AGR-7024 - MOBILE APPLICABILITY INC - ENTERPRISE SOFTWARE SUBSCRIPTION SERVICE (Saas) AGREEMENTRr R-7 a}
Mobile Applicability SAAS SERVICES ORDER FORM
Customer: City Of Orange Contact: M. Nelson
Address: 300 E. Chapman Phone: (714) 288-2506
Orange, CA 92866 E-Mail: mnelson@cityoforange.org
Services: Proprietary iOS enterprise application software suite known as Mobile ICS
that is used to assist in viewing of response maps, electronic files and assisting the
routing navigation of emergency apparatus(the"Service(s)").
Services Fees: $ 22,570.00 per contract term, payable in advance, subject to the terms of Section 1
herein.
Year 1$7400.00 Due 09-01-2020
Year 2$7400.00 Due 09-01-2021
Year 3$7770.00 Due 09-01-2022
Service Term: 3 Years
Start Date: 09-01-2020
Implementation Services: Company will use commercially reasonable efforts to provide Customer
the services described in the Statement of Work ("SOW") attached as Exhibit A hereto
Implementation Services"), and Customer shall pay Company the Implementation Fee in
accordance with the terms herein.
Implementation Fee (one-time): Included
ENTERPRISE SOFTWARE SUBSCRIPTION SERVICE (SaaS) AGREEMENT
This Enterprise Software Subscription Service (SaaS) Agreement (the
Agreement") sets forth the obligations and conditions between City of Orange
Client") and Mobile Applicability Inc., a California corporation, FEI Tax ID
473762617 ("Provider"), relating to your use of the Services defined herein.
Please read this Agreement carefully. Your use of the Services is expressly
conditioned on your acceptance of this Agreement.
BY CLICKING THE "I AGREE" ICON BELOW, AND/OR BY USING THE
SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF
THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS
AGREEMENT, DO NOT LJSE THE SERVICES AND EXIT IMMEDIATLEY BY
CLICKING "I DO NOT AGREE" ICON BELOW.
RECITALS
A. Provider is the owner of certain proprietary application software suite
known as Mobile ICS that is used to assist in viewing of electronic files and
routing navigation of emergency apparatus (the "Software").
B. Provider provides and sells subscriptions for subscribers to access and use
the Software via an i05 device (the "Services").
C. Client desires to use the Services for Client's internal purposes pursuant
to the terms and conditions set forth herein.
D. Provider is willing to provide access to the Services for Client's internal
business use pursuant to the terms and conditions set forth herein.
E. Provider and Client acknowledge and agree that this Agreement shall be
effective and in force immediately upon the date that Client clicks the "I
Agree" icon below (the "Effective Date") NOW THEREFORE, in
consideration for the mutual promises contained herein and other good
and valuable consideration, the parties agree as follows:
1. Software Subscription.
a. Provider grants to Client and Client accepts from Provider, a limited, non-
exclusive, non-transferable right to access and use and permit Authorized Users
to access and use the Services solely for Client's internal business use. The
Services shall not be used by Client or by Authorized Users for, or on behalf of,
third parties that are not authorized under this Agreement. Client shall use its
best efforts to ensure that the Authorized Users use the Services in accordance
with the terms and conditions of this Agreement. Client acknowledges that its
right to use the Services will be pursuant to the terms of this Agreement and the
Software will not be installed on any devices or other computer equipment owned
or controlled by Client or otherwise provided to Client.
b. The use of the Services by Client or any Authorized User pursuant to this
Agreement shall be subject to any end user agreement, terms of use, and/or
privacy policy applicable to Mobile Applicability Inc.
2. Intellectual Property Ri hts.
a. Client acknowledges that all right, title, and interest in and to the Services
and the Software, together with its codes, sequences, derivative works,
organization, structure, interfaces, any documentation, provided files, data,
trade names, trademarks, or other related materials (collectively, the "Provider
IP"), is, and at all times shall remain, the sole and exclusive property of Provider.
The Provider IP contains trade secrets and proprietary information owned by
Provider and is protected by United States copyright laws (and other laws relating
to intellectual property). Except the right to use the Services, as expressly
provided herein, this Agreement does not grant to Client any rights to, or in,
patents, copyrights, database rights, trade secrets, trade names, trademarks
whether registered or unregistered) or any other rights or licenses with respect
to the Services or the Software.
b. Client shall not attempt, or directly or indirectly allow any Authorized User
or other third party to attempt to copy, modify, duplicate, create derivative works
from, frame, mirror, republish, reverse compile, disassemble, reverse engineer,
download, transmit or distribute all or any portion of the Services and/or
Software in any form or media or by any means.
c. The provisions of this paragraph 2 shall survive termination of this
Agreement.
3. Subscription Fee.
a. Client shall pay to Provider the subscription fee (the "Subscription Fee") in
the amount and for the duration that Client has entered and agreed to pursuant
to the sign up page for this Agreement.
b. The Subscription Fee for the first Subscription Period (of three (3) years, as
applicable) of the term of this Agreement shall be paid on the Effective Date. The .
Subscription Fee for all subsequent Subscription Periods of the term of this
Agreement shall be paid to Provider on the first day of each subsequent
Subscription Period, pursuant to subsection d, below.
c. The amount of the Subscription Fee does not include any applicable taxes.
Client is responsible for any and all applicable taxes.
d. Client shall provide a valid credit card, ACH payment system information,
bank account information authorized for automatic bill paying, or other
acceptable method of payment to Provider and shall take all necessary steps to
authorize automatic payment of the Subscription Fee. By agreeing to this
Agreement, Client hereby authorizes Provider to automatically charge said
method of payment for all Subscription Periods during the term of this
Agreement. If, for any reason, automatic payment shall be denied, then Client
shall pay the applicable Subscription Fee, together with a $150.00 late fee, to
Provider within five (5) days of notice from Provider.
e. Any additional payment terms between Provider and Client shall be agreed to
in writing and set forth in an invoice, billing agreement, or other written
document.
4. Accessibilitv Performance.
Provider shall use commercially reasonable efforts to make the Services available
on a 24x7 basis (twenty-four hours per day, seven days per week) during the
Term, except for: (i) scheduled system back-up or other on-going maintenance
as required and scheduled in advance by Provider, or (ii) for any unforeseen
cause beyond Provider's reasonable control, including but not limited to internet
service provider or communications network failures, denial of service attacks or
similar attacks, device software updates or any force majeure events set forth in
this Agreement. Provider will monitor performance indicators on the systems and
network infrastructure (its own and that of third party suppliers) in order to
gauge the overall performance of its services, and will take reasonable steps to
address systems and network infrastructure as required to maintain satisfactory
performance of the Software. Provider further reserves the right to monitor
Client's use of the software and use good faith efforts to determine an appropriate
alternative or work- around solution.
5. Maintenance and Support.
Provider shall maintain the Software and/or Services and provide all patches
and fixes to the Software and/or Services at no additional cost. Provided,
however, said maintenance shall not include any required patches and fixes
caused by a device software update that conflict with the Software and/or
Services as delivered. Additionally, major releases of new versions of the
Software, additional functionality, or custom programming, which Provider, at
its discretion, may provide at an additional cost as otherwise agreed between the
parties.
6. Term.
The Term of this Agreement shall commence on the Effective Date anci shall
continue until terminated as provided herein. Upon termination of this
Agreement for any reason, all rights and subscriptions granted to Client shall
immediately terminate, and the Client shall cease using the Services and shall
prohibit Authorized Users from using the Services.
7. Default.
Client shall be in default of this Agreement if Client fails to make any payment
when due and fails to cure said default within five (5) days after receipt of written
notice thereof from Provider. In addition to the monetary breach described in the
previous sentence, either party will be in default of this Agreement if the party is
in material breach of this Agreement and fails to cure such breach within fifteen
15) days after receipt of written notice thereof from the non-breaching party. If
a paxty is in default, the non- breaching party may terminate this Agreement or
seek any other remedies available at law or in equity, except as otherwise
provided in this Agreement. In the event Client breaches or attempts to breach
any of the provisions of this Agreement, Provider shall have the right, in addition
to such other remedies that may be available, to injunctive relief enjoining such
breach or attempt to breach, Client hereby acknowledging the inadequacy of any
remedy at law.
8. Confidentialitv.
a. In addition to, and in no way limiting the requirements relating to the Provider
IP as set forth in Section 2 of this Agreement, Client shall use its reasonable
efforts (but in no case less than the efforts used to protects its own proprietary
information of a similar nature) to protect all proprietary, confidential, and/or
non-public information pertaining to or in any way connected to the Software,
the Services, the Provider's financial, professional and/or other business affairs,
and this Agreement (the "Confidential Information").
b. Client shall not disclose or publicize the Confidential Information without the
Provider's prior written consent.
c. Client shall use their reasonable efforts (but in no case less than the efforts
used to protects its own proprietary information of a similar nature) not to
disclose and not to use the Confidential Information for their own benefit or for
the benefit of any other person, third-party, firm or corporation in a manner
inconsistent with the purpose of this Agreement.
d. The terms of confidentiality and non-disclosure contained herein shall expire
ten (10) years from the date of the termination of this Agreement.
e. The restrictions on disclosure shall not apply to information which was: (i)
generally available to the public at the time of disclosure, or later available to the
public other than through fault of the Client; (ii) already known to the Client
prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully
from a third-party under circumstances permitting its use or disclosure to
others; or (iv) required by law or court order to be disclosed.
9. Limited Warranty.
Provider warrants that it has the power and authority to grant the subscription
for the Services granted to Client hereunder. EXCEPT FOR THE WARRANTY
SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS," AND PROVIDER
DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedy and Liability. Client represents that it accepts sole and
complete responsibility for: (a) the selection of the Services to achieve Client's
intended results; (b) use of the Services; (c) the results obtained from Services;
and (d) the terms of any contracts between Client and Authorized Users. Provider
does not warrant that the Client's use of the Services will be uninterrupted or
error-free. Client shall not assert any claims against Provider based upon
theories of negligence, gross negligence, strict liability, fraud, or
misrepresentation, and Client shall defend Provider from any demand or claim,
and indemnify and hold Provider harmless from any and all losses, costs,
expenses, or damages, including reasonable attorneys'fees, directly or indirectly
resulting from Client's use of the Services, an Authorized User's use of the
Services, and/or any agreement between the Client and an Authorize User based
on or in any way related to the Services. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, under
no circumstances shall Provider be liable for any loss, costs, expenses, or
damages to Client in an amount exceeding the Subscription Fee actually paid to
Provider by Client for the previous twelve (12) months.
10. Miscellaneous.
a. Notice and Demands. Notice, demand, or other communication mandated to
be given by this Agreement by either party to the other shall be sufficiently given
or delivered if it is sent by registered or certified mail, postage prepaid, return
receipt requested or delivered personally. Unless Provider is otherwise notified in
writing, the Client's address for notice purposes shall be Client's address
provided as part of Client's billing information.
b. Governing Law; Forum Selection. This Agreement shall be governed
exclusively by the laws of the State of California, without regard to its conflicts
of laws principles. Any action under or concerning this Agreement shall be
brought exclusively in the District Court of Orange County, California. The
parties irrevocably agree and consent that said forum is convenient and has
jurisdiction to hear and decide any such action.
c. Compliance with Laws. Client shall use the Sexvices in accordance with any
and all applicable local, state, and federal laws.
d. Headings. The paragraph headings in this Agreement are for convenience
only and they form no part of the Agreement and shall not affect the
interpretation thereof.
e. Severability. If any provision of this Agreement shall be held illegal, void, or
unenforceable, the remaining portions shall remain in full force and effect.
f. No Waiver. The delay or failure of either party to exercise any right under this
Agreement or to take action against the other party in the event of any breach of
this Agreement shall constitute a waiver of such right, or any other right, or of
such breach, or any future breaches, under this Agreement.
g. Assignment. Client shall not assign or transfer this Agreement.
h. No Partnership or Agency. Nothing in this Agreement is intended to or shall
operate to create a partnership between the parties, or authorize either party to
act as an agent for the other, and neither party shall have the authority to act in
the name or on behalf of or otherwise bind the other in any way.
i. Force Majeure. Provider will not be held responsible for any delay or failure
in performance of any part of this Agreement to the extent that such delay is
caused by events or circumstances beyond the Provider's reasonable control,
including but not limited to fire, flood, storm, act of God, war, malicious damage,
failure of a utility service or transport or telecommunications network.
j. Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the Services, and supersedes any and all
prior or contemporaneous understandings or agreements whether written or
oral. No amendment or modification of this Agreement will be binding unless
reduced to a writing signed by duly authorized representatives of the parties and
such writing makes specific reference to this Agreement and its intention as an
amendment hereto.
BY CLICKING "I AGREE" AND/OR BY USING THE SOFTWARE, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD
IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU
FURTHER AGREE THAT THIS AGREEMENT SHALL BE SUPERIOR TO, AND
SUPERCEDE ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN
ANY PURCHASE ORDERS, OTHER DOCUMENTS PROVIDED TO THE
COMPANY BY YOU, OTHER DOCUMENTS PROVIDED TO YOU BY THE
COMPANY, OR AGREEMENTS PREVIOUSLY ENTERED INTO BY THE PARTIES.
IF YOU DO NOT AGREE TO THE TERM OF THIS AGREEMENT, DO NOT
INSTALL OR USE THE SOFTWARE APPLICATION AND/OR THE DATA.
CONSULTANT" CITY"
Mobile Applicability, Inc. City of Orange
5812 Midway Drive 300 E. Chapman Avenue
Huntington Beach, CA 92648 Orange, CA 92866-1591
Attn.: John Legg Attn: Matt Nelson,Admin. Captain
Telephone.: 714-715-6279 Telephone: 714-288-2506
E-Mail: solutions@mobileapplicability.com E-Mail: mnelson@cityoforange.org
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONSULTANT" CITY"
MOBILE APPLICABILITY, INC., CITY OF OR.ANGE, Municipal Corporation
a Ca ' ornia corporation
By: By:
Printed 1 a e: 1 " ck o, City Manager
Title:
APPROVED AS TO FORM:
l ..
Mary E. B' ng,
Senior Assistant City Attorney