HomeMy WebLinkAboutContract 54679 DocuSign Envelope ID:D3AEE1AE-7984-4586-87E2-F6E1142CAME
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Axon Fleet 3 Test Agreement
This Axon Fleet 3 Test Agreement (the Agreement) by and between Axon Enterprise, Inc., (Axon
or Party) a Delaware corporation having its principal place of business at 17800 N 85th Street,
Scottsdale, Arizona, 85255, and City of Fort Worth, (Agency, Party or collectively Parties), is
entered into as of the last signature date on this Agreement (Effective Date).
In consideration of this Agreement, the Parties agree as follows:
1.0 DEFINITIONS.
1.1 "Product" means the Axon product(s) provided to the Agency for testing related to
unreleased Axon Fleet 3 technology, including Software, if any, and
Documentation.
1.2 "Test Period" means the period of 8 weeks during which testing of and adjustments
to the Product contemplated hereunder will be undertaken, unless otherwise
extended by Axon.
1.3 "Software" means the computer programs provided in object code format as part
of a Product.
1.4 "Documentation" means such supporting written materials as Axon may in its
discretion provide to Agency in connection with their use of a Product.
2.0 SCOPE. This Agreement sets forth the terms and conditions for the installation, use, test
and support of certain Axon products in a user site prior to formal product release.
3.0 OBLIGATIONS OF AGENCY.
3.1 Testing. During the Test Period, Agency agrees to test Product(s) as requested by
Axon. Upon request of Axon,Agency also agrees to cooperate and participate in a
case study, survey, or report involving the Product and the Agency's use of the
Product.The Agency agrees that Axon will have a non-exclusive, perpetual license
to utilize the results and any report or publication resulting from the case study in
Axon's training, markets and sales materials.
Agency acknowledges and agrees that usage of the Product is for testing purposes
only. If Agency's officers participating in the testing are on duty, they should also
wear and utilize any Agency-issued body camera in accordance with agency policy.
3.2 LTE Service. During the Test Period, Agency agrees to maintain its current LTE
OFFICIAL RECORD
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workflow through a contracted wireless provider. Agency will be responsible for
the wireless provider bill for any Fleet 3 LTE evidence upload.
3.3 Error Notice. Agency shall notify Axon of any failure, error or other malfunction of
any part of the Product within three (3) days of such occurrence.
3.4 Modifications. Agency agrees to promptly implement such modifications and
changes that Axon may make to the Product during the Test Period as they are
provided by Axon.Agency understands that these modifications and changes may
be incompatible with previous modifications and could include substantial changes
to the system and its operating procedures.
3.5 Return of Product. Agency agrees to return the Product to Axon within 10 days
after the end of the Test Period or any extensions thereof. Before Agency returns
the Product, it is Agency's responsibility to upload any data off of the Product to
Evidence.com. Axon will retain all data stored in the Product for the purpose of
evaluating the Product's performance. Product is to be returned via the RMA
process to: Axon Enterprise, Inc., 17800 N. 85th Street, Scottsdale, Arizona USA
85255, Attention: Trial Returns
3.6 Data Development. Agency hereby agrees that Axon may use Customer Content,
as defined in and subject to the Data Development Agreement, attached hereto as
Attachment A and incorporated herein by reference, generated pursuant to this
Agreement.
4.0 OBLIGATIONS OF AXON.
4.1 Delive . Axon agrees that Axon will deliver the Product to Agency for Testing.
4.2 Technical Assistance. Axon will provide Agency such technical assistance as Axon
may deem necessary to properly install and operate the Product at the test site.
4.3 Modifications. During the Test Period,Axon will consult with Agency regarding the
performance of the Product and will evaluate any test data and error reports
provided by Agency. Axon will undertake to make such modifications and
improvements to the Product as deemed appropriate by Axon and provide the
same to Agency at no cost; provided, however, Axon is not obligated to make any
modifications or improvements.
5.0 DISCLAIMER OF WARRANTY.THE PRODUCT(INCLUDING THE SOFTWARE, IF ANY,AND
DOCUMENTATION) IS PROVIDED HEREUNDER "AS IS". AXON MAKES AND AGENCY
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RECEIVES NO WARRANTIES IN CONNECTION WITH THE PRODUCT, OR MODIFICATIONS
OR IMPROVEMENTS THERETO, DELIVERED HEREUNDER, EXPRESS,
IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR
COMMUNICATION BETWEEN AXON AND AGENCY. AXON SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE,
NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE.
6.0 OWNERSHIP AND SOFTWARE LICENSE
6.1 Ownership.Agency acknowledges that the Product is loaned to Agency for testing
and that Axon retains ownership of all right, title and interest to the Product, the
Product design and Documentation, and the intellectual property rights therein
and thereto (including without limitation, all patent rights, design rights, copyrights
and trade secret rights) subject to the Software license granted in this Section 6.
Agency agrees not to (i) copy, modify, or reverse engineer the Product hardware
or design, make derivative works based upon the Product, or use the Product to
develop any products,without Axon's prior written approval or(ii)sell, license, rent,
or transfer the Product to any third party.Axon hereby reserves,and Agency hereby
agrees, that Axon shall have a security interest in the Products delivered under this
Agreement. If requested by Axon, Agency agrees to execute and deliver financing
statements or any other instruments, recordings or filings deemed necessary by
Axon to protect and preserve its right, title and interest in and to the hardware
Products under applicable law.
6.2 Software License Grant. Axon hereby grants to Agency and Agency accepts a
personal, non-transferable, non-exclusive license to use the Software subject for
the Test Period solely for the purpose of testing and evaluating the Software.
6.3 Modifications. Agency hereby assigns to Axon, Agency's entire right, title and
interest (including, without limitation, all patent rights, design rights, copyrights
and trade secrets) in any modifications or improvements to the Products which
Agency may propose or make during the Test Period or which Agency and Axon
may jointly make during the Test Period.
7.0 CONFIDENTIAL INFORMATION. Agency acknowledges that, in the course of using the
Products and performing its duties under this Agreement, it may obtain information
relating to the Products and to Axon which is of a confidential and proprietary nature
("Proprietary Information"). Such Proprietary Information may include, but is not limited
to, Trade Secrets, know how, invention techniques, processes, programs, schematics,
software source documents, data, customer lists, financial information, and sales and
marketing plans or information which Agency knows or has reason to know is confidential,
proprietary or trade secret information of Axon.As used in this Agreement, "Trade Secrets"
shall have the meaning ascribed to such term as set forth in A.R.S. § 44-401. Subject to
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section 7.1 below, Agency shall at all times keep in trust and confidence all such
Proprietary Information, and shall not use such Proprietary Information other than as
expressly authorized by Axon under this Agreement, nor shall Agency disclose any such
Proprietary Information to third parties without Axon's written consent. Agency further
agrees to immediately return to Axon all Proprietary Information (including copies thereof)
in Agency's possession, custody, or control upon termination of this Agreement at any
time and for any reason. The obligations of confidentiality shall not apply to information
which (i) has entered the public domain except where such entry is the result of Agency's
breach of this Agreement; (ii) prior to disclosure hereunder was already in Agency's
possession; or (iii) subsequent to disclosure hereunder is obtained by Agency on a non-
confidential basis from a third party who has the right to disclose such information to the
Agency. This provision shall survive any termination of this Agreement.
7.1 Notwithstanding the above, any information submitted to the City may be
requested by a member of the public under the Texas Public Information Act (the
"Act"). Pursuant to the Act, this Agreement does not exempt the claimed
proprietary information given to City from the Act. If the City receives a request
for Axon's proprietary information, Axon will be notified and given an opportunity
to make arguments to the Texas Attorney General's Office (the "AG") regarding
reasons Axon believes that its information may not lawfully be released. If Axon
does not make arguments, the AG rejects the arguments Axon makes, or the AG
otherwise orders City to release the information, Axon's information will be
released to the requesting party without penalty to the City.
8.0 LIMITED LIABILITY.AXON AND AXON'S AFFILIATES OR LICENSORS WILL NOT BE LIABLE
TO AGENCY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR GOODWILL, USE, OR DATA)ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING IS
NOT ENFORCEABLE,AXON'S AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED
TO THE RETAIL VALUE OF THE PRODUCT GIVING RISE TO THE LIABILITY.
9.0 Relationship of the Parties.The Parties are independent contractors and this Agreement
does not create a partnership, franchise,joint venture, agency, fiduciary or employment
relationship between the Parties.
10.0 Right to Audit. Axon agrees that the City, or City's authorized representative, shall, until
the expiration of three (3) years after final payment under this contract, and at no
additional cost to City, have access to and the right to examine and copy any directly
pertinent books, computer disks, digital files, documents, papers and records of the Axon
involving transactions relating to this Agreement. City shall pay Axon for reasonable costs
of any copying in accordance with the standards set forth in the Texas Administrative Code.
The City shall give Axon reasonable advance written notice of intended audits, but no less
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than ten (10) business days.
11.0 Network Access. The City owns and operates a computing environment and network
(collectively the"Network"). If Axon requires access,whether onsite or remote,to the City's
Network to provide services hereunder, and Axon is required to utilize the Internet,
Intranet, email, City database, or other network application, Axon shall separately execute
the City's Network Access Agreement prior to providing such services.A copy of the City's
standard Network Access Agreement can be provided upon request.
12.0 Miscellaneous. Both parties agree that this Agreement and all disputes arising hereunder
will be governed by the laws of the State of Texas without reference to conflict of laws
principles. This Agreement constitutes the complete agreement of the Parties on the
subject matter covered herein and supersedes all prior or contemporaneous
understandings, agreements, or representations, written or oral, of the parties. No waiver
by any Party of any of the provisions hereof shall be effective unless explicitly set forth in
writing and signed by the Party so waiving.This Agreement is binding upon the successors
and assignees of each party. This Agreement may not be amended except by a writing
signed by both parties and expressly declared to be an amendment or modification of this
Agreement. In the event that any one or more of the provisions of this Agreement is
unenforceable, the enforceability of the remaining provisions shall be unimpaired.
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ACCEPTED AND AGREED:
CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the
TPiSUS T. ChGJ2a person responsible for the monitoring and
By. Jesus J.Chapa(Oct 13,202010:17 CDT) administration of this contract, including
Name: Jesus J. Chapa ensuring all performance and reporting
Title: Deputy City Manager requirements.
APPROVAL RECOMMENDED:
By: Sasha Kane(Oct 6,2020 08:49 CDT)
1%1411`f J( kklq tf Name: Sasha Kane
By. Edwin Kraus(Oct 12,202012:43 CDT) Title: Sr. Contract Compliance Specialist
Name: Edwin Kraus 4p4Uv4n�Il
Title: Chief of Police V p F�RTo�'paddd APPROVED AS TO FORM AND
a-e oo o LEGALITY:
ATTEST: a 000 00o*10,
o
aaan rEzpS�aa
��QUd44
By: 'for Ronald P.Gonzales(Oct 13,202011:07 CDT) Name: Taylor Paris
Name: Mary J. Kayser Title: Assistant City Attorney
Title: City Secretary
CONTRACT AUTHORIZATION:
M&C: N/A
Date Approved:
Form 1295 Certification No.:
Axon Enterprise, Inc.
Dooc,u-Signed bby:
By: �F �
Name:Jason Hart Ord
Title: VICE PRESIDENT, Devices
Attachment:
A- Data Development Agreement
OFFICIAL RECORD
CITY SECRETARY
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DATA DEVELOPMENT AGREEMENT
This DATA DEVELOPMENT AGREEMENT("Agreement") is made and entered into as of the date of last signature below
("Effective Date") by and between Axon Enterprise, Inc., located at 17800 North 85th Street, Scottsdale, AZ 85255
("Axon"), and City of Fort Worth located at 200 Texas Street, Fort Worth,TX 76102 ("Customer").Axon and Customer
hereinafter will be referred to individually as"Party"and collectively as"Parties".
WHEREAS Customer is the owner of Customer Content (as defined below) that is uploaded, stored, and managed
through Axon Products(as defined below);and
WHEREAS, Customer agrees to grant Axon certain access to and use of Customer Content to diagnose, improve, and
develop current and future Axon Products, under the terms and conditions outlined herein.
NOW,THEREFORE,in consideration of the mutual covenants,terms and conditions set forth herein,and for other good
and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
I. Access and Use of Customer Content.
Axon does not claim ownership of Customer Content that Customer uploads,stores,or manages in Axon's web services
hosted on Axon Evidence and other related offerings,including,without limitation,interactions between Axon Evidence
and Axon Products (collectively, "Axon Cloud Services"). However, with respect to the Customer Content that is
uploaded,stored or transferred to the Axon Products,Customer hereby grants Axon the right and permission to access
Customer Content, including Evidence data, for diagnosing, improving, and developing current and future Axon
Products.
Customer Content may be copied and copies may be modified,analyzed,and used to create derivative works. Data may
be copied outside of Axon Cloud Services into Axon's Artificial Intelligence (AI)Training Center. Customer Content will
not be used for any purpose other than for those outlined in this Agreement.Customer Content used may not conform
to data retention policies or instructions in Axon Cloud Services.All rights in this section are granted without the need
for any compensation to Customer of any sort beyond the system performance benefits which this data will enable.
This provision,and Axon's continued right and permission to access Customer Content,shall survive any termination of
the Agreement.
As used herein, "Customer Content" means data uploaded into, ingested by, or created in Axon Cloud Services within
Customer's tenant, including, without limitation, media or multimedia uploaded into Axon Evidence by Customer
("Evidence").
As used herein,"Axon Products"means:(1)Axon Cloud Services;(2)devices sold by Axon(including,without limitation,
conducted energy weapons, cameras, sensors, and docking systems) (collectively, "Axon Devices"); (3)other software
offered by Axon (including,without limitation, Axon Capture, Axon Evidence SYNC,Axon Device Manager,Axon View,
Axon Interview,Axon Commander,Axon Uploader XT,and Axon View XL)(collectively,"Axon Client Applications");and
(4)ancillary hardware,equipment,software,services,cloud-based services,documentation,and software maintenance
releases and updates. Axon Products do not include any third-party applications, hardware, warranties, or the
'my.evidence.com'services.
II. Transfer of Data.
Axon will access Customer Content from Customer's Axon Cloud Services tenant. If data is to be copied outside of Axon
Cloud Services, all data transferred from Axon Cloud Services is encrypted in transit. Prior to transfer outside of Axon
Cloud Services, Customer Content is deidentified. For Evidence data, deidentification will occurring by removing
metadata of identifying information, including individual or Customer identifying information.
All Customer Content is protected with strong logical access control mechanisms to ensure only users with appropriate
business needs have access to data. Access control mechanisms are periodically validated by contracted firms.
Customer Content is transferred and retained in the region in which it was uploaded.
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III. Data Security Measures.
Axon is committed to protecting the security of Axon Products and related Customer data. Axon will implement
commercially reasonable and appropriate measures designed to secure Axon Products against access or disclosure.
Axon maintains a comprehensive Information Security Program that includes appropriate technical and organizational
measures intended to protect Axon Products against unauthorized disclosure or access.These measures include logical
and physical access management, vulnerability management, configuration management, incident monitoring and
response,encryption of digital evidence uploaded,security education, risk management,and data protection.Axon will
not disclose Customer Content except as compelled by a court or administrative body or required by any law or
regulation. Axon will give notice if any disclosure request is received for Customer Content so the Customer may file
an objection with the court or administrative body, unless Axon is prohibited from doing so.
Axon has established and implemented policies, programs, and procedures that are commercially reasonable and in
compliance with applicable industry practices, including administrative, technical, and physical safeguards to protect
the confidentiality, integrity, and security of Axon Products against unauthorized access, use, modification, or
disclosure.
Customer will use commercially reasonable efforts to safeguard and limit the disclosure of any Customer Content
restricted from disclosure as required by law, if any. Axon will use commercially reasonable efforts to implement
internal controls and procedures in the event restricted Customer Content is otherwise disclosed to Axon.
IV. Intellectual Property and Ownership.
Ownership of Customer Content. Except as otherwise outlined herein, Customer has, reserves and retains all right,
title, and interest in and to the Customer Content. By uploading or storing Customer Content using the Axon Products,
Customer is affirming that it alone created or otherwise owns the Customer Content and no one else has any rights to
it or could claim they own it or that the same infringes on rights of others.
Ownership of Axon Cloud Services.Customer does not acquire any Intellectual Property(as defined below)right in any
current or future Axon products or services,regardless of whether Axon Products in any manner access or use Customer
Content for the purposes outlined in this Agreement. Other than as outlined in the Agreement,Customer acknowledges
and agrees that it acquires no license to the Axon Cloud Services and that Axon exclusively owns all right, title, and
interest in and to the Axon Cloud Services, its data and any modifications,alterations,translations,or derivative works
relating to the Axon Cloud Services, including, without limitation, any code written by Axon in connection with the
access or use of Customer Content. Without limiting the foregoing, Customer shall not file any application or
registration for any Intellectual Property relating to Axon Products and Customer agrees that it does not receive joint
ownership rights in any Intellectual Property in the Axon Products in current or future form.
"Intellectual Property" as stated herein is defined as, any know-how, patent, trademark, service mark, trade secret,
design, business name, topographical or similar right; any copyright or other intellectual property monopoly right; or
any interest or application (including by way of license).
V. Relationship of the Parties.
This Agreement shall not be deemed to create a joint venture, partnership,or other form of legal association between
the Parties which would impose liability upon one Party for the act or failure to act of the other Party, or to obligate
the Parties to enter into a joint venture, partnership or other such legal association.This Agreement does not create an
agency relationship between the Parties or otherwise to make one Party the legal representative of the other Party.
Nothing contained in this Agreement shall be construed as providing for the sharing of profits, losses, expenses, debts
or liabilities arising out of the efforts of either or both of the Parties. Except as explicitly set forth elsewhere herein,
each Party shall be responsible for all of its own costs incurred in the performance of this Agreement.
VI. Limitation on Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE
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OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY,TORT OR UNDER ANY OTHER LEGAL THEORY. INSOFAR AS APPLICABLE LAW PROHIBITS
ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY
MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.
Customer acknowledges that Axon's access or use of Customer Content under the this Agreement and any derivative
or duplicate works thereof is deidentified; therefore, Axon is unable to retrieve any specific Customer Content in the
event of Customer's loss or corruption of Customer Content,and in no event will Axon be liable for loss of, damage to,
or corruption of Customer Content from any cause.
VII. Miscellaneous
Both parties agree that all disputes arising hereunder will be governed by the laws of the State of Texas without
reference to conflict of laws principles. No waiver of any right or obligation under this Agreement shall be effective
unless in writing and signed by an authorized representative of the Party intended to be bound. This Agreement
contains the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement,
and supersedes all prior agreements or understandings, whether oral and written, with respect to such subject
matter. This Agreement may only be modified or amended in a writing,signed by an authorized representative of each
Party. If for any reason a court of competent jurisdiction determines that any provision of this Agreement, or portion
thereof, is unenforceable,the remainder of this Agreement shall continue in full force and effect.
IN WITNESS WHEREOF,the Parties have each caused this Agreement to be signed and delivered by its duly authorized
representative as of the Effective Date.
AXON: CUSTOMER:
Axon Enterprise, Inc. City of Fort Worth
[9��DSid bY a4 By:
Jason Hartford
Name: Name:Jesus J. Chapa
Title: VICE PRESIDENT, Devices Title: Deputy City Manager
Date: 10/5/2020 1 3:02 PM MST Date: Oct 14, 2020
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