HomeMy WebLinkAboutContract 44939 (2)CITY MCREiriA{z`
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This Trial Agreement ("Agreement") is entered into this 27th day of September, 2013 (the "Effective Date") by and between DriveCam, Inc., a Delaware
corporation, with its principal place of business at 8911 Balboa Ave, Suite 200, San Diego, California 92123 ("DriveCam") and City of Fort Worth TX
("Government").
RECITALS
WHEREAS, DriveCam develops, markets, sells and provides driving risk management products and related services focused on improving
driver safety and reducing operating costs for commercial fleets;
WHEREAS, Government desires to receive such products and services for evaluation purposes on a trial basis at the trial locations specified
herein
NOW, THEREFORE, the parties agree as follows:
1. CERTAIN DEFINITIONS
"Documentation" means the written Software
and Hardware related specifications DriveCam provides to
Government hereunder, which shall include terms of use
posted on www.drivecam.com or other applicable DriveCam
websites. DriveCam shall notify Government of any
additional applicable DriveCam websites and Government
shall only be bound by the terms contained in those websites
of which Government has actual notice.
"Hardware" means DriveCam's VERs and
associated hardware provided to Government hereunder.
"Managed Services" means the analysis and
reporting by DriveCam of driving events captured by the
Products installed in Government's vehicles.
"Products" means the Software and Hardware
described on Attachment A to be provided to Government for
use during the Trial Period. Attachment A also sets forth,
the quantity for each Product and Service, the requested
delivery schedule and the delivery location.
"Services" means the Managed Services,
installation services, training services and any additional
support and maintenance services to be provided hereunder.
"Software" means any software provided to
Government under this Agreement, including, without
limitation, the operating software embedded in the Hardware
and the the DriveCam Online® software (including any
software made available by DriveCam for use by
Government on a website hosted by or on behalf of
DriveCam).
"Trial Period" means the period from the Effective
Date until the date one hundred twenty (120) days from the
Service Date, unless earlier terminated as provided below.
"VER" means a DriveCam video event recorder.
2. PRODUCTS
All Products are provided only for the Trial Period. Title to
the Products shall remain at all times with DriveCam.
Government shall not encumber or otherwise permit any
claims or liens to be levied against the Products.
Government shall not take _or permit any action inconsistent
with DriveCam's ownership or allow any third party to
modify, service or repair the Products. Government shall
use and maintain the Products with ordinary care and only in
accordance with the Documentation and any other
instructions that may be provided DriveCam. Government
shall not remove or alter any proprietary notice of any kind
from the Products. Upon the expiration or termination of this
Agreement, unless the Government enters into a separate
agreement to purchase the Products, Government shall
RECEIVE.D Pi,
1
(within ten (10) days from such expiration or termination)
return the Products to DriveCam in good condition.
3. SERVICES
DriveCam will use commercially reasonable efforts to
provide the Services With respect to Managed Services,
such services will be initiated on or about November 1, 2013
("Service Date") and shall end upon expiration or
termination of the Trial Period. Government agrees to
provide DriveCam with reasonable cooperation and access
to all necessary Government personnel, facilities and
equipment (including the Products) for the purpose of
performing its obligations hereunder.
4. SOFTWARE; RESTRICTIONS
4.1 Subject to the terms of this Agreement, during the
Trial Period, DriveCam grants Government a nonexclusive,
nontransferable license to access and use the Software and
Managed Services for Government's internal fleet
management purposes only, without the right to sublicense
such rights, provided Government unconditionally agrees to
access and use the Software and Managed Services strictly
in accordance with the Documentation and this Agreement
("License"). Under the License, Government may print out,
or otherwise make, printed copies ("Copies") of the reports,
numeric results and other information and materials
generated from Government's access and use of the
S oftware and Managed Services for internal fleet
management purposes only. Any updates, modifications,
enhancements or new versions of the Software or Managed
S ervices provided or made available to Government by
DriveCam, in accordance with this Agreement, shall be
considered Software and Managed Services subject to this
Agreement.
4.2 Except as otherwise expressly provided in this
Agreement, Government agrees to: (a) only use the
S oftware and Managed Services in the manner, and for the
purposes, expressly specified in this Agreement, (b) not
decompile, disassemble analyze or otherwise examine the
S oftware and Managed Services for the purpose of reverse
engineering, or facilitate or permit a third party to do so
(except to the extent this restriction is expressly prohibited
by applicable law); (c) not delete or in any manner alter any
notice, disclaimers or other legends contained in the
S oftware and Managed Services or appearing on any
screens, documents, reports, numeric results or other
materials obtained by Government through use of the
S oftware and Managed Services ("Notices"); (d) reproduce
and display all Notices on Copies Government makes, in
accordance with this Agreement, (e) not attempt to access
any systems, programs or data of DriveCam that are not
licensed under this Agreement; (f) not copy, reproduce,
republish, upload, post, transmit or d stribut , the Software or
OFFICIAL k-ECORD
CITY SECRETARY
FT, MOR1flII, TX
Managed Services, or any portion thereof, or facilitate or
permit a third party to do so; and (g) not use any device or
software to interfere or attempt to interfere with the proper
operation of the Software and Managed Services.
5 NO COST TRIAL
The acceptance of Products and Services for demonstration,
testing, or evaluation is not to be construed in any way as an
acceptance or offer to accept such Products and Services
for Government use or as any promise implied that any
contract to buy is to follow from the demonstration test, or
evaluation. Notwithstanding the foregoing, in the event that
the evaluation results in the Government determining to
acquire the Products and Services being evaluated
hereunder the Government agrees to pay for the costs of
installation and training services that were provided to the
Government by DriveCam during the Trial Period, subject to
receipt by the Government of all necessary approvals and
funding. If the Government determines not to acquire the
trial Products and Services, no such fees shall be due.
6. CONFIDENTIALITY, CLIENT DATA
6.1 During the term of this Agreement, each party (a
"Disclosing Party") may provide the other party (a
"Receiving Party") with confidential and/or proprietary
materials and information ("Confidential Information") All
materials and information provided by Disclosing Party to
Receiving Party shall be considered Confidential
Information. The terms and pricing under this Agreement
shall be deemed DriveCam's Confidential Information.
Receiving Party shall maintain the confidentiality of the
Confidential Information and will not disclose such
information to any third party without the prior written
consent of Disclosing Party. Receiving Party will only use
the Confidential Information internally for the purposes
contemplated hereunder. At any time, upon Disclosing
Party's request, Receiving Party shall return to Disclosing
Party all Disclosing Party's Confidential Information in its
possession, including without limitation, all copies and
extracts thereof. Notwithstanding the foregoing, (i)
DriveCam's only obligations with respect to destruction of
video clips generated by VERs shall be to comply with its
standard video clip retention policy and (u) Receiving Party
may disclose Confidential Information to any third -party to
the limited extent necessary to exercise its rights, or perform
its obligations, under this Agreement provided that, all such
third parties are bound in writing by obligations of
confidentiality and non-use at least as protective of the
Disclosing Party's Confidential Information as this
Agreement. In the event that Receiving Party is requested
or required (by oral questions, interrogatories, requests for
information or documents in legal proceedings subpoena,
civil investigative demand or other similar process) to
disclose any Confidential Information of Disclosing Party,
Receiving Party shall provide Disclosing Party with prompt
written notice of any such request or requirement so that
Disclosing Party may seek a protective order or other
appropriate remedy and/or waive compliance with the
provisions of this Agreement In the event that such
protective order or other remedy is not obtained, Receiving
Party agrees to furnish only that portion of the Confidential
Information for which Disclosing Party has waived
compliance or for which Receiving Party is advised by
written opinion of counsel, reasonably satisfactory to
Disclosing Party, is required by law, rule, regulation or court
order.
6.2 The obligations contained in this Section 6 shall
not apply to information that: (a) is or becomes generally
known to the public through no act or omission of the other
party (b) was in the Receiving Party's lawful possession
prior to the disclosure and was not obtained by the
Receiving Party either directly or indirectly from the
Disclosing Party; (c) is lawfully disclosed to the other party
by a third -party without restriction on disclosure; or (d) is
independently developed by the Receiving Party without use
of or reference to the Disclosing Party's Confidential
Information.
6.3 As between DriveCam and Government,
Government shall own the information, data and content
captured by the Products in Government's possession,
provided that, such Products are used in accordance with
the terms and conditions of this Agreement (Data"); the
Data will be Government's Confidential Information; provided
that, DnveCam shall have the right to use such Data (i) in
connection with its performance hereunder and (ii) internally,
to improve DriveCam's products and services. DriveCam
shall have the nght (which shall survive termination and
expiration of this Agreement) to use and disclose the non -
video and non -audio meta -data components of the Data for
any purposes; provided that, DriveCam does not indicate to
any third party that such components were provided by
obtained from, or associated with, the Government or
Government's drivers. Such usage rights shall continue and
survive destruction of any video clips to which such non -
video and non -audio meta -data components relate.
7 TERMINATION
Either party may terminate this Agreement without cause,
upon 10 days prior written notice and immediately if the
other party breaches any material term or condition of this
Agreement and fails to correct such breach within such
thirty (30) days.
8. LIABILITY AND INDEMNIFICATION
DRIVECAM SHALL INDEMNIFY, DEFEND, AND HOLD
HARMLESS GOVERNMENT FROM AND AGAINST ANY
AND ALL DAMAGES TO THE EXTENT SUCH DAMAGES
ARISE OUT OF OR RELATE TO THE FOLLOWING: (A)
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF DRIVECAM OR ITS REPRESENTATIVES IN THE
PERFORMANCE OF DRIVECAM'S OBLIGATIONS UNDER
THIS AGREEMENT OR (B) ANY CLAIMS THAT
GOVERNMENT HAS VIOLATED OR INFRINGED THE
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY IN THE USE OF ANY PRODUCT PROVIDED TO
GOVERNMENT UNDER THIS AGREEMENT OR IN THE
USE OF ANY PRODUCT AS PERMITTED BY THIS
AGREEMENT.
DRIVECAM AGREES TO DEFEND, SETTLE OR PAY, AT
ITS OWN COST AND EXPENSE ANY CLAIM OR ACTION
AGAINST GOVERNMENT FOR INFRINGEMENT OF ANY
PATENT COPYRIGHT TRADE SECRET OR SIMILAR
PROPERTY RIGHT ARISING FROM GOVERNMENT'S
USE OF THE PRODUCT(S) IN ACCORDANCE WITH THIS
AGREEMENT. DRIVECAM SHALL HAVE THE SOLE
RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH
CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS
SETTLEMENT OR COMPROMISE AND TO SETTLE OR
COMPROMISE ANY SUCH CLAIM, AND GOVERNMENT
AGREES TO COOPERATE WITH IT IN DOING SO.
GOVERNMENT AGREES TO GIVE DRIVECAM TIMELY
WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION,
WITH COPIES OF ALL PAPERS GOVERNMENT MAY
RECEIVE RELATING THERETO IF THE PRODUCTS OR
ANY PART THEREOF ARE HELD TO INFRINGE AND THE
USE THEREOF IS ENJOINED OR RESTRAINED OR, IF
AS A RESULT OF A SETTLEMENT OR COMPROMISE,
2
SUCH USE IS MATERIALLY ADVERSELY RESTRICTED,
DRIVECAM SHALL, AT ITS OWN EXPENSE AND AS
GOVERNMENT'S SOLE REMEDY, EITHER: (A) PROCURE
FOR GOVERNMENT THE RIGHT TO CONTINUE TO USE
THE PRODUCTS; OR (B) MODIFY THE PRODUCTS TO
MAKE THEM NON -INFRINGING, PROVIDED THAT SUCH
MODIFICATION DOES NOT MATERIALLY ADVERSELY
AFFECT GOVERNMENT'S AUTHORIZED USE OF THE
P RODUCTS; OR (C) REPLACE THE PRODUCTS WITH
EQUALLY SUITABLE, COMPATIBLE, AND
FUNCTIONALLY EQUIVALENT NON -INFRINGING
P RODUCTS AT NO ADDITIONAL CHARGE TO
GOVERNMENT; OR (D) IF NONE OF THE FOREGOING
ALTERNATIVES IS REASONABLY AVAILABLE TO
DRIVECAM, TERMINATE THIS AGREEMENT AND
REFUND TO GOVERNMENT THE PAYMENTS ACTUALLY
MADE TO DRIVECAM UNDER THIS AGREEMENT.
9. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO THE INDEMNITY
OBLIGATIONS SET FORTH IN SECTION 8 ABOVE, IN NO
EVENT WILL DRIVECAM OR ITS LICENSORS,
SUPPLIERS, OR DISTRIBUTORS, BE LIABLE WITH
RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR: (I) ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES; (II) THE COST OF
PROCUREMENT OF SUBSTITUTE PRODUCTS OR
SERVICES; (III) FOR INTERRUPTION OF USE OR LOSS
OR CORRUPTION OF DATA; OR (IV) FOR ANY
AMOUNTS THAT EXCEED $100. DRIVECAM AND ITS
LICENSORS, SUPPLIERS, AND DISTRIBUTORS SHALL
HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE
TO MATTERS BEYOND THEIR REASONABLE CONTROL.
10. WARRANTY AND DISCLAIMER
EXCEPT FOR DRIVECAM'S STANDARD PRODUCT
WARRANTY WHICH SHALL APPLY DURING THE TRIAL.
DRIVECAM AND ITS LICENSORS, SUPPLIERS AND
DISTRIBUTORS HEREBY DISCLAIM ALL WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
P URPOSE DRIVECAM AND ITS LICENSORS,
S UPPLIERS, AND DISTRIBUTORS MAKE NO WARRANTY
THAT THE SOFTWARE WILL WORK IN COMBINATION
WITH ANY HARDWARE OR SOFTWARE PRODUCTS
P ROVIDED BY THIRD PARTIES, THAT THE OPERATION
OF THE SOFTWARE WILL BE UNINTERRUPTED OR
ERROR FREE, THAT ALL DEFECTS IN THE SOFTWARE
THE PARTIES HEREBY AGREE TO THE FOREGOING TERMS AND CONDITIONS:
DRIVECAM, INC.
Authorized Signature
Name: William J. Ruff
Title: SVP Finance
Address: 8911 Balboa Avenue. San Diego. CA 92
Aciested
CAN BE CORRECTED, OR THAT ANY SPECIFIC RESULT
OR OUTCOME WILL BE ACHIEVED BY UTILIZING THE
PRODUCTS OR SERVICES. FURTHER, NEITHER
DRIVECAM, ITS LICENSORS, SUPPLIERS, NOR
DISTRIBUTORS MAKES ANY WARRANTY THAT ACCESS
TO THE SERVICES OR ASSOCIATED NETWORK
COVERAGE (E.G. WIRELESS NETWORK COVERAGE)
WILL BE CONTINUOUS OR UNINTERRUPTED.
11. TRADENAMES AND TRADEMARKS
This Agreement does not grant to any party a license to use
any trademark, trade name or logo of the other party, and
each party recognizes that the trademarks, trade names and
logos of the other party represent valuable assets of that
party and that substantial recognition and goodwill are
associated with such trademarks, trade names and logos.
Each party hereby agrees that it shall not use or permit any
third party to use, at any time, the other party's trademarks,
trade names or logos.
12. GENERAL
Each party shall comply with all applicable laws and
regulations. DriveCam is an independent contractor under
this Agreement. Nothing in this Agreement creates a
partnership, joint venture, or agency relationship between
the parties. All notices under this Agreement shall be in
writing, and shall be deemed given when personally
delivered, when sent by confirmed fax, or three days after
being sent by prepaid certified or registered U.S. mail to the
address of the party to be noticed as set forth herein or such
other address as such party last provided to the other by
written notice. This Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their
respective successors and permitted assigns, and shall not
be enforceable by or inure to the benefit of any third party.
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 This Agreement supersedes all
proposals (oral or written), negotiations, or discussions
between parties relating to the subject matter of this
Agreement and all past dealing or industry custom. No
changes, modifications or waivers are to be made to this
Agreement unless evidenced in writing and signed for and
on behalf of both parties. In the event that any provision of
this Agreement shall be determined to be illegal or
unenforceable, that provision will be limited or eliminated to
the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without
regard to the conflicts of laws provisions thereof.
CITY OF F ! ' T WORTH TX
Authorized Signature
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ASSaf-• elly Ranger
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APPROVED AS TO FORM AND LEGALITY:
•
ser, City Seem
Mjs#clTv ATTORNEY
•i=M.t. - .11JI - - -
ATTACHMENT A
TRIAL PRODUCTS
Details are. Trial 50 DC3P units, 120 days with Fuel and Fleet Tracking — NO FEDs. Standard Installs 6 E-
learning + 1 post WebEx Training As of now the trial will take place in Public Works — Water Department.
State of California County of San Diego }ss.
On r6011 2 ?WO?, before me Walter E. Pue a N v
Public, personalty appeared %✓/ /k.M .T: aC 6� ,
who proved to me on the basis of satisfactory evidence to be the
personal) whose name(a) ,slave subscribed to the within v situflreM and
acknowledged to me that he/she/they executed the same In ISities4their
authorized capacity(leej; and that by his/hartlbeir signature(s) on the
Instrument the person(s), or the entity upon behalf of which the person(p)
acted, executed the instrument. 1 certify under PENALTY OF PERJURY
under the laws of the State of California that the foregoing paragraph is
true and correct. WITNESS my hand and official seal.
WALTER E. PUESCHEL
Commission # 1981874
Notary Public - California
San Diego County
My Comm. Expires Jul 9, 2016
M&C Review
10/3/2013 11:02:35 AM
official site of the City of Fort Worth, Texas
k, CIL AG I� I� DL��, FORT
WoRT1I
COUNCIL ACTION: Approved on 9/24/2013
DATE: 9/24/2013 REFERENCE NO.: **C-26460 LOG NAME: 21 DRIVECAM AJC
CODE: C TYPE: CONSENT PUBLIC NO
FHEARING:
SUBJECT: Authorize Execution of a Trial Agreement with DriveCam, Inc., for Trial Use of Fifty DCP3
Event Recorders for the Water Department (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Trial Agreement with DriveCam,
Inc., for the use of fifty DCP3 Event Records on Water Department vehicles.
DISCUSSION:
In an effort to pursue optimum driver efficiency the Water Department desires to enter into this trial
Agreement to test the effectiveness of this event recording system. The DriveCam, Inc., product
works similar to other products that track vehicle location and driver behavior. In addition, this system
is equipped with a camera that records driver and vehicle activity during any driving event.
DriveCam, Inc., develops, markets, sells and provides driving risk management products and related
services focused on improving driver safety and reducing operating costs for commercial fleets. The
City of Fort Worth desires to receive such products and services for evaluation purposes on a trial
basis. Fifty DCP3 units will be installed on Water Department vehicles for a length of 120
days. These units include a fuel and fleet tracking system. Standard installation will be provided by
DriveCam, Inc. In addition, six E-learning sessions and one post WebEx training will be provided as
part of the trial.
This product records driver events based upon unusual actions of the vehicle. These events are
reviewed by DriveCam, Inc., staff and the information is provided to the City when events
occur. These events assist in providing data for assistance in risk management, safety and training.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that no expenses will be generated from the
trial Agreement.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for Citv Manaaer's Office bv: Charles Daniels (6199)
Originating Department Head: Wayne Corum (5118)
Additional Information Contact: Wayne Corum (5118)
ATTACHMENTS
DC00004282 Citv of Forth Worth TX Trial 50 Units.pdf
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