AGR-6986 - WORLD ADVANCEMENT OF TECHNOLOGY FOR EMS AND RESCUE INC- - ELECTRONIC PATIENT CARE REPORTING SOFTWARE LICENSE AGREEMENT1(t-bRBI
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THIS SOFTWARE LICENSE AGREEMENT (this"Agreement") is entered into as of
5/31/2020 (the "Effective Date")by and between World Advancement of Technology for EMS
and Rescue, Inc., a Delaware corporation with offices at 1748 San Diego Ave, San Diego, CA
92110 ("W.A.T.E.R./CONSULTANT"), and City of Orange with offices at 176 South Grand
Street, Orange, CA 92866 ("CUSTOMER"). In consideration of the mutual agreements
contained herein and intending to be legally bound hereby, W.A.T.E.R. and CUSTOMER hereby
agree to all of the following terms and conditions:
1. Definitions.
Documentation"means the manuals, documents and other related materials describing
the Software listed in Exhibit A.
Error"means a failure of the Software to confortn to the specifications set forth in the
Documentation,resulting in the inability to use, or material restriction in the use of, the
Software.
Proprietary Rights" means copyright,patent, trademark, trade secret and all other
intellectual property and proprietary rights whatsoever,howsoever arising, existing now or in the
future.
Prerequisites" means the prerequisites set forth in Exhibit B.
Software"means the software, in object code form, described in Exhibit A.
Update"means either a software modification or addition that,when made or added to
the Software, corrects an Error, or a procedure or routine that,when observed in the regular
operation of the Software, eliminates the practical adverse effect of the Error.
Upgrade"means a revision of the Software released by W.A.T.E.R. to its end user
customers generally, during the term of this Agreement,to add new and different functions or to
increase the capacity of the Software. An"Upgrade"does not include the release of a new
product or added features for which there may be a separate charge.
2. Deliverv. The"Delivery Date"shall be five(5) months after the Effective Date or five
5)months after the CUSTOMER has fulfilled the Prerequisites,whichever is later. By
the Delivery Date, W.A.T.E.R. shall install the Software in object code form on the
CUSTOMER's instance. By the Delivery Date, W.A.T.E.R. also shall deliver one copy
of the Documentation in electronic form. All of the foregoing shall be used by
CUSTOMER solely in accordance with the terms of this Agreement.
3. Support Services. Subject to CUSTOMER's compliance with the terms and conditions
of this Agreement, W.A.T.E.R. will provide support services under this Agreement in
accordance with Exhibit C.
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4. License Grant and Restrictions.
Software and Documentation. Subject to the terms and conditions of this Agreement,
W.A.T.E.R. hereby grants to CUSTOMER, for the term of this Agreement, a non-exclusive,
non-transferable,non-sublicensable, limited license to use the Software and related
Documentation for its internal business purposes. The maximum number of active devices
supported by the Software is set forth on Exhibit B. W.A.T.E.R. reserves all rights not expressly
granted to CUSTOMER hereunder and CUSTOMER will acquire no such rights, whether by
implication, estoppel, or otherwise.
Proprietary Rights. CUSTOMER acknowledges that, as between the parties, (i)
W.A.T.E.R. is the exclusive licensee with respect to the Software and all Documentation; (ii)
W.A.T.E.R. has all right,title, and interest to sublicense the Software and all Documentation as
set forth in this Agreement; (iii) CUSTOMER has no ownership interest in the Software or
Documentation,regardless of any participation or collaboration by CUSTOMER in the design,
development or implementation of any such Software or pocumentation; (iv)As between the
parties, W.A.T.E.R. is the owner and holder of all Proprietary Rights in its capacity as a master
licensee and sub-licensor of the Software and Documentation, and reserves all such Proprietary
Rights to itself except as expressly licensed to CUSTOMER hereunder. The Software has been
licensed and not sold to CUSTOMER.
Proprietary Notices. CUSTOMER shall not remove any copyright,patent,trademark or
other proprietary or restrictive notice or legend contained or included in any of the Software or
Documentation, and CUSTOMER shall reproduce and copy all such notices and legends on all
copies of the Software and Documentation that are permitted to be made hereunder.
License Restrictions. Nothing in this Agreement shall be construed as an implied grant
to CUSTOMER of any right to, and CUSTOMER shall not, and shall not permit any third party
to: (i)use or reproduce any of the Software in source code form, (ii) distribute, disclose or allow
use of any of the Software or pocumentation by or for the benefit of any third party,whether
through any timesharing service, service bureau,network or by any other means, (iii) decompile,
disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code
or underlying ideas or algorithms of any of the Software by any means whatsoever, (iv) copy
except for one copy for back-up purposes), modify or alter any of the Software or
Documentation in any manner whatsoever, or(v) assist or encourage any third party to take any
action prohibited by this Agreement. CUSTOMER shall cause its employees (including, without
limitation, systems administrator)to comply with the terms and conditions of this Agreement.
CUSTOMER shall cooperate with W.A.T.E.R., and shall render all reasonable assistance
requested by W.A.T.E.R., to assist W.A.T.E.R. in preventing and identifying any unauthorized
use of or access to the Software or pocumentation or any breach of this Agreement.
5. Fees and Pavments.
Fees. CUSTOMER shall pay to W.A.T.E.R. the license fees and expenses as set forth in
Exhibit B ("Fees").
Taxes. All Fees are exclusive of any state, local, and other taxes and charges (other than
income taxes payable by W.A.T.E.R.) applicable to the licensing, installation, support, or use of
the Software.
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Payments. All payments due under this Agreement shall be payable by CUSTOMER
within thirty(30) calendar days after receipt by CUSTOMER of W.A.T.E.R.'s invoice.
Payments remitted after such thirty(30) calendar day period shall bear interest at one and one-
half percent(1.5%)per month or, if less,the maximum rate allowed by law. All monthly service
payments will begin no later than thirly(30) calendar days after the scheduled Delivery Date
notwithstanding any delays on behalf of the CUSTOMER. CUSTOMER's timely payment of all
sums due is a condition precedent to W.A.T.E.R.'s obligations under this Agreement. Except as
explicitly provided herein, all Fees paid hereunder are non-refundable.
6. Confidentiality.
Definition. "Confidential Information"means all information regarding a parly's
business or affairs, including,without limitation,business concepts,processes,methods,
systems,know-how, devices, formulas,prices, customer information, customer lists, or other
information, whether in oral,written, or electronic fortn, either: (a) designated as confidential or
b)that is disclosed under circumstances or is of a nature such that a reasonable person would
know it is confidential. For clarity,the Software and Documentation is W.A.T.E.R.'s
Confidential Information. The following information will not be considered Confidential
Information: (i) information that is or was at the time it was disclosed, or becomes after
disclosure,without fault of the party obligated to keep it confidential, generally available to the
public; (ii) information with regard to the other party that is or was already known by a pariy at
the time of its disclosure, as evidenced by the party's written records; (iii) information that is or
becomes available to a party on a non-confidential basis from a source that is not bound by a
confidentiality agreement or other obligation of confidentiality relating to such Confidential
Information; and(iv) information that was independently developed by a party without use of the
Confidential Information.
Obligations. Any Confidential Information of one party(the"Disclosing parly")
received by the other party(the"Receiving party")under this Agreement shall be used,
disclosed, or copied, only for the purposes of, and only as necessary to perform under, this
Agreement. The Receiving party shall use the same degree of care as it uses to protect its own
Confidential Information of a similar nature,but no less than reasonable care.Notwithstanding
anything to the contrary in this Section, a party may disclose the Confidential Information to its
contractors who: (i) have a need to know such Confidential Information for purposes of carrying
out this Agreement but only to the extent that such Confidential Information is needed to
perform their obligations under this Agreement and(ii)have agreed in writing in advance to be
bound by a written confidentiality agreement reasonably acceptable to the other party. Further,
either party may disclose the terms of this Agreement to its board of directors or other similar
governing body, its attorneys and accountants, and potential acquisition partners or funding
sources,provided that such third parties are under written duties of confidentiality. The
Receiving party shall notify the Disclosing party immediately in the event of any unauthorized
use, disclosure, or publication of any Confidential Information. Either party shall have the right
to disclose Confidential Information as required by law or legal process or under the applicable
rules of a securities market or exchange; provided, however, that the disclosing party shall use
reasonable efforts to give the other party a reasonable opportunity to intervene to prevent such
disclosure or to obtain a protective order, and that any Confidential Information so disclosed
otherwise remains subject to the confidentiality obligations set forth in this Section. However,
nothing in this Agreement shall be construed so as to in any way prevent the Customer from
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disclosing or releasing any Confidential Information pursuant to a subpoena, court order, civil,
criminal, or administrative discovery request, or under the Public Records Act, Government
Code § 6250 et seq.,Freedom of Information Act or similar provision of state or federal law.
Further, not withstanding any other provision in this Agreement, it shall not be considered a
breach of this Agreement,nor shall any liability attach,nor shall injunctive or equitable relief be
sought or awarded, should the Customer or any of its officers, directors, employees and/or
agents, disclose or release any Confidential Information pursuant to a subpoena, court order,
civil, criminal or administrative discovery request, or under the Public Records Act, Government
Code § 6250 et seq.,Freedom of Information Act or similar provision of state or federal law,
even if such request, subpoena or court order is found,held or determined to be invalid or
inapplicable in any way.
7. Reserved
8. Reserved
9. Term and Termination.
Term. This Agreement shall commence upon the Effective Date and shall continue in
full force and effect thereafter for a period of five (5)years unless terminated in accordance with
Section 9 (Termination). Thereafter,this Agreement shall automatically renew for successive
one (1)year terms unless either party gives ninety (90) days advance written notice of
termination prior to the end of the then-current term of the Agreement.
Termination. Either party shall be entitled to terminate this Agreement immediately
upon delivery of written notice of such termination to the other party if the other party breaches
any material provision of this Agreement and fails to cure such breach within thirty(30) days
after the non-breaching party delivers notice of such breach to the breaching party. W.A.T.E.R.
may terminate this Agreement immediately if CUSTOMER is adjudicated as bankrupt or makes
an assignment for the benefit of creditors, or if a receiver, liquidator, administrator or trustee is
appointed for CUSTOMER's affairs or any analogous procedure is initiated or CUSTOMER is
dissolved. CUSTOMER may terminate this Agreement at any time if the City Council fails to
appropriate the necessary funds for payment in each applicable fiscal year(commencing July
lst) as part of its annual budget,by giving W.A.T.E.R. not less than five(5) days' written notice
of intent to terminate. Upon receipt of such notice, W.A.T.E.R. shall immediately cease work,
unless the notice from CUSTOMER provides otherwise. Upon the termination of this
Agreement, CUSTOMER shall pay W.A.T.E.R. for services satisfactorily provided and all
allowable reimbursements incurred to the date of termination in compliance with this
Agreement. CUSTOMER shall not be liable for any claim of lost profits.
Events Upon Termination. Upon any termination of this Agreement for any reason,
CUSTOMER shall immediately(i) cease all use of the Software and Documentation(ii)return to
W.A.T.E.R. all copies of the Software and Documentation then in CUSTOMER's possession or
control; and(iii) certify to W.A.T.E.R. in writing that it has retained no copies of the Software.
Upon any termination of this Agreement,W.A.T.E.R. shall invoice CUSTOMER for all accrued
Fees, and CUSTOMER shall pay the invoiced amount immediately upon receipt of such invoice.
W.A.T.E.R. will reimburse CUSTOMER a pro-rated amount for any remaining months of paid
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annual maintenance and support fees. Within 90 days of any termination of this Agreement,
W.A.T.E.R. will provide CUSTOMER an electronic copy of CUSTOMER's data in either a
NEMSIS 3 format, or SQL Database format. In the event of termination of this Agreement for
any reason, the provisions of Sections 1,4 (Proprietary Rights) & (License Restrictions), 5, 6, 9
Events Upon Termination), 10, 11 (W.A.T.E.R.'s Obligations), 12, 13, and 14 shall survive.
10. Limited Warranties and Disclaimer.
Software Warranty. W.A.T.E.R. warrants that, for a period of ninety(90) days after the
Delivery Date(the"Warranty Period"), the Software shall conform materially to the applicable
Documentation. If, during the Warranty Period, CUSTOMER discovers that any Software fails
materially to conform to the warranty provided in this Section, CUSTOMER shall give
W.A.T.E.R. written notice of such nonconformance promptly after such discovery(and, in any
event,no later than five(5)business days after expiration of the Warranty Period).
CUSTOMER's sole and exclusive remedy and W.A.T.E.R.'s sole and exclusive liability for a
breach of the warranty provided in this Section shall be for W.A.T.E.R. to use commercially
reasonable efforts to repair or replace the Software without charge, or if, after such commercially
reasonable efforts,W.A.T.E.R. does not repair or replace the non-conforming Software,
W.A.T.E.R. shall refund to CUSTOMER the Fees paid for the Software and this Agreement
shall terminate.
Exclusions. The warranties set forth in Section 10 (Software Warranty) do not apply if
alleged breach of warranty is based in whole or in part on(i)modifications to the Software or
Documentation made by CUSTOMER or a third pariy; (ii)use of the Software or pocumentation
in combination with a product not supplied by W.A.T.E.R.; (iii)use of the Soflware other than in
accordance with this Agreement or the Documentation; (iv) damaged from improper
environment, abuse, misuse, accident or negligence; or(v) failure to use any Updates or
Upgrades provided to CUSTOMER.
Authority. Each party represents and warrants that it has full power and authority to
enter into this Agreement. Each party further represents that it has not entered into nor will it
enter into any agreements that would conflict with its obligations hereunder or render it
incapable of satisfactorily performing hereunder.
DISCLAIMER. OTHER THAN THE FOREGOING WARRANTIES, W.A.T.E.R.
MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION OR ANY OTHER MATERIAL
OR SERVICES PROVIDED BY W.A.T.E.R. HEREUNDER. FURTHER, W.A.T.E.R. DOES
NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING
THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE,DOCUMENTATION
OR ANY INFORMATION CONTAINED THEREIN OR OTHERWISE PROVIDED
PURSUANT TO THIS AGREEMENT, OR ANY SERVICES, 1N TERMS OF
CORRECTNESS,ACCURACY,RELIABILITY, SECURITY, OR OTHERWISE. W.A.T.E.R.
DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED,FAULT-TOLERANT, OR ERROR-FREE. WITHOUT LIMITING THE
FOREGOING,W.A.T.E.R. SPECIFICALLY DISCLAIMS ALL WARRANTIES NOT
STATED HEREIN AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
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LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A
PARTICULAR PURPOSE,AND NON-INFRINGEMENT.
11.Indemnification.
W.A.T.E.R.'s Obligation. W.A.T.E.R. shall indemnify, defend and hold harmless
CUSTOMER and its officers, employees and agents from and against all costs, losses, damages,
liabilities, and expenses (including reasonable attorneys' fees) arising ftom a third-party claim of
infringement by the Software or pocumentation of any third pariy's copyrights or trademarks or
misappropriation of a trade secret. In the event of such a claim, W.A.T.E.R. may, at its sole
option and expense, either(i)procure for CUSTOMER the rights necessary to continue using the
Software or pocumentation or(ii)replace or modify the same so that it no longer infringes or
misappropriates the third party's rights. If W.A.T.E.R., in its sole discretion, determines that
neither of these options is commercially feasible, W.A.T.E.R. may terminate this Agreement for
the affected Software. The indemnity set forth in this Section 11 shall be CUSTOMER's sole and
exclusive remedy and W.A.T.E.R.'s sole and exclusive liability for any claim of infringement or
misappropriation in connection with the subject matter of this Agreement. W.A.T.E.R.'s
indemnification obligations under Section 11 (W.A.T.E.R.'s Obligation)are contingent upon(i)
CUSTOMER giving W.A.T.E.R. prompt written notice of such claim, (ii) CUSTOMER
cooperating with W.A.T.E.R. in the defense and settlement thereof, and(iii) W.A.T.E.R. having
an opporcunity to assume control of such defense. W.A.T.E.R. shall not be responsible for or
bound by any settlement that it does not approve in writing.
Exclusions. W.A.T.E.R.'s indemnification obligations under Section 11 (W.A.T.E.R.'s
Obligation) shall not apply where the claim is based in whole or in part on(i)modifications to
the Software or pocumentation made by CUSTOMER; (ii)use of the Software or
Documentation in combination with a product not supplied by W.A.T.E.R.; (iii)use of the
Software other than in accordance with this Agreement or the Documentation; or(iv) failure to
use any Updates or Upgrades provided to CUSTOMER.
12.LIMITATION OF LIABILITY. W.A,T.E.R. SHALL NOT BE LIABLE TO
CUSTOMER FOR ANY CONSEQLTENTIAL, INDIRECT, INCIDENTAL,PUNITIVE,
EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF, RELATING TO, OR
CONNECTED WITH THIS AGREEMENT, OR FOR ANY LOST DATA OR LOST PROFITS,
REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED,EVEN IF
W.A.T.E.R. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OCCURRING. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
W.A.T.E.R. SHALL NOT BE LIABLE TO CUSTOMER OR END-USERS UNDER THIS
AGREEMENT FOR ANY CLAIM ARISING FROM,RELATING TO, OR CONNECTED
WITH THE SOFTWARE, DOCUMENTATION, ANY SERVICES OR ANY OTHER
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,NEGLIGENCE,
STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY
AMOUNTS, IN THE AGGREGATE, IN EXCESS OF THE TOTAL AMOUNT OF FEES
ACTUALLY PAID BY CUSTOMER TO W.A.T.E.R. HEREUNDER.
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13. Publici . W.A.T.E.R. shall be entitled to disclose and publicize, in the form of
customer lists and on its web site,marketing materials and otherwise,the identity of
CUSTOMER as a client of W.A.T.E.R. Neither pariy shall issue a general press release
disclosing the existence of this Agreement and naming the other party without the prior written
consent of the other party.
14.Export Controls; U.S. Government Restricted Rights.
Export. Before using, sublicensing, or otherwise distributing the Software or
Documentation outside the United States (which CUSTOMER shall not do without
W.A.T.E.R.'s prior written permission), CUSTOMER shall: (a)take reasonable precautions to
protect the proprietary rights of W.A.T.E.R. in each country in which the Software is to be used,
sublicensed, or otherwise distributed; (b)fully comply with all then current regulations of the
United States Office of Export Administration and other applicable governmental agencies; and
c) fully comply with all then current and applicable regulations of any government in whose
country the Software is used, sublicensed, or distributed pursuant to this Agreement. The
obligations of W.A.T.E.R. under this Agreement to license or otherwise deliver the Software is
subject to compliance by CUSTOMER with applicable laws,rules, and regulations of the United
States Office of Export Administration and other applicable governmental agencies.
Restricted Rights. If the Software or pocumentation is licensed by an agency of the
United States Government subject to the DFAR,the Software and Documentation is commercial
computer software and commercial computer software documentation under DFAR 227.7202 (or
any successor regulation having similar effect) and the Government has only the rights specified
in this Agreement. For other agencies of the United States Government, the Software and
Documentation is restricted computer software and is provided with the rights under paragraph
c) of the Commercial Computer Software—Restricted Rights clause at FAR 52.227-19 (June
1987) or any successor provision having similar effect, and such a licensee acknowledges that it
is not feasible to affix the notice set out in paragraph(c)(4) of that clause.
15. General.
Injunctive Relief. CUSTOMER acknowledges and agrees that the Software, and
W.A.T.E.R.'s intellectual property rights therein, are of a unique and extraordinary character and
that the unauthorized use thereof would cause W.A.T.E.R. irreparable harm,which could not be
adequately remedied by monetary damages. Accordingly, if CUSTOMER breaches or threatens
to breach any of the provisions of Section 4 or 6 or otherwise infringes or threatens to infringe
W.A.T.E.R.'s intellectual property rights, W.A.T.E.R. shall have the right to obtain injunctive or
other equitable relief on an expedited basis,without the need to post a bond or other security.
Assignment. Neither W.A.T.E.R. nor CUSTOMER shall have the right to assign,
transfer, or subcontract any obligations or benefit under this Agreement,by operation of law or
otherwise,without the written consent of the other party and any such attempted transfer shall be
void,with the sole exception being W.A.T.E.R.will retain the right to outsource its data center
services without obtaining consent from CUSTOMER.Neither party may unreasonably withhold
consent.
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Notices. All notices under this Agreement shall be in writing, and shall be deemed given
when personally delivered, when mailed by prepaid certified or registered U.S. mail, when sent
by commercial overnight courier service with tracking capabilities or by facsimile (if confirmed
by one of the other methods permitted hereunder within 48 hours after such facsimile
transmission),to the respective addressee of each party at the address or facsimile number below,
or such other address or facsimile number as such party last provided to the other party by
written notice:
To W.A.T.E.R.:World Advancement of Technology for EMS and Rescue
1748 San Diego Ave
San Diego, CA 92110
To CUSTOMER: City of Orange
176 South Grand Street
Orange, CA 92866
Waiver. The failure of either party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights. The waiver of a breach of any
provision of this Agreement will not operate or be interpreted as a waiver of any other or
subsequentbreach.
Independent Contractors. Notwithstanding any provision hereof, for all purposes of
this Agreement each party shall be and act as an independent contractor and not as a partner,
joint venturer or agent of the other pariy and shall not bind nor attempt to bind the other party to
any contract,warranty or other obligation.
Amendment. No changes or modifications to or waivers of any provision of this
Agreement shall be effective unless evidenced in a written amendment that is signed by both
parties.
Severability. In the event that any provision of this Agreement shall be determined to be
illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to the conflicts of laws
provisions thereof.
Headings. Headings herein are for convenience of reference only and shall in no way
affect interpretation of the Agreement.
Force Majeure. A party shall not be liable for nonperformance or delay in performance
other than of obligations regarding payment of money or confidentiality) caused by any event
reasonably beyond the control of such pariy including,but not limited to,wars,terrorism,
hostilities, revolutions,riots, civil commotion,national emergency, strikes, lockouts,
unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion,
embargo, or any other Act of God, internet, electric power or communications outage, or any
law,proclamation,regulation, ordinance of any court, government or governmental agency.
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Entire Agreement. This Agreement, including all exhibits hereto, constitutes the entire
agreement between the parties with respect to the subject matter of this Agreement and
supersedes all proposals, oral or written, all negotiations, conversations, discussions or
agreements between or among the parties relating to the subject matter. No terms,provisions or
conditions of any purchase order, acknowledgment or other business form that CUSTOMER
may use in connection with the licensing of the 5oftware will have any effect on the rights,
duties, or obligations of the parties hereunder, or otherwise modify this Agreement,regardless of
any failure of W.A.T.E.R.to object to such terms,provisions or conditions.
Counterparts. This Agreement may be executed in counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same Agreement.
Facsimile signatures will have the same weight and effect as originals.
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above
written.
CONSULTANT" CITY"
W.A.T.E.R.,a Delaware corporation CIT'Y OF ORANGE,a municipal corporation
By:
Pr' ed Name:f w Mark A. urp y,Mayor
tle: .f3
By: ATTEST:
Printe Name: . i
Title:
Pamela Coleman,City Clerk
APPROVED AS TO FORM:
Mary E.Bin ng
Senior Assis nt City Attorney
NOTE:The City requires the following signature(s)on behalf of the Consultant:
l) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the
Chief Financial Officer,the Treasurer,an Assistant Secretary or an Assistant Treasurer. If on[y
one corporate oJficer ecists or one corporate officer ho[ds more than one corporate office,please
so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter into this Agreement.
A copy of the corporate resolutian,certified by the Secretary close in time to the execution of the
Agreement,must be provided to the City.
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EXHIBIT A
SOFTWARE:
Street EMS License for City of Orange
Street EMS Server License for City of Orange
Street Fire RMS License for City of Orange
INTERFACES:
Real-time CAD Interface License for City of Orange
Real-time Billing Interface License for City of Orange
Real-time Zoll Monitor Interface License for City of Orange
Batch Firehouse Interface License for City of Orange
Interface License to Orange County EMS Authority
SOFTWARE DOCUMENTATION:
Street EMS Crew Guide
Street EMS Server Manual
TRAINING:
Administrator Training for Orange: 3 sessions, 2 hours each
Train-the Trainer for Orange: 1 session, 4 hours
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EXHIBIT B
SCHEDULE OF FEES
CUSTOMER agrees to pay license fees to W.A.T.E.R. as described below
1) Licenses
a) Orange Street EMS License for 9 First Responder Units 16,294 paid
b) Orange Street EMS License for 4 Transport Units 13,195 paid
c) Orange Real-time EKG Monitor Integration for 13-Units 7,941 paid
d) Street Analytics Reports (30 @ $200 each) 6,000 paid
Total License Fees $37,430 paid
2) Support and Maintenance,to be billed annually
a) Orange Street EMS Maintenance for 13-Units 25,175 per year
Total Annual Support and Maintenance $25,175 per year
Additional Terms
1. The following additional terms further describe the assumptions of this agreement:
a. Key Stone CAD import and Service Bridge export via NEMSIS 3 is included.
b. Street EMS will be compatible with Orange County EMS Authority data
requirements. Should the data requirements or submission process change,
W.A.T.E.R. will work to become compatible with changes at no additional cost to
the customer.
c. A Business Associate Agreement(BAA)must be in place prior to Go Live.
d. A Software License Agreement(SLA)must be in place prior to Go Live.
e. The addition of active units in excess of 9 First Responder and 4 Transport units
will require additional licensing. A unit is considered active if it is in service more
than 22 days per month during more than 3 months per year, or for more than 10
days per month during more than 4 months per year.
2. Any additional services rendered above those included in this agreement will be billed
separately. Billing is calculated to the next 15-minute increment and invoiced monthly.
There is a 2-hour minimum for each support service incident. The current rate for
additional services is as follows:
a. $175 per hour: 8:OlAM to SPM,Monday through Friday(excluding national
holidays)
b. $265 per hour: 5:01 PM to 12AM, Monday through Friday(excluding national
holidays).
c. $350 per hour: 12:OlAM to 8AM, Monday through Friday and 24 hours on
weekends and national holidays.
O W.A.T.E.R. 1748 San Diego Avenue,San Diego,CA 92110 (619)955-6488/fax(619)299-9946
Version 2.0 Software License Agreement Page 12 of 13
EXHIBIT C
SUPPORT TERMS
Software Supuort Services. During the term of the Agreement, CUSTOMER shall receive
standard Software Support Services from W.A.T.E.R.. Subject to payment of fees, W.A.T.E.R.
shall provide the following Software Support Services for the W.A.T.E.R. software licensed by
CUSTOMER("Software"):
1. Standard Support. W.A.T.E.R. will provide reasonable email support for problem
determination and resolution as described further herein during W.A.T.E.R.'s normal
working hours of 8:00 a.m. to 5:00 p.m. (business hours), Monday through Friday(excluding
major holidays and W.A.T.E.R. recognized holidays) (business days), Pacific Time for all
problems related to the Software ("Standard Support"). W.A.T.E.R. maintains a support
contact email address (support@wateronscene.com). This contact information is subject to
change upon written notice to CUSTOMER.). Help desk support can be reached during
Standard Support Hours at(619) 955-6488 x301. The support line will ring a support person
or persons during business hours. W.A.T.E.R. has policies and procedures in place to ensure
best reasonable efforts are made to answer all support calls during business hours, and to
return any missed calls as soon as reasonably possible.
2. Emer encv Support.Emergency support can be reached for resolution of business critical
issues outside of Staridard Support Hours at(619) 363-4007. This contact information is
subject to change upon written notice to CUSTOMER. Calling the emergency support line
constitutes authorization for W.A.T.E.R. to bill two hours at the rates described in Exhibit B
Section 2, a-c. If the resolution will take longer than two hours to complete, W.A.T.E.R. will
get approval before performing additional billed work,per the terms in Exhibit B, Section 2.
W.A.T.E.R. reserves the right to waive this charge at its sole discretion.
3. Updates and Ungrades. W.A.T.E.R. will, from time to time when and if available, make
available to CUSTOMER Updates and Upgrades. Nothing herein shall require W.A.T.E.R.
to develop or provide Upgrades or Updates except as necessary to comply with its Error
Correction obligations described herein. Update and LTpgrades will be treated as Software
and subject to the terms of the License Agreement.
4. Maintenance Window. W.A.T.E.R. will, from time to time,be required to perform routine
maintenance to the Street EMS application. The regular weekly maintenance window is
Thursdays, from 9:00-10:00a.m., Pacific Time. During the window Users may only be able
to utilize Street EMS in offline mode.
5. Error Correction. W.A.T.E.R. will correct reproducible errors in the Software, and assist
CUSTOMER in resolving operational issues pertaining to the CUSTOMER's deployment
and use of the Software as provided by W.A.T.E.R. according to the schedule below.
W.A.T.E.R.'s obligations under this section shall not include error correction for any
software written, rovided or modified b CUSTOMER.
Priority Description Acknowledgem Resolution
ent
Standard Issues that are not Within 3 days Commercially
Issues Priority Issues reasonable
effort
Priority Issues that Within 24 hours Commercially
Issues substantially reasonable
de ade the effort
W.A.T.E.R. 1748 San Diego Avenue,San Diego,CA 92110 (619)955-6488/fax(619)299-9946
Version 2.0 Software License Agreement Page 13 of 13
performance of the
Software or
materially restrict
the use of the
Software
A) Acknowled e consists of an acknowledgement to the CUSTOMER, via
email or telephone, as to the receipt of the problem as reported.
B) Resolution consists of providing, as appropriate, one of the following to
CUSTOMER: an existing correction; a new correction; a viable detour,work
around or temporary patch and,where the fix is temporary, a plan on how the
problem will be finally corrected.
6. Services By Designated Parties.W.A.T.E.R. may designate third parties including
distributors, OEMs (Original Equipment Manufacturers), or VARs(Value Added Resellers) to
provide any of the Software Support Services identified in this Exhibit C,provided, however,
that W.A.T.E.R. shall at all times remain responsible to CUSTOMER for the performance of all
Software Support Services.
7. On-Site Emergencv Support. In critical situations, CUSTOMER may request
W.A.T.E.R. to provide on-site emergency software support services as a separate and distinct
billable service. Such services shall be reimbursed at the then current rates set forth in Exhibit B
for additional services.
8. CUSTOMER's Obligations for Operational SuUAort.
8.1. Contact Person(s). CUSTOMER will designate up to two (2)Contact Person(s) (or such
other replacement individuals as CUSTOMER may designate in writing)who shall be the sole
contacts for the coordination and receipt of the Software Support Services set forth in this
Agreement. Each Contact Person shall be knowledgeable about the Software. If W.A.T.E.R. is
unable to contact any designated Contact Person after reasonable attempts to do so, and such
contact is necessary for perfortning the Software Support Services,W.A.T.E.R. may delay
performance of the services until W.A.T.E.R. is able to contact a designated Contact Person, in
which case the times for Resolution set forth above will be adjusted for any such delay.
8.2. Supporting Data• CUSTOMER will provide reasonable supporting data to aid in the
identification and resolution of the issue.
W.A.T.E.R. 1748 San Diego Avenue,San Diego,CA 92110 (619)955-6488/fax(619)299-9946