardware, Internet connection and network and all other equipment and services necessary to access and
use the Software.
C. Software Performance and Limited Warranty. GTT represents and warrants that the Software will substantially
conform in all material respects to and perform substantially in accordance with its documentation and these
Terms and/or any Contract Documents for a period of one (1) year from the date the Order was placed,
provided that: (i) Customer gives GTT written notice of any claimed breach of this warranty while this warranty
is in effect; (ii) any such breach is not, in GTT's reasonable opinion, a result of any modification of or damage
to the Software or its operating environment by any party other than GTT or a party acting under GTT's control
or direction; and (iii) Customer is in compliance with these Terms. For any breach of the foregoing warranty,
Customer's sole and exclusive remedy shall be as follows: (a) GTT will endeavor to repair or replace the non-
conforming Software within thirty (30) days, or such longer period as the parties may mutually agree, such
that the Software conforms to the foregoing warranty; or (b) if GTT is unable to repair or replace the non-
12
EXHIBIT A
conforming Software within such period such that the Software conforms to the foregoing warranty, either
party may terminate this Agreement (and all licenses granted hereunder), Customer shall return the non-
conforming Software and GTT shall refund the license fee paid hereunder less depreciation calculated on a
five-year straight-line basis. GTT's warranty (including without limitation any extended warranty) applies
solely to the Software and it documentation as it existed at the time of installation and warranties covering
any follow-on versions, all updates, or upgrades are subject to a further written agreement by the Parties.
D. Viruses and Disabling Codes. GTT represents and warrants that to the best of GTT's knowledge, the Software
shall not contain viruses, worms, or spyware (collectively, "Malicious Code"); provided, however, that,
notwithstanding the foregoing, Customer acknowledges and agrees that GTT reserves the right to remotely
prevent access to and/or use of the Software in the event that (i) GTT becomes aware, from Customer or
otherwise, of unauthorized access or use of the Software by any third party, or (ii) this Agreement is
terminated. Notwithstanding any provision of this Agreement to the contrary, in no event shall GTT be in
breach of the warranty set forth above if, at the time any Malicious Code was introduced into the Software,
GTT employed commercially -reasonable measures, consistent with the standards of GTT's industry, to detect
such Malicious Code in order to prevent its introduction into the Software.
E. Audit Rights. Customer shall, while using GTT's Products and Services and for one year thereafter, keep true
and accurate accounts and records in sufficient detail to enable an audit of the manner and extent of the use,
sublicensing, transfer, or other disposition of the licensed Software, its derivatives, or any product or service
based upon or incorporating or using all or portions of the Software to confirm Customer's compliance with
the Terms and/or any Contract Documents. At the reasonable request of GTT, but no more than once per
year, unless there is a reasonable suspicion of a breach of these Terms and/or any Contract Documents,
Customer shall allow GTT to inspect and audit such information and Customer facilities as is necessary to
ensure Customer's compliance with these Terms.
6. HAZARDOUS MATERIALS. Customer acknowledges that certain materials provided by GTT may be considered
hazardous materials under various laws and regulations. Customer agrees to familiarize itself (without reliance on
GTT, except as to the accuracy of special safety information furnished by GTT), with any hazards of such
materials, their applications and the containers in which such materials are shipped and to inform and train its
employees and customers to such hazards. Customer will hold GTT harmless against any claims by its agents,
employees or customers relating to any such hazards, except to the extent such claims arise solely and directly
from GTT's failure to meet its written specifications or the inaccuracy of safety information furnished by GTT.
WARRANTY. GTT warrants its Products in accordance with its limited warranty, available at
www.gtt.com/supporUwarranty-repair and as otherwise provided herein. GTT warrants all Services will be
performed in a professional and workmanlike manner in accordance with applicable industry standards, in the
event that any Product fails to conform to the terms of GTT's warranty, the sole and exclusive remedy shall be
limited to the return of the non -conforming Product to GTT for repair or replacement of the non -conforming
components, as determined by GTT in its sole discretion. The cost of return shipping to GTT is the responsibility
of the Customer. All claims for non-conformance are returned to GTT All claims for non-conformance or breach of
warranty shall be deemed waived, unless the non -conforming components are returned to GTT within 30 days of
discovery of the alleged non-conformance.
THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT
OF A COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE AND NON -
INFRINGEMENT. IN ADDITION TO THE EXCLUSION OF AFORMENTIONED WARRANTIES, SERVICES, ARE
PROVIDED "AS IS" AND GTT DOES NOT WARRANT THE SERVICES WILL MEET CUSTOMER'S
REQUIREMENTS, BE UNINTERRUPTED, OR BUG OR ERROR -FREE. NO EMPLOYEE OR AGENT OF GTT,
13
EXHIBIT A
OTHER THAN AN OFFICER OF GTT BY WAY OF A SIGNED WRITING, IS AUTHORIZED TO MAKE ANY
WARRANTY IN ADDITION TO THE FOREGOING. EXTENDED WARRANTIES MAY BE AVAILABLE UPON
REQUEST.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL GTT BE LIABILE FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ASSERTED IN TORT, CONTRACT,
WARRANTY, STATUTORY OR OTHER THEORY OF LIABILITY. GTT SHALL ALSO NOT BE LIABLE FOR ANY
PERSONAL INJURY, WRONGFUL DEATH OR PROPERTY DAMAGES CAUSED BY OR ARISING FROM ANY
ALLEGED DEFECT, NON-CONFORMANCE, OR FAILURE OF ITS SYSTEMS TO FUNCTION, OPERATE OR
PERFORM, WHETHER ASSERTED IN WARRANTY, CONTRACT, TORT OR OTHER THEORY OF LIABILITY.
IN ANY EVENT, GTT SHALL BE SOLEY LIABLE FOR ACTUAL DAMAGES CAUSED BY GTT'S BREACH AND
GTT'S TOTAL LIABILITY HEREUNDER, REGARDLESS OF THE LEGAL THEORY, WILL NOT EXCEED THE
AMOUNT PAID TO GTT PURSUANT TO THE RESPECTIVE ORDER FOR PRODUCTS AND SERVICES IN
THE ONE YEAR IMMEDIATELY PRECEDING THE START OF THE EVENT GIVING RISE TO THE CLAIM. IN
NO EVENT WILL GTT BE REQUIRED TO INDEMNIFY CUSTOMER OR ANY OTHER PARTY. NO ACTION,
REGARDLESS OF FORM, ARISING OUT OF OR ALLEGING EITHER A BREACH OF ANY WARRANTY OR A
BREACH OF ANY CONTRACTUAL TERM OR LEGAL DUTY BY GTT MAY BE BROUGHT MORE THAN ONE
YEAR AFTER THE CAUSE OF ACTION ACCRUES.
9. SUSPENSION. Without waiving any other rights or remedies, GTT may suspend performance hereunder and/or
under any Order or other contract if: (i) Customer fails to pay any invoice within sixty (60) days from the invoice
date; (ii) GTT reasonably believes Customer's use of the Products or Services may violate any applicable law,
rule or regulation, or infringes upon third party rights; or (iii) GTT is entitled to terminate this Agreement for cause.
10. PROPRIETARY RIGHTS. GTT and its licensors will retain all intellectual property rights to the Products and
Services, including without limitation, all designs, drawings, patterns, plans, specifications, technology, technical
data and information, technical processes and business methods, whether patentable or not, arising from the
provision of Products and/or Services to Customer, including GTT rendering engineering services to and designing
systems and goods for Customer's use. Customer agrees not to enforce against GTT or GTT's customers any
patent rights that include any system, process or business method utilizing or otherwise relating to the Products
and/or Services.
11. RESALE. Customer, by placing and Order and accepting these Terms, hereby expressly agrees, acknowledges,
represents and warrants to GTT that Customer is purchasing the Products and Services for its own internal
business use and not for resale and in the event Customer breaches the foregoing by selling the Products or
Services that are the subject of the Order. Notwithstanding the foregoing, nothing in this Terms is intended to
restrict a Customer that is an authorized GTT dealer, contractor, or original equipment manufacturer from reselling,
if such Customer is authorized to do so pursuant to GTT's acceptance of an Order.
12. COMPLIANCE WITH LAWS/ANTI-CORRUPTION. Customer will fully comply with all applicable laws, rules and
regulations, including without limitation, those of the United States and any and all other jurisdictions globally
("Laws") that apply to Customer's activities in connection with an Order. Specifically, Customer must comply with
all Laws relating to anti -corruption, bribery, extortion, kickbacks, or other similar matters that are applicable to
Customer's business activities in connection hereunder and/or with any Orders or the Contract Documents,
including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Customer will take no
action that may cause Customer, GTT, or their affiliates to violate any Laws.
A. Products and Services will comply with applicable federal legal requirements in the United States and Canada.
If they must comply with any additional legal requirements, such as a state or local municipality, or another
country, Customer is solely responsible for identifying all such requirements to GTT in writing.
14
EXHIBITA
13. CONFIDENTIAL INFORMATION. As used herein, "Confidential Information" means all information of a party
("Disclosing Party'), obtained by or disclosed to the other party ("Receiving Party") that by its nature would
reasonably be considered as confidential or is identified as confidential by the Disclosing Party.
A. Confidential Information excludes information that: (a) is or becomes public knowledge through no fault of
Receiving Party; (b) was in Receiving Party s possession before receipt from Disclosing Party; (c) is rightfully
received by Receiving Party from a third party without any duty of confidentiality; (d) is independently
developed by Receiving Party without reference to or use of Confidential Information; or (e) is related to the
terms and conditions of this Agreement and is disclosed by GTT to an authorized GTT dealer in the course of
normal business operations, provided that said dealer was involved in the sales process pertaining to this
Agreement..
B. Receiving Party Obligations. The Receiving Party agrees (i) not to use Confidential Information of Disclosing
Party other than in furtherance of the Order; (ii) to hold Confidential Information of the Disclosing Party in
confidence and to protect the Confidential Information using the same degree of care it uses to protect its
own Confidential Information but in no event with less than reasonable care and to restrict disclosure of the
Confidential Information to its employees and agents who have a "need to know'; and (iii) Confidential
Information of Disclosing Party may be disclosed in response to a valid court order or other legal process
only to the extent required by such order or process and only after the Receiving Party has given the
Disclosing Party written notice of such court order or other legal process promptly, if allowed by law and the
opportunity for the Disclosing Party to seek a protective order or confidential treatment of such Confidential
Information. Upon Disclosing Party's request, Receiving Party will return Confidential Information to
Disclosing Party or destroy the same if requested by Disclosing Party. Receiving Party agrees its breach of
this section may cause irreparable damage and Disclosing Party may seek equitable remedies, in addition
to other remedies hereunder or at law.
14. GOVERNING LAW; VENUE; ACTIONS; ATTORNEYS FEES. The Order and these Terms will be governed by
and construed in accordance with the laws of the State of Minnesota without regard to conflicts of laws
provisions. The parties consent to the sole and exclusive venue and jurisdiction of the federal and state courts
situated in or having jurisdiction over Ramsey County, Minnesota. The United Nations Convention on Contracts
for the International Sale of Goods will not apply. Customer must commence all actions relating to an Order
within one (1) year from the initial date of occurrence of the event giving rise to any claim or such claim will be
forever barred. If GTT substantially prevails in any dispute, Customer will pay all reasonable costs incurred by
GTT, including but not limited to collection costs, attorneys' fees and costs of legal action.
15. FORCE MAJEURE. GTT will not be liable for damages of any kind resulting from any delays in performance, in
whole or in part, or any loss, damage, cost or expense, including any loss or damage to the Product that may
prevent GTT from performing any obligations hereunder, resulting from causes beyond its reasonable control,
such as acts of God, fire, strikes, epidemics, embargos, acts of government, war, riots, vandalism, theft, delays in
transportation, difficulties in obtaining necessary labor, materials, or manufacturing facilities or other similar
causes ("Force Majeure Event"). In such event, the Party delayed will promptly give notice to the other Party. In
the event of a delay, the Parties, through mutual agreement, may: (a) extend the time for performance for the
duration of the Force Majeure Event, or (b) cancel all or any part of the unperformed part of the Order if such Force
Majeure Event exceeds sixty (60) days. If GTT's costs are increased as a result of such Force Majeure Event,
GTT may increase pricing upon written notice to Customer.
GTT reserves the right to charge Customer reasonable, additional fees that occur as a result of: 1) a report of an
outage or disruption that is later determinied to be unrelated to GTT's Products or Services and/or 2) Services or
Product replacements that become necessary as a result of loss or damage due to Customer's (or Customer's
other suppliers') removal of Products or negligence.
15
EXHIBIT A
16. TECHNOLOGY REQUIREMENTS.
A. If GTT's North American variant has been requested, Customer acknowledges that North American radio
equipment is certified to North American standards (e.g., the FCC) and not international standards (e.g.,
ETSI). Customer has specifically requested the North American variant and accepts all responsibility for
obtaining the necessary waivers from the appropriate agencies in the country in which the equipment will be
operated, before the equipment is installed and/or made operational; and purchaser accepts all associated
liability for not doing so.
B. Customer is responsible for ensuring that the traffic infrastructure, including the traffic controller, is compatible
with the Products.
1. When integration services are proposed (for transit applications), integration assumes: a) route and run
information is available on the vehicle via J-1708 or RS485, whenever driver updates either the route or
run; schedule data is available in standard GTFS format via an IP portal accessible to the Opticom Central
Management Software (CMS); b) connectivity is available to all transit vehicles. If any of the preceding is
not available, pricing for integration services may be affected.
C. In instances where GTT is providing PCaaS or any ongoing services requiring remote access, GTT assumes
the presence of and access to a customer -provided connectivity network for remote access to intersections
and vehicles, unless a GTT-provided cellular data plan has been included amongst the listed services.
17. MISCELLANEOUS. If any provision of these Terms to any extent is declared invalid or unenforceable, the
remainder of these Terms will not be affected thereby and will continue to be valid and enforceable to the fullest
extent permitted by law. Any modifications hereto must be in writing and signed by both parties. GTT's failure to
strictly enforce any of these terms will not be considered a waiver of any of its rights hereunder. Neither Party will
assign this these Terms nor any of its obligations hereunder without the prior written consent of the other Party,
except in the case of a reorganization, merger, acquisition, or sale of substantially all its assets. These Terms will
be binding on and inure to the benefit of each Party's successors and assigns. The termination or expiration of
any Order and/or any the Contract Documents, will not affect the survival or continuing validity of any provision
that expressly or by implication is intended to continue in force after such termination or expiration.
18. SERVICES. Customer is responsible for Up -Front Services and Ongoing Services, unless such services are
included in the Order or a subsequent Order. Prices for Up -Front Services and Ongoing Services are charged at
the then -prevailing rates, unless otherwise agreed to in writing in the Contract Documents. Services excludes
integration of GTT's Products with third party products, unless otherwise agreed to in writing by GTT. Customer
is responsible for any delays due to failure to comply with its portion of any applicable project plan related to
Services.
A. Ongoing Services required due to the following are excluded and subject to an additional fee: (1) modification
of Products or Services without GTT's written consent; (2) use of parts and/or supplies not approved by GTT
for use with the Products or Services; (3) misconduct, accident, neglect or misuse; (4) failure of installation
site to conform to GTT's applicable specifications; (5) failure or inadequacy of electric power, humidity or air
control; (6) failure to follow operating procedures provided by GTT; (7) Customer's failure to ensure that the
traffic infrastructure, including the traffic controller, is compatible with the Products; and (8) service or
maintenance performed by an unauthorized representative of GTT.
B. GTT's performance of Ongoing Services at its expense, is contingent upon the Customer: (1) exercising
reasonable care in the operation of the Products; (2) operating the Product within GTT's published
specifications; (3) maintaining the Product in conformance with GTT's maintenance standards; (4) properly
16
EXHIBITA
maintaining the operating environment; and (5) providing necessary utility services for use of the Product in
accordance with accompanying specifications.
C. Customer acknowledges that it is aware that in order to install Products and perform Services it may be
necessary to drill holes and/or connect to a vehicle's electrical system and/or traffic cabinet's electrical system
and agrees that GTT shall not be liable for any costs, expenses or damages arising from such work.
19. REPLACEMENT PARTS. In performing PCaaS services, GTT reserves the right to use replacement parts that are
new, refurbished or equivalent in performance to new parts, at no extra charge to Customer. Parts being replaced
will be the property of GTT. Customer acknowledges certain parts may be subject to discontinuance by the
manufacturer, in which event GTT's obligation will be limited to making reasonable efforts to replace such
discontinued parts with an equivalent part.
20. DATA. Customer warrants that it has sufficient rights, title and interests in and to all means of information, data
and/or files Customer transmits or uploads to or stores on any environment, in connection with its use of the
Products or Services ("Customer Data"). Customer will not transmit or upload any personally identifiable
information and will be solely responsible for the security of such information. GTT may view, store, copy, delete
or otherwise process any Customer Data to provide the Products and/or Services to Customer and unless
prohibited by law, GTT may also collect, analyze and otherwise use anonymized versions of Customer Data for
its own business purposes.
21. SUPPORT. GTT will provide helpdesk support during GTT's normal business hours, which are 8:00 am to 5:00
pm central time, Monday through Friday, excluding holidays.
A. Warranty Support. Contact your authorized Opticom dealer, or contact GTT technical service at 800-258-4610
or download a warranty & services request form at www.gtt.com. Outside of the United States, please contact
our headquarters in St. Paul, MN at 651-789-7333 for assistance in locating an authorized repair facility
servicing your country.
22. TERMINATION. Either party may terminate the Services for cause immediately upon written notice if the other
party is in material breach of these Terms, any schedules and/or Contract Documents and fails to cure within
thirty (30) days of receipt of a written demand to cure, or if the other party (a) is liquidated, dissolved, or
adjudged to be in a state of bankruptcy or receivership, (b) is insolvent, unable to pay its debts as they become
due, makes an assignment for the benefit of creditors or takes advantage of any law for the benefit of debtors,
(c) ceases to conduct business for any reason on an ongoing basis, leaving no successor in interest or (d) for
convenience, in which case Customer will be responsible to pay GTT for all Product and Services delivered, all
costs incurred by GTT that have not yet been amortized and any other operating expense incurred by GTT that
are specifically applicable to this Agreement.
23. OTHER. GTT reserves the right to publicly disclose Customer as a customer of GTT, without the need for
additional approval by Customer. Notwithstanding, case studies, personnel quotes and other references to
Customer will require explicit permission by Customer.
17
CONFIDENTIAL EXHIBIT B
Customer Information:
Name/Customer:
Address:
Billing Information:
Name/Customer:
Address:
Schertz Fire Rescue
1400 Schertz Parkway #8
Schertz, TX 78154
Order Form
Principal Contact Person
Title:
Phone:
Fax:
Email Address:
Greg Rodgers
Chief
979-229-6625
grodgers@schertz.com
Shipping Information (if different from billing):
Name/Customer:
Address:
ORDER DETAILS
Application Services: Whelen Cloud Platform, a cloud -based vehicle communication platform that sends and receives data through cellular
networks and provides the following functionality: fleet tracking, equipment configuration management and remote equipment control.
Subscription Term: The subscription period commences on the last date of signature below and, unless earlier terminated in accordance with
the terms and conditions of the Master Services Agreement, expires 12/31/2024 (the "Promotional Period"). Upon expiration of the Promotional
Period Customer's access to the Application Services may be continued upon execution of a subsequent order form. Without limiting the teens
and conditions set forth in the Master Services Agreement, the Promotional Period may be terminated at any time prior to expiration thereof by
either Party upon no less than thirty (30) days' prior written notice to the other Party.
Subscription Fees: There are no fees for Whelen Cloud Platform services within the Promotional Period (the "Promotional Rate"); provided
that the Promotion Rate is available to Customer for up to 100 vehicles or 25% of Customer's fleet, whichever is larger (the "Promotional
Cap"). If Customer will use the Application Services for a number of vehicles larger than the Promotional Cap, Customer must execute an
additional Order Form for such additional vehicles; additional fees and charges may apply.
Software:
10 Vehicles
Whelen Field Solutions Engineer: Christian Brewer, cbrewer(t—wwhelen.com, (860) 227-6544
Other Information: Whelen Engineering Company, hic. may offer additional services throughout the Promotional Period. Access to, or use
of, these additional services may require a separate fee to be determined by Whelen Engineering Company, Inc. and Customer may be required
to execute an additional Order Form to receive access to such additional services.
This order form (the "Order Form") is entered by and between Whelen Engineering Company, Inc. and the customer set forth on this Order
Form ("Customer") as of the last date of signature below. Each of Whelen Engineering Company, Inc. and Customer may be referred to herein
individually as a "Party" and collectively as the "Parties." The terms and conditions set forth in the Master Services Agreement attached
hereto, including all exhibits and attachments thereto (the "Master Services Agreement"), govern the relationship between the Parties with
respect to the Application Services ordered pursuant to this Order Form and are hereby incorporated herein by reference. By executing this
Order Form Customer accepts and is bound by the terms and conditions set forth in the Master Services Agreement.
The Parties have caused their duly authorized representatives to execute this Order Form as of the dates set forth below.
Customer
Signature
Name
Title
Date
Whelen En e7Tmg Company, Inc.
Signature
Name
Title
Date
CONFIDENTIAL EXHIBIT B
Master Services Agreement
This Master Services Agreement, including all exhibits and attachments hereto (collectively, this "Agreement") governs the relationship
between Whelen Engineering Company, Inc., ("Whelen") and the customer identified in the Order Form ("Customer") (each of Whelen and
Customer, a "Party" and together, the "Parties"). This Agreement will become effective when the Order Form referencing this Agreement is
executed by authorized representatives of both Parties (the "Effective Date").
1. DEFINITIONS. Certain capitalized terms, not defined
databases, electronic systems (including database management
elsewhere in this Agreement, have the meanings set forth below.
systems) and networks, of Customer or any of its designees.
1.1. "Access Protocols" means the passwords, access
1.8. "Intellectual Property Rights" means any and all now
codes, technical specifications, connectivity standards or
known or hereafter existing (a) rights associated with works of
protocols, or other relevant procedures, as may be necessary to
authorship throughout the universe, including exclusive
allow Customer to access the Application Services.
exploitation rights, copyrights, Moral Rights, and mask works; (b)
1.2. "Application Documentation" means the user manuals,
trademark and trade name rights; (c) trade secret rights; (d) patents,
published specifications, online guides, and other materials and
designs, algorithms, and other industrial property rights; (e) other
documentation provided to Customer or Authorized Users by
intellectual property and proprietary rights of every kind and nature
Whelen or its third party vendors relating to the Application
throughout the universe, whether arising by operation of law, by
Services, as may be changed from time to time with or without
contract or license, or otherwise; and (f) all registrations,
notice to Customer.
applications, renewals, extensions, combinations, divisions, or
1.3. `Application Services" means the hosted software -as-
reissues of the foregoing.
a -service services ordered by Customer hereunder as set forth in
1.9. "Moral Rights" means any right to claim authorship of
the Order Form and provided by Whelen by means of access to
a work, any right to object to any distortion or other modification
certain content and use of the features and functionality of software
of a work, and any similar right, existing under the law of any
applications available and accessible within the website designated
country in the world, or under any treaty.
by Whelen, solely to the extent set forth and further described in,
1.10. "Objectionable Content" means any viruses, malware,
and as limited by, the applicable terms of this Agreement.
spyware, or similar harmful, destructive, or malicious code, as well
1.4. `Authorized User" means any individual who is an
as any content or links to web sites that contain content (or further
employee, consultant, contractor, or agent of Customer who is
links to content) which may be construed as illegal, unethical,
authorized by Customer, to access and use the Application
defamatory, obscene, hateful, libelous, or that otherwise may
Services pursuant to Customer's rights, and subject to the
reflect negatively upon Whelen's reputation or that of Whelen's
restrictions, under this Agreement.
customers or vendors, or that infringes upon the rights of any third
1.5. "Confidential Information" means all written or oral
party.
information, disclosed by either Party to the other, related to the
1.11. "Services" means the Application Services and Support
business or operations of either Party or a third party that has been
Services,
identified as confidential or proprietary or that by the nature of the
1.12. "Third Party Items" means third party data, products,
circumstances surrounding disclosure ought reasonably to be
and services made available to Customer through the Application
treated as confidential or proprietary, regardless of whether such
Services, as may be changed from time to time by Whelen in its
information was disclosed intentionally or unintentionally or
sole discretion.
marked as "confidential" or "proprietary", including, without
1.13. "Third Party Terms" means the terms and conditions
limitation: (a) source and object code, prices, trade secrets, mask
that govern use of Third Party Items.
works, databases, hardware, software, designs and techniques,
2. SUBSCRIPTION; SERVICES
programs, engine protocols, models, displays and manuals, and the
2.1. Order Form. Customer has requested a subscription to
selection, coordination, and arrangement of the contents of such
the Application Services on the terms and subject to the conditions
materials, and (b) any unpublished information concerning
set forth in this Agreement by executing an Order Form that
research activities and plans, customers, marketing or sales plans,
references and incorporates this Agreement ("Order Form").
sales forecasts or results of marketing efforts, pricing or pricing
2.2. Application Services
strategies, costs, operational techniques, strategic plans, and
(a) Provision of Access. Subject to the terms and
unpublished financial information, including information
conditions contained in the Order Form and this Agreement, and
concerning revenues, profits, and profit margins.
Customer's payment of all relevant fees, Whelen hereby grants to
1.6. "Customer Content" means all data, media, content,
Customer and its Authorized Users a non-exclusive, non -
and other information provided or made available by Customer to
transferable right to access the features and functions of the
Whelen, including any data, media, content, and other information
Application Services during the Term in accordance with the
input, made available or included in, any communications sent
Application Documentation, the Order Form, and the terms and
through the Application Services, including vehicle identifiable
conditions of this Agreement solely for Customer's internal
data which may include precise geolocation information collected
business purposes. As soon as commercially practicable after the
through global positioning system or similar technologies relating
Effective Date, Whelen shall provide to Customer the necessary
to one or more vehicles owned or leased by Customer and used by
Access Protocols.
its employees, consultants, contractors, agents or other users it
(b) Usage Restrictions. Customer and its Authorized Users
authorizes, including Authorized Users. Customer Content does
may only use the Application Services as described in this
not include aggregated or anonymized data derived from Customer
Agreement and in the then -current Application Documentation.
Content or Customer's use of the Services, provided that Whelen
Customer is responsible for ensuring its Authorized Users comply
only uses such aggregated or anonymized data for internal
with all relevant terms of this Agreement and any failure to comply
purposes.
will constitute a breach by Customer. Customer will not, and will
1.7. "Customer Systems" means Customer's information
not allow any Authorized User or other third party to, (i)
technology infrastructure, including the computers, software,
decompile, disassemble, reverse engineer, or otherwise attempt to
obtain, perceive, or derive the trade secrets embodied in the
CONFIDENTIAL EXHIBIT B
Application Services or the source code from which any software
component of the Application Services are compiled or interpreted,
and Customer acknowledges that nothing in this Agreement will
be construed to grant Customer or any Authorized User any right
to obtain or use such code; (ii) create any derivative product from
any of the foregoing, or use the Application Services or any of
Whelen's Confidential Information to develop or build, exploit,
sell or offer to sell, license or offer to license, or use a competing
product or service, except with the express prior written consent of
Whelen; (iii) allow third parties other than Authorized Users to
gain access to the Application Services or use the Application
Services as a service bureau; (iv) assign, sublicense, sell, resell,
lease, rent or otherwise transfer or convey, or pledge as security or
otherwise encumber, Customer's rights under this Agreement; (v)
remove any copyright, trademark, proprietary rights, disclaimer, or
warning notice included on or embedded in any part of the
Application Documentation and/or Application Services,
including any screen displays, etc., or any other products or
materials provided by Whelen hereunder; (vi) access the
Application Services for purposes of monitoring availability,
performance, or functionality of the Application Services,
performing security penetration tests or stress tests on the
Application Services, or for any other benchmarking or
competitive purposes; (vii) do anything that could disable,
overburden, or impair the proper working or appearance of the
Application Services; or (viii) use the Services or Application
Documentation in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual property
right or other right of any person, or that violates any applicable
law. Unless otherwise specifically agreed by the Parties in writing,
Customer hereby agrees that the Application Services are not
authorized for use as, and Customer shall not use the Application
Services as critical components in any device, application, system,
or service where it is reasonably foreseeable that failure of the
Application Services would cause death, bodily injury or
catastrophic property damage, such as (x) any medical, life-saving
or life support device, system, or service, (y) any air or other traffic
control device, application, system, or service, or (z) any weapons
device, application, system, or service (the "Life Critical
Applications"). Certain features of the Application Services may
allow Customer or Authorized Users to connect and/or permit
communication with one or more vehicles or equipment in one or
more vehicles (each a "Connected Vehicle"). Customer
acknowledges and agrees that at any time the information provided
by the Application Services with respect to a Connected Vehicle
may be incomplete, incorrect, or out of date. Except as otherwise
set forth herein, Customer's use of the Application Services,
including Customer's or its Authorized Users reliance on any
information provided by the Application Services with respect to
any Connected Vehicle is at Customer's sole risk and discretion.
Customer and its Authorized Users are solely responsible at all
times for the acts or omissions of Customer's Authorized Users
with respect to Connected Vehicles. Use of the Application
Services does not relieve Customer or any Authorized User of
responsibility for safe vehicle operation or observation of relevant
traffic laws. If safe operation of a Connected Vehicle is not
possible while using the Application Services, the Authorized User
should not use the Application Services while operating the
Connected Vehicle. Further, use of the Application Services does
not relieve Customer or any Authorized User of responsibility for
vehicle maintenance. Notwithstanding anything to the contrary
herein, Whelen shall have no responsibility or liability for any
failure of Customer or any Authorized User to safely operate or
properly maintain a Connected Vehicle. Customer will ensure that
its and its Authorized Users' access to and use of the Application
Services and the Application Documentation complies with all
applicable laws, statutes, regulations, and rules. Under no
circumstances will Whelen be liable or responsible for any use, or
any results obtained by the use, of the Application Services in
conjunction with any products, services, software, or hardware that
are not provided by Whelen. All such use will be at Customer's
sole risk and Customer shall bear full responsibility for liability
with respect thereto. Whelen reserves all rights not expressly
granted to Customer in this Agreement.
(c) Third Party Terms. The Application Services may
provide Customer with access to Third Party Items. Customer
acknowledges and agrees that certain Third Party Terms may apply
with respect to the Third Party Items. Whelen will use
commercially reasonable efforts to identify any applicable Third
Party Terms and Customer shall be responsible for compliance
with such Third Party Terms to the extent any are identified by
Whelen.
(d) Communications Responsibilities. Customer shall not,
and shall not permit its Authorized Users or any third party to,
directly or indirectly use the Application Services to communicate
on its behalf, by way of electronic communication or otherwise,
any message or material that (a) is libelous, harmful to minors,
obscene, or constitutes pornography; (b) infringes the copyrights,
patents, trade secrets, trademarks, trade names, or other proprietary
rights of a third party, or is otherwise unlawful; or (c) would
otherwise give rise to civil liability, or that constitutes or
encourages conduct that could constitute a criminal offence, under
any applicable law or regulation. Customer is solely responsible
for the content of any communications sent by or on behalf of
Customer or its Authorized Users through Customer's or any
Authorized Users' use of the Application Services and, without
limiting the foregoing, Customer agrees that such communications
will comply with all laws.
(e) Future Function alities. From time to time Whelen, in
its sole discretion, may offer new or additional features subject to
the payment of additional fees. Such new or additional features
may not be made available to all customers of Whelen. Customer
agrees that its purchase of a subscription to the Application
Services is neither contingent upon the delivery of any future
functionality or features nor dependent upon any oral or written
public comments made by Whelen with respect to future
functionality or features.
2.3. Support Services; Updates. Whelen will provide
support services for the Application Services in accordance with
its standard support offerings during Whelen's regular business
hours solely for the particular Application Services ordered under
this Agreement ("Support Services"), provided that all fees due
under this Agreement have been paid. Such Support Services will
only be provided to Customer's administrative users (who are
Authorized Users) and Customer will identify by written notice to
Whelen in accordance with Section 13.3 the names of such
administrative users to whom Whelen will supply the support,
which names may be changed by Customer upon reasonable notice
to Whelen. Customer can request Support Services by contacting
the applicable Whelen Field Solutions Engineer identified in the
Order Form. Any support requested by Customer in excess of
Whelen's standard support offerings or outside of Whelen's
regular business hours may incur additional fees that will be billed
to client pursuant to Whelen's standard billing practices at
Whelen's then -current pricing. The Parties acknowledge and agree
that Whelen will have no obligation to provide support to
Customer with respect to use of the Application Services other than
according to the then -current Application Documentation or the
terms of this Agreement. Customer acknowledges that the
Application Services may be updated by Whelen from time to time
and that updates may result in changes to the Application Services,
including changes in the appearance, functionality, and/or the
CONFIDENTIAL EXHIBIT B
addition, modification, or removal of functionality or
features. Whelen shall provide reasonable prior notice to
Customer of any updates that are intended to result in the removal
of any material functionality or feature.
3. PROPRIETARY RIGHTS
3.1. Ownership of Application Services. Subject to the
express rights granted to Customer in this Agreement, and
Customer's rights in its Customer Content as set forth herein,
Whelen and its licensors and suppliers retain all right, title, and
interest in and to the Application Services, including any upgrades,
enhancements, new releases, changes, or modifications made to the
Application Services performed in connection with this
Agreement, together with all Intellectual Property Rights
embodying the Application Services or related thereto, and
Customer acknowledges that it neither owns nor acquires any right,
title, or interest in or to the Application Services or the related
Intellectual Property Rights not expressly granted by this
Agreement. Customer will preserve all Services from any liens,
encumbrances, and claims of any individual or entity. Customer
will not use any Confidential Information disclosed by Whelen to
Customer in connection with this Agreement to contest the validity
of any Intellectual Property Rights of Whelen or its licensors. Any
such use of Whelen's Confidential Information will constitute a
material, non -curable breach of this Agreement.
3.2. Data Rights.
(a) Customer Content.
(i) Customer has and will retain sole responsibility for
all Customer Content, including, the collection, accuracy,
currency, quality, legality, completeness, and use of the Customer
Content, and including Customer Content that is transmitted,
processed, stored, accessed, and/or used by or on behalf of
Customer or any Authorized User through or in connection with
the Application Services. For the avoidance of doubt, Customer is
solely responsible for providing any legally required notices and
obtaining any legally required consents from Authorized Users or
other individuals about whom information, including Customer
Content or Usage Data (see below), may be collected by,
transferred to, received, or otherwise used by Whelen or Customer
in conjunction with the Application Services. Customer shall not
provide or make available to Whelen any Objectionable Content in
connection with this Agreement.
(ii) Except for the licenses granted under this Agreement, as
between the Parties, Customer retains all right, title, and interest in
and to the Customer Content and any usage data generated by
Whelen in the performance of the Services ("Usage Data"), and
Whelen acknowledges that it neither owns nor acquires any
additional rights in and to the Customer Content and Usage Data
not expressly granted by this Agreement. Whelen further
acknowledges that Customer retains the right to use the Customer
Content for any purpose in Customer's sole discretion. Subject to
the foregoing, Customer hereby grants to Whelen and its third
party service providers a non-exclusive, irrevocable, world-wide,
fully -paid -up, royalty -free right and license to use the Customer
Content and Usage Data to perform Whelen's obligations
hereunder. In addition to sharing Customer Content with its
service providers, Whelen may disclose Customer Content to other
entities with whom it partners to create customer offerings that are
part of, or in addition to, the Application Services, including jointly
branded offerings available to Customer. The Parties further
acknowledge and agree that no valuable consideration, monetary
or otherwise, is being provided by Whelen to Customer in
exchange for Customer Content and Usage Data. However, in
addition to the uses of Customer Content authorized in this
Agreement, Whelen may remove all personally identifiable and
vehicle identifiable information from the Customer Content and
Usage Data to create "Sanitized Data" or aggregate the Customer
Content and Usage Data in an anonymous or deidentified manner
to create "Aggregate Data." Customer grants Whelen a perpetual,
non-exclusive, world-wide, fully -paid -up, royalty -free,
sublicensable, transferable right and license to commercialize and
otherwise use the Sanitized Data and the Aggregate Data to
perform Whelen's obligations hereunder and for Whelen's
business purposes (which, for clarity, includes but is not limited to
enhancing or improving the Services or other products and services
of Whelen or its affiliates, and for analytical and marketing
purposes). Customer also grants Whelen the right to disclose the
Customer Content to Whelen's third party service providers and
grant such third party service providers the right (i) to use the
Customer Content to perform the applicable service and (ii) to use
the Sanitized Data and Aggregate Data for Whelen's or such third
party's internal business purposes. Notwithstanding the foregoing,
nothing in this Section 3.2 shall limit Whelen's rights to comply
with the order of a court or other governmental body, or as
otherwise necessary to comply with applicable law or to address
an emergency situation or as set forth in Section 7.3 below. For all
of the purposes above, Customer consents to Whelen's tracking of
Customer owned or leased vehicles through global positioning
system technology as Customer understands such tracking is part
of the Application Services. Customer shall not include within the
Customer Content any personally or individually identifiable
information of any natural person ("Plf'). The inclusion of PII
within the Customer Content may be considered by Whelen to be
a material breach of this Agreement in accordance with Section
11.2 hereof. Customer acknowledges and agrees that it is solely
responsible for compliance with the requirements of this Section
and that Whelen has no affirmative obligation to review or audit
Customer's compliance with this Section. Whelen shall have no
obligations whatsoever in the event Customer includes PII in the
Customer Content, including but not limited to with respect to
notifications.
(b) Data Models. Notwithstanding anything to the contrary
in this Agreement, to the extent that Whelen develops models,
analytics, and/or algorithms ("Analytical Tools") during the Term
and in the course of providing Services under this Agreement (such
as propensity models, etc.), Whelen shall retain all right, title, and
interest in and to such Analytical Tools.
(c) Feedback. Customer may provide suggestions,
comments, or other feedback (collectively, "Feedback") to
Whelen with respect to its products and services, including the
Services. Feedback is voluntary. Whelen may use Feedback for
any purpose without obligation of any kind. To the extent a license
is required under Customer's Intellectual Property Rights to make
use of the Feedback, Customer grants Whelen a non-exclusive,
perpetual, irrevocable, world-wide, fully -paid -up, royalty -free
license to use the Feedback in connection with Whelen's business,
including the enhancement of the Services.
4. ADDITIONAL WHELEN OBLIGATIONS
4.1. Access to Application Services; Implementation.
The applicable Whelen Field Solutions Engineer identified in the
Order Form will provide reasonable assistance to Customer to
enable initial access to Customer's account, but Whelen is not
responsible for any implementation, supplementation,
modification, or configuration of Customer Systems or equipment,
or the Application Services, for or on behalf of Customer.
4.2. Responsibility for Application and Content Hosting.
Whelen shall, at its own expense, provide for the hosting of the
Application Services which is accessible as part of the Application
Services, provided that nothing herein shall be construed to require
Whelen to provide for, or bear any responsibility with respect to,
any telecommunications or computer network hardware required
by Customer to provide access from the Internet to the Application
Services. Customer and Authorized Users are solely responsible
CONFIDENTIAL EXHIBIT B
for all telecommunication or Internet connections required to
access the Services, as well as all Customer Systems and other
hardware and software at Customer's site. Except for the costs to
Whelen for the hosting of the Application Services as set forth
above, in addition to other third party costs that may apply,
Customer agrees to pay for all telecommunications, Internet, and
other connectivity costs, fees, and services required for and
dedicated to Customer's access to the Services.
4.3. Third Party Hosting Provider Requirements.
Customer understands and agrees that (i) Whelen uses a third -party
hosting provider in connection with the Services; (ii) the security
of the Services is limited by the terms offered by such third -party
hosting provider; and (iii) Whelen's agreement with the hosting
provider cannot be modified regarding the requirements of this
Agreement, nor can Whelen grant any audit or other access rights
to the facilities or systems of the host. As such, the provisions of
this Agreement shall apply only to Whelen's systems and facilities,
not those of the hosting provider.
5. ADDITIONAL CUSTOMER OBLIGATIONS.
5.1. Authorized Users' Access to Services. Customer may
permit any Authorized Users to access and use the features and
functions of the Application Services as contemplated by this
Agreement. Customer will ensure that any such Authorized Users
will be obligated, by contract or otherwise, to protect Whelen's
Confidential Information, and to comply with the access and use
restrictions for the Application Services and the Application
Documentation, as are provided by the terms hereof.
5.2. Provision of Support to Authorized Users. Except as
expressly set forth in Section 2.3, Customer will provide all
maintenance and technical support services as may be required by
its Authorized Users, with respect to provision of access to, and
use of, the Application Services.
5.3. Customer Control and Responsibility for Data,
Access, and Security. Customer and its Authorized Users shall
have access to the Customer Content and Customer shall be
responsible for all changes to and/or deletions of Customer
Content. Furthermore, Customer has and will retain sole
responsibility for: (a) the security and use of all of Customer's and
its Authorized Users' passwords and other Access Protocols;
(b) all information, instructions, and materials provided by or on
behalf of Customer or any Authorized User in connection with the
Services; (c) Customer Systems; and (d) all access to and use of
the Services and Application Documentation directly or indirectly
by or through the Customer Systems or its or its Authorized Users'
passwords or other Access Protocols, with or without Customer's
knowledge or consent, including all results obtained from, and all
conclusions, decisions, and actions based on, such access or use.
Customer shall employ all physical, administrative, and technical
controls, screening, and security procedures and other safeguards
necessary to securely administer the distribution and use of all
Access Protocols and protect against any unauthorized access to or
use of the Application Services.
6. FEES AND EXPENSES; PAYMENTS.
6.1. Fees. In consideration for the access and use rights
granted to Customer and the Services performed by Whelen under
this Agreement, Customer will pay to Whelen without offset or
deduction, all fees set forth in the Order Form (or Whelen's then -
current pricing as applicable for certain support services as set forth
herein) invoiced in accordance with this Section 6.1. Whelen will
submit invoices to Customer with respect to such fees, and each
invoiced amount will be due and payable within thirty (30) days of
Customer's receipt of the relevant invoice. All fees are non -
cancelable and non-refundable.
6.2. Price Escalations. Whelen shall have the right to
increase the fees for the Services at any time after the Effective
Date to reflect any increase in Whelen's costs to provide the
Services. Whelen shall provide Customer with written notice of
such price adjustments at least thirty (30) days prior to the date any
such price adjustment is to become effective. If Customer does not
agree to such increase in fees, Customer may terminate this
Agreement with written notice to Whelen effective upon the day
prior to the date that such price adjustment would have taken effect.
6.3. Taxes. Customer will be responsible for payment of
any applicable sales, use, and other taxes and all applicable export
and import fees, customs duties, and similar charges (other than
taxes based on Whelen's income), and any related penalties and
interest for the grant of access rights hereunder, or the delivery of
related services. Customer will make all required payments to
Whelen free and clear of, and without reduction for, any
withholding taxes. Any such taxes imposed on payments to
Whelen will be Customer's sole responsibility, and Customer will,
upon Whelen's request, provide Whelen with official receipts
issued by appropriate taxing authorities, or such other evidence as
Whelen may reasonably request, to establish that such taxes have
been paid. Customer shall supply Whelen with documentation
evidencing Customer's exemption from taxation if applicable.
6.4. Late Payments; Interest. Any portion of any amount
payable hereunder that is not paid when due will accrue interest at
one and one-half percent (1.5%) per month or the maximum rate
permitted by applicable law, whichever is less, from a date thirty
(30) days after the due date until paid. In the event any invoice
remains unpaid forty-five (45) or more days from the due date,
Whelen may, in its discretion, suspend the Services until the
invoice is paid in full.
6.5. Auditing Rights and Required Records. Customer
agrees to maintain complete and accurate records in accordance
with generally accepted accounting principles during the Term and
for a period of two (2) years after the termination or expiration of
this Agreement with respect to matters necessary for accurately
determining amounts due hereunder. Whelen may, at its own
expense, on reasonable prior notice, periodically inspect and audit
Customer's records with respect to matters covered by this
Agreement, provided that if such inspection and audit reveals that
Customer has underpaid Whelen with respect to any amounts due
and payable during the Term, Customer shall promptly pay the
amounts necessary to rectify such underpayment, together with
interest in accordance with Section 6.3. Customer shall pay for the
costs of the audit if the audit determines that Customer's
underpayment equals or exceeds ten percent (10%) for any quarter.
Such inspection and auditing rights will extend throughout the
Term of this Agreement and for a period of two (2) years after the
termination or expiration of this Agreement.
7. TREATMENT OF CONFIDENTIAL INFORMATION.
7.1. Ownership of Confidential Information. The Parties
acknowledge that during the performance of this Agreement, each
Party will have access to certain of the other Party's Confidential
Information or Confidential Information of third parties that the
disclosing Party is required to maintain as confidential and/or
proprietary. Both Parties agree that all items of Confidential
Information are confidential and/or proprietary to the disclosing
Party or such third party, as applicable, and will remain the sole
property of the disclosing Party or such third party.
7.2. Mutual Confidentiality Obligations. Each Party
agrees as follows: (a) to use Confidential Information disclosed by
the other Party only for the purposes of meeting its obligations or
exercising its rights under this Agreement; (b) that such Party will
not reproduce Confidential Information disclosed by the other
Party, and will hold in confidence and protect such Confidential
Information from dissemination to, and use by, any third party
except as necessary for the purposes of meeting its obligations or
exercising its rights under this Agreement; (c) to restrict access to
the Confidential Information disclosed by the other Party to such
CONFIDENTIAL EXHIBIT B
of its personnel, agents, and/or consultants, if any, who have a need
to have access for the purposes of meeting its obligations or
exercising its rights under this Agreement and who have been
advised of and have agreed in writing to treat such information in
accordance with terms substantially similar to the terms of this
Agreement; and (d) subject to Section 12, to the extent practicable
and except to the extent the receiving Party has continuing rights
with respect to such Confidential Information, return or destroy, all
Confidential Information disclosed by the other Party that is in its
possession upon termination or expiration of this Agreement for
any reason, provided that to the extent a Party retains Confidential
Information of the other Party as permitted under this part (d) such
Party shall maintain the confidentiality of such retained
Confidential Information for so long as it is retained.
7.3. Confidentiality Exceptions. Notwithstanding the
foregoing, the provisions of Sections 7.1 and 7.2 will not apply to
Confidential Information that (a) is publicly available or in the
public domain at the time disclosed; (b) is or becomes publicly
available or enters the public domain through no fault of the
recipient; (c) is rightfully communicated to the recipient by persons
not bound by confidentiality obligations with respect thereto; (d) is
already in the recipient's possession free of any confidentiality
obligations with respect thereto at the time of disclosure; (e) is
independently developed by the recipient without reference to the
Confidential Information of the discloser; or (f) is approved in
writing for such use, release or disclosure by the disclosing Party.
Notwithstanding the foregoing, each Party may disclose
Confidential Information to the limited extent required (x) in order
to comply with the order of a court or other governmental body, or
as otherwise necessary to comply with applicable law, provided
that the Party making the disclosure pursuant to the order shall first
have given written notice to the other Party to enable the other
Party to attempt to obtain a protective order; or (y) to establish a
Party's rights under this Agreement, including to make such court
filings as it may be required to do. Notwithstanding any such
compelled disclosure by the receiving Party, such compelled
disclosure will not otherwise affect the receiving Parry's
obligations hereunder with respect to Confidential Information so
disclosed.
7.4. Non -Exclusive Equitable Remedy. Customer
acknowledges and agrees that due to the unique nature of Whelen's
Confidential Information, there is no adequate remedy at law for
any breach of its obligations hereunder, that any such breach or
threatened breach may allow Customer or third parties to unfairly
compete with Whelen, resulting in irreparable harm to Whelen, and
therefore, that upon any such breach or any threat thereof, Whelen
shall be entitled to appropriate equitable and injunctive relief from
a court of competent jurisdiction without the necessity of proving
actual loss or posting a bond, in addition to whatever remedies
Whelen might have at law or in equity under this Agreement. Any
breach of this Section 7 by Customer or an Authorized User will
constitute a material breach of this Agreement and be grounds for
iminediate termination of this Agreement in the exclusive
discretion of Whelen.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Mutual Representations and Warranties. Each
Party hereby represents and warrants (a) that it is duly organized,
validly existing, and in good standing under the laws of its
jurisdiction of incorporation or organization; (b) that the execution
and performance of this Agreement will not conflict with or violate
any provision of any law having applicability to such Party; and
(c) that this Agreement, when executed and delivered, will
constitute a valid and binding obligation of such Party and will be
enforceable against such Party in accordance with its terns.
8.2. Whelen Representations and Warranties. Whelen
hereby represents and warrants that (a) Whelen will use
commercially reasonable efforts to prevent the transmission of any
virus or malicious code through the Application Services; (b) as
accessed and used by Customer or any Authorized User in
accordance with this Agreement, the Application Services will
perform substantially in accordance with the Application
Documentation; and (c) the Support Services will be performed in
a professional and workmanlike manner in accordance with
generally accepted industry standards and practices for similar
services using personnel with the requisite skill, experience, and
qualifications.
8.3. Customer Representations and Warranties.
Customer hereby represents and warrants that (a) Customer has
and will have all necessary licenses, approvals, and consents
required to perform its obligations hereunder, (b) without limiting
the foregoing, Customer has and will have adequate authority to
share the Customer Content with Whelen as set forth herein and
permit Whelen to use and disclose the Customer Content as
contemplated herein, and (c) any Customer Content provided by
Customer to Whelen for use in connection with the Services does
not and will not infringe the intellectual property, publicity, or
privacy rights of any person and is not defamatory, obscene, or in
violation of applicable foreign, federal, state, municipal, and local
laws, rules, regulations, and judicial orders (including, but not
limited to, applicable policies, laws, and orders related to
spamming, privacy, and consumer protection).
9. DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS
OF LIABILITY.
9.1. Disclaimer. EXCEPT AS EXPRESSLY
REPRESENTED OR WARRANTED IN SECTION 8, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE APPLICATION SERVICES, THE APPLICATION
DOCUMENTATION, AND ALL SERVICES ARE PROVIDED
"AS IS" AND "AS -AVAILABLE", WITH ALL FAULTS, AND
WHELEN DISCLAIMS ANY AND ALL OTHER PROMISES,
REPRESENTATIONS, AND WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON -
INFRINGEMENT, QUIET ENJOYMENT, SYSTEM
INTEGRATION, AND/OR DATA ACCURACY. NO ORAL OR
WRITTEN INFORMATION OR ADVICE GIVEN BY
WHELEN OR ITS AUTHORIZED REPRESENTATIVES
(INCLUDING FIELD SOLUTIONS ENGINEERS) WILL
CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF WHELEN'S OBLIGATIONS HEREUNDER.
WHELEN DOES NOT WARRANT THAT THE APPLICATION
SERVICES OR ANY OTHER SERVICES WILL MEET
CUSTOMER'S REQUIREMENTS OR THAT THE
OPERATION OF THE APPLICATION SERVICES WILL BE
UNINTERRUPTED OR ERROR -FREE, OR THAT ALL
ERRORS WILL BE CORRECTED. THE SERVICES MAY BE
USED TO ACCESS AND TRANSFER INFORMATION OVER
THE INTERNET. CUSTOMER ACKNOWLEDGES AND
AGREES THAT WHELEN AND ITS VENDORS AND
LICENSORS DO NOT OPERATE OR CONTROL THE
INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN
HORSES, OR OTHER UNDESIRABLE DATA OR
SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G.,
HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND
DAMAGE CUSTOMER CONTENT, CUSTOMER'S DATA, OR
CUSTOMER SYSTEMS. WHELEN WILL NOT BE
RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS
RESPONSIBLE FOR PRESERVING AND MAKING
ADEQUATE BACKUPS OF ITS DATA AND CUSTOMER
CONTENT.
CONFIDENTIAL EXHIBIT B
9.2. Exclusions of Remedies; Limitation of Liability.
EXCEPT WITH RESPECT TO CUSTOMER'S BREACH OF
SECTION 2.2 AND EACH PARTY'S INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 10, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES,
REGARDLESS OF THE NATURE OF THE CLAIM,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS,
COSTS OF DELAY, ANY FAILURE OF DELIVERY,
BUSINESS INTERRUPTION, COSTS OF LOST OR
DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES
TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN
IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT WITH RESPECT TO
CUSTOMER'S BREACH OF SECTION 2.2 AND EACH
PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH
IN SECTION 10, THE CUMULATIVE LIABILITY OF EACH
PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING
FROM OR RELATING TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY CAUSE OF ACTION
SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY,
WILL NOT EXCEED THE GREATER OF (1) THE TOTAL
AMOUNT OF ALL FEES PAID TO WHELEN BY CUSTOMER
UNDER THIS AGREEMENT DURING THE TWELVE (12)-
MONTH PERIOD PRIOR TO THE ACT, OMISSION OR
OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (II)
TEN THOUSAND DOLLARS ($10,000). THESE
LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS
OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE
PROVEN INEFFECTIVE OR THERE IS AN ADEQUATE
REMEDY AVAILABLE.
9.3. Essential Basis of the Agreement. Customer
acknowledges and understands that the disclaimers, exclusions,
and limitations of liability set forth in this Section 9 form an
essential basis of the agreement between the Parties, that the
Parties have relied upon such disclaimers, exclusions, and
limitations of liability in negotiating the terms and conditions in
this Agreement, and that absent such disclaimers, exclusions, and
limitations of liability, the terms and conditions of this Agreement
would be substantially different.
10. INDEMNIFICATION.
10.1. Whelen's Indemnity Obligations. Whelen agrees to
indemnify, defend, and hold harmless Customer from and against
any and all losses, liabilities, costs (including reasonable attorneys'
fees) or damages finally awarded by a court or agreed upon in
settlement ("Damages") resulting from any claim by any third
party (a) that Customer's licensed use of the Application Services
and/or the Application Documentation in accordance with the
terms and conditions of this Agreement infringes such third party's
U.S. patents issued as of the Effective Date, or infringes or
misappropriates, as applicable, such third parry's copyrights or
trade secret rights under applicable laws of any jurisdiction within
the United States of America, or (b) arising out of Whelen's gross
negligence or willful misconduct. Customer shall promptly notify
Whelen in writing of the claim, cooperate with Whelen, and allow
Whelen sole authority to control the defense and settlement of such
claim; provided that Whelen will not settle any third -party claim
against Customer unless such settlement completely and forever
releases Customer from all liability with respect to such claim or
unless Customer consents to such settlement, and further provided
that Customer will have the right, at its option, to defend itself
against any such claim or to participate in the defense thereof by
counsel of its own choice at its own cost. If a claim for
infringement is made or appears possible, Whelen may, at
Whelen's sole discretion, obtain adequate rights to enable
Customer to continue to use the Application Services, or modify or
replace any such infringing material to make it non -infringing. If
Whelen determines that none of these alternatives is reasonably
available, Customer shall, upon written request from Whelen,
cease use of, and, if applicable, return, such materials as are the
subject of the infringement claim. The indemnification for
infringement provided under this Section 10.1 shall not apply if the
alleged infringement arises, in whole or in part, from (i)
modification of the Application Services or the Application
Documentation by Customer, (ii) combination, operation, or use of
the Application Services with other software, hardware, or
technology not provided by Whelen or explicitly contemplated by
this Agreement, (iii) use of the Application Services not in
accordance with the Application Documentation or this
Agreement, or (iv) the Customer Content (any of the foregoing
circumstances under clauses (i), (ii), (iii) and (iv) a "Customer
Indemnity Responsibility"). THIS SECTION STATES
WHELEN'S AND ITS LICENSORS AND SUPPLIERS SOLE
AND EXCLUSIVE OBLIGATIONS AND LIABILITY WITH
RESPECT TO ANY CLAIM OF INFRINGEMENT ARISING
OUT OF OR RELATING TO THE SERVICES OR THIS
AGREEMENT AND ARE IN LIEU OF ANY IMPLIED
WARRANTIES OF NON -INFRINGEMENT, ALL OF WHICH
ARE EXPRESSLY DISCLAIMED_
10.2. Customer's Indemnity Obligations. Customer agrees
to hold harmless, indemnify, and, at Whelen's option, defend
Whelen from and against any Damages resulting from (a) breach
by Customer or its Authorized Users of any tern or condition of
this Agreement, (b) Customer's gross negligence or willful
misconduct, (c) Whelen's use of the Customer Content as
permitted herein, (d) use of the Application Services in Life
Critical Applications, (e) personal injury or damage to Whelen
property arising at the Customer's location, or (f) a Customer
Indemnity Responsibility. Whelen shall promptly notify Customer
of the claim, cooperate with Customer, and, if elected by Whelen,
allow Customer sole authority to control the defense and settlement
of such claim; provided that Customer will not settle any third -
party claim against Whelen unless such settlement completely and
forever releases Whelen from all liability with respect to such
claim or unless Whelen consents to such settlement, and further
provided that Whelen will have the right, at its option, to defend
itself against any such claim or to participate in the defense thereof
by counsel of its own choice at its own cost.
11. TERM AND TERMINATION.
11.1. Term of the Agreement. The term of this Agreement
will commence on the Effective Date and will continue for the
duration set forth in the Order Form (the "Term"). The Term may
be extended or renewed by mutual written agreement of the Parties.
11.2. Termination for Breach. Either Party may terminate
this Agreement in the event of a material breach by the other Party,
by providing written notice to the breaching Party, specifically
identifying the breach on which such notice of termination is
based. The breaching Party will have a right to cure such breach
within thirty (30) days of receipt of such notice, and this
Agreement will terminate in the event that such cure is not made
within such thirty (30)-day period.
11.3. Termination Upon Bankruptcy or Insolvency.
Either Party may, at its option, terminate this Agreement
immediately upon written notice to the other Party, in the event
that (a) the other Party becomes insolvent or unable to pay its debts
when due; (b) the other Party files a petition in bankruptcy,
reorganization or similar proceeding, or, if filed against, such
petition is not removed within ninety (90) days after such filing;
(c) the other Party discontinues it business; or (d) a receiver is
CONFIDENTIAL EXHIBIT B
appointed or there is an assignment for the benefit of such other
Parry's creditors.
11.4. Additional Whelen Termination and Suspension
Rights. Upon written notice to Customer, Whelen may suspend or
terminate this Agreement, in whole or in part, with respect to the
Application Services (or certain features thereof) if any Third Party
Item made available through the Application Services or Whelen's
right to use such Third Party Item, expires or is terminated or is
modified in any manner that Whelen believes would impair its
ability to provide such Application Services. In addition, Whelen
reserves the right, in its sole discretion, to suspend Customer's
access to any Application Services (i) upon notice to Customer if
Whelen reasonably suspects that Customer has breached this
Agreement; or (ii) for any of the following reasons: (a) to prevent
damages or risk to, or degradation of, the Application Services; (b)
to comply with any law, regulation, court order, or other
governmental request; (c) to otherwise protect Whelen from
potential legal liability; or (d) in the event an invoice remains
unpaid for forty-five (45) or more days from the invoice due date,
and Whelen will use reasonable efforts to provide Customer with
notice prior to or promptly following any such suspension of the
Application Services pursuant to the foregoing ((a)-(d)). Whelen
will promptly restore access to the Application Services as soon as
the event giving rise to suspension has been resolved. Any
suspension of the Services will not result in the tolling or any
extension of the Term to account for the period of such suspension
and Whelen will have no liability for any damage, liabilities, losses
(including any loss of data or profits), or any other consequences
that Customer or any Authorized User may incur as a result of such
suspension. This Section will not be construed as imposing any
obligation or duty on Whelen to monitor use of the Application
Services.
11.5. Effect of Termination. Upon any expiration or earlier
termination of this Agreement, Customer will (a) immediately
discontinue all use of the Application Services and any Whelen
Confidential Information; and (b) promptly pay to Whelen all
amounts due and payable under this Agreement. Termination of
this Agreement prior to expiration of the Term shall not affect any
other agreement between Whelen and Customer in place at the time
of such termination, and Customer shall remain responsible for the
payment of any amounts due to Whelen or its designee pursuant to
such other agreement(s).
11.6. Survival. The expiration or termination of this
Agreement for any reason will not release either Party from any
liabilities or obligations set forth herein which (a) the Parties have
expressly agreed will survive any such expiration or termination;
or (b) remain to be performed or by their nature would be intended
to be applicable following any such expiration or termination. In
addition to the foregoing, upon termination or expiration of this
Agreement, the Parties' respective obligations under the provisions
of Sections 1, 3, 6.4, 7, 9, 10, 11.5, 11.6, 12, and 13 will survive
the termination of this Agreement. In addition, any provisions of
the Third Party Terms that by their nature survive termination of
this Agreement shall so survive.
12. DATA DELETION.
12.1. Request to Delete. Whelen shall delete or return
Customer Content in its custody or control in accordance with
Customer's instructions, including any applicable retention
periods instructed by Customer or upon receipt of Customer's
written request via the Organization Data Deletion Form. If
Customer does not instruct a retention period for Customer Content
or submit an Organization Data Deletion Form, then Whelen will
delete Customer Content in accordance with Whelen's data
retention policy.
12.2. Deletion Exceptions. Notwithstanding anything to the
contrary, Customer acknowledges and agrees that any obligation
to delete Customer Content excludes any Customer Content (a)
that Whelen is required to retain, or prohibited from deleting, under
applicable law, (b) reasonably related to any pending or reasonably
likely legal claim or defense, (c) within Whelen's logs or archived
on Whelen's back-up systems (which shall be deleted in the normal
course according to Whelen's policies and procedures), or (d) that
is aggregated or anonymized data. For so long as Whelen retains
any Customer Content under this Section, Whelen's obligations
under Sections 5 and 7 shall survive and apply to the retained
Customer Content, and, when Whelen retains any Customer
Content for purposes of (a) or (b) of this Section, Whelen shall only
process the retained Customer Content for the purpose for which it
was retained and delete the Customer Content as soon as the
purpose for which it was retained no longer applies. Whelen
acknowledges that Customer Content retained under this Section
may be subject to subpoenas or requests under the federal Freedom
of Information Act or analogous state laws, and Whelen will
reasonably assist Customer by providing the relevant retained
Customer Content in accordance with Customer's reasonable
instructions in order for Customer to respond to any such subpoena
or request to the extent required by applicable law.
12.3. Certification of Deletion. The Parties acknowledge and
agree that the Organization Data Deletion Form, once executed and
returned by Whelen, serves as a written certification of destruction
designed to prevent retrieval or recreation of data according to
Whelen's standards and policies.
12.4. Option for Return. Within ten (10) days of termination
of this Agreement, in the event Customer wishes for Customer
Content to be returned, Customer shall notify Whelen in writing
requesting the return of Customer Content. Except for any
Customer Content that Customer requested to delete, Whelen will
return Customer Content in a structured format reasonably agreed
upon by the Parties within sixty (60) days of receipt of a request
under this Section 12.4.
13. MISCELLANEOUS.
13.1. Entire Agreement. This Agreement together with the
Order Form sets forth the entire agreement and understanding
between the Parties with respect to the subject matter of this
Agreement and, supersedes and merges all prior oral and written
agreements, discussions and understandings between the Parties
with respect to the subject matter of this Agreement, and neither of
the Parties will be bound by any conditions, inducements or
representations other than as expressly provided for in this
Agreement. In the event of any conflict between the terms and
conditions set forth in the body of this Agreement, any exhibits or
attachments hereto, and the Order Form, the terms and conditions
set forth in the body of this Agreement shall control unless an
exception is expressly stated in as such in an exhibit, attachment,
or the Order Form.
13.2. Independent Contractors. In making and performing
this Agreement, Customer and Whelen act and will act at all times
as independent contractors, and, except as expressly set forth
herein, nothing contained in this Agreement will be construed or
implied to create an agency, partnership or employer and employee
relationship between them. Except as expressly set forth herein, at
no time will either Party make commitments or incur any charges
or expenses for, or in the name of the other Party.
13.3. Notices. All notices required by or relating to this
Agreement will be in writing and will be sent by means of certified
mail, postage prepaid, to Whelen as set forth below and to
Customer at its address set forth in the Order Form, or addressed
to such other address as the receiving Party may have given by
written notice in accordance with this provision. All notices
required by or relating to this Agreement may also be
communicated by email, provided that such Party will promptly
thereafter send a duplicate of such notice in writing by means of
CONFIDENTIAL EXHIBIT B
certified mail, postage prepaid, to the receiving Party, addressed as
set forth above or to such other address as the receiving Party may
have previously substituted by written notice to the sender.
Whelen, Inc.
51 Winthrop Rd.
Chester, CT 06412
Attn: CFO
13.4. Amendments; Modifications. This Agreement may
not be amended or modified except in a writing duly executed by
authorized representatives of both Parties.
13.5. Assignment. Customer shall not assign any of its
rights or duties under this Agreement without the prior written
consent of Whelen, and, absent such consent, any attempted
assignment will be null, void and of no effect.
13.6. No Third Party Beneficiaries. The Parties
acknowledge that, except as expressly set forth in this Agreement,
the covenants set forth in this Agreement are intended solely for
the benefit of the Parties, their successors and permitted assigns.
Except as expressly set forth in this Agreement, nothing herein will
confer upon any person or entity, other than the Parties, their
successors and permitted assigns, any legal or equitable right
whatsoever to enforce any provision of this Agreement.
13.7. Severability. if any provision of this Agreement is
invalid or unenforceable for any reason in any jurisdiction, such
provision will be construed to have been adjusted to the minimum
extent necessary to cure such invalidity or unenforceability. The
invalidity or unenforceability of one or more of the provisions
contained in this Agreement will not have the effect of rendering
any such provision invalid or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provisions
of this Agreement invalid or unenforceable whatsoever.
13.8. Waiver. No waiver under this Agreement will be
valid or binding unless set forth in writing and duly executed by
the Party against whom enforcement of such waiver is sought. Any
such waiver will constitute a waiver only with respect to the
specific matter described therein and will in no way impair the
rights of the Party granting such waiver in any other respect or at
any other time. Any delay or forbearance by either Party in
exercising any right hereunder will not be deemed a waiver of that
right.
13.9. Force Majeure. Except with respect to payment
obligations hereunder, if any, if a Party is prevented or delayed in
performance of its obligations hereunder as a result of
circumstances beyond such Parry's reasonable control, including,
by way of example, war, riot, fires, floods, epidemics, or failure of
public utilities or public transportation systems, such failure or
delay will not be deemed to constitute a material breach of this
Agreement, but such obligation will remain in full force and effect,
and will be performed or satisfied as soon as reasonably practicable
after the termination of the relevant circumstances causing such
failure or delay, provided that if such Party is prevented or delayed
from performing for more than ninety (90) days, the other Party
may terminate this Agreement upon thirty (30) days' written notice
and the Agreement shall terminate if such performance has not
resumed within those thirty (30) days.
13.10. Governing Law. This Agreement will be governed
by and interpreted in accordance with the laws of the state of
Connecticut, without regard to conflicts of law principles thereof
or to the United Nations Convention on the International Sale of
Goods. The Parties agree that all actions or proceedings arising in
connection with this Agreement shall be tried and litigated
exclusively in the state or federal courts (if permitted by law and a
Party elects to file an action in federal court) located in Middlesex
County, Connecticut. This choice of venue is intended by the
Parties to be mandatory and not permissive in nature, and to
preclude the possibility of litigation between the Parties with
respect to, or arising out of, this Agreement in any jurisdiction
other than that specified in this Section. Each Party waives any
right it may have to assert the doctrine of forum non conveniens or
similar doctrine or theory or to object to venue with respect to any
proceeding brought in accordance with this Section. No action,
regardless of form, arising out of this Agreement, may be brought
by either Party more than one (1) year after the cause of action has
arisen. The prevailing Party in any action or proceeding will be
entitled to recover its reasonable attorneys' fees and costs.
13.11. Publicity. Subject to Customer's prior review and
approval, Whelen may use Customer's name and logo in marketing
materials and on its website to identify Customer as a Whelen
client. Except as provided in this Section and as required by
applicable law, neither Party will use the other Parry's name or
logo in any advertisement, news release, or other public
communication without the consent of the other Party which will
not be unreasonably withheld, delayed, or qualified.
13.12. U.S. Government End -Users. Each of the
Application Documentation and the software components that
constitute the Application Services is a "commercial item" as that
tern is defined at 48 C.F.R. 2.101, consisting of "commercial
computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212.
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
through 227.7202-4, all U.S. Government end users acquire the
Application Services and the Application Documentation with
only those rights set forth therein.
13.13. Counterparts. The Order Form to which this
Agreement is attached and incorporated may be executed in any
number of counterparts via electronic or facsimile means, each of
which when so executed will be deemed to be an original and all
of which when taken together will constitute one Agreement.
13.14. Affiliates, Subcontractors, and Vendors. Some or
all of the Services, including support, may be provided by
Whelen's affiliates, agents, subcontractors, and information
system vendors. The rights and obligations of Whelen may be, in
whole or in part, exercised or fulfilled by the foregoing entities.
13.15. USA Patriot Act Notice. The U.S. federal USA
Patriot Act ("USA Patriot Act") provides generally for the operator
of a communication host and law enforcement to be able to monitor
any content, upon request of the operator. Whelen anticipates fully
complying with all its obligations, and availing itself of all its
rights, under the USA Patriot Act.
13.16. Export Compliance. Customer acknowledges that
the Application Services may be subject to export control
laws. Customer will not, directly or indirectly, export or permit
use of any portion of the Application Services outside of the United
States without prior government authorization to the extent
required by applicable regulation.
13.17. Electronic Execution. Each Party acknowledges and
agrees that the Order Form may be executed by the Parties in
electronic form (e.g., by an electronic or digital signature or other
means of demonstrating assent). Customer acknowledges and
agrees it will not contest the validity or enforceability of the Order
Form, this Agreement or any related documents, including under
any applicable statute of frauds, due to such execution in electronic
form.
CONFIDENTIAL EXHIBIT B
[End of Terms]
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