Loading...
HomeMy WebLinkAboutContract 45110 (2).-r i eCITY SECRETARY CoNrRocT ago. £t�J_10 Nixle, LLC Service Agreement — City of Fort Worth, TX This Service Agreement ("Agreement") is entered into by and between Nixie. LLC "Nixle"), and the City of Fort Worth. TX ("Customer"), on .14 ‘.b 13 (the "Effective Date"). Nixie J and Customer are each hereinafter sometimes referred to as a 'Party" and collectively, the "Parties." THE PARTIES AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING THE USE OF NIXLE'S SERVICE 1. SERVICE. Nixie shall provide Customer access to its proprietary interactive communication services (the "Service") subject to the terms and conditions set forth in this Agreement, the Additional Business Terms applicable to such Services in Exhibit A. and the description of Services and pricing attached hereto as Exhibit B (the "Quote"). If applicable, Nixie shall provide training and professional services in accordance with the Pricing (as defined below) set forth in the Quote. Nixie shall provide Customer with login and password information for each User (as defined below) and will configure the Service to contact the maximum number of persons or communication devices (each a "Contact") purchased by Customer as set forth in the Quote. Nixie may from time to time offer Customer new features, enhancements or services which, if accepted by Customer in writing, and subject to Customer's payment of any applicable additional fees, shall become part of the Services and subject to the provisions of this Agreement. 2. INTENTIONALLY OMITTED. 3. CUSTOMER RESPONSIBILITIES. 3.1 Users. Customer shall in its discretion authorize certain of its employees and contractors to access the Service ("User(s)"). Each User must be bound in writing to confidentiality obligations that are no less restrictive than those set forth herein, and that are sufficient to permit Customer to fully perform its obligations under this Agreement. Customer shall cause Users to undergo initial setup and training in accordance with the Quote. Customer shall be responsible for (i) ensuring that Users maintain the confidentiality of all User login and password information; (ii) ensuring that Users use the Service in accordance with all applicable laws and regulations, including those relating to use of personal information; (iii) any breach of the terms of this Agreement by any User; and (iv) all communications by Users using the Service. Customer shall immediately notify Nixle if it becomes aware of any User action or omission that would constitute a breach or violation of any term of this Agreement. 3.2 Customer Data. All electronic data Customer provides to Nixie in connection with the use of the Service ("Customer Data") shall be true, accurate, current and complete, and shall be in a form and format specified by Nixie. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. By purchasing the Service, Customer authorizes Nixie to collect, store and process Customer Data subject to the terms of this Agreement. Customer shall maintain a copy of all Customer Data it provides to Nixie. The Customer will be limited to no more than 300,000 voice recipients, correlating with the customer's population of households. If Customer or any User provides any Customer Data that is untrue, inaccurate, outdated or incomplete, Customer acknowledges and agrees that any RE CF VEO NMI 1`tl 20i3 communications sent utilizing the Service may not reach the intended Contact. Customer shall prevent unauthorized access to, or use of, the Service, and shall notify Nixie promptly of any such unauthorized use. Nixie shall have no liability for any losses, damages, claims, suits or other actions arising out of or in connection with the unauthorized or improper use of the Service on Customer's hardware or networks. Customer acknowledges that Nixie is not responsible for monitoring Customer or Users' use of the Service to examine the content passing through it, and Nixle shall have no liability for such content. 4. TERM. This Agreement will commence on the Effective Date and will continue in force for one (1) year ("Initial Term"). This Agreement may be renewed at Customer's discretion for successive one-year terms (each a "Renewal Term") and collectively with the Initial Term, the "Term") unless terminated in writing not less than sixty (60) days prior to the expiration of the then current Term. 5. TERMINATION; SUSPENSION. 5.1 Termination by Either Party. Either Party may terminate this Agreement for any reason upon 60 days written notice to the other Party. Either Party may terminate this Agreement upon the other Party's material breach of this Agreement, provided that (i) the non - breaching Party sends written notice to the breaching Party describing the breach in reasonable detail; (ii) the breaching Party does not cure the breach within thirty (30) days following its receipt of such notice (the "Notice Period"); and (111) following the expiration of the Notice Period, the non -breaching Party sends a second written notice to the breaching Party indicating its election to terminate this Agreement. 5.2 Termination by Customer. In the event no funds or insufficient funds are appropriated by the Customer in any fiscal period for any payments due hereunder, Customer will notify Nixle of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Customer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 6. PROPRIETARY RIGHTS. 6.1 Grant of License. Nixie hereby grants to Customer, during the Term of this Agreement, a non-exclusive, non -transferable, non- sublicensable right to use the Service subject to the terms and conditions of this Agreement. Upon suspension of the Service or termination of this Agreement for any reason, the foregoing license shall terminate automatically and Customer shall promptly discontinue all further use of the Service. 6.2 Restrictions. Customer shall use the Service solely for its internal business purposes and shall not make the Service available to, or use the Service for the benefit of, any third party except as expressly contemplated by this Agreement. Customer shall not: (i) copy, modify, reverse engineer, de -compile, disassemble or otherwise attempt to discover or replicate the computer source code and object code provided or used by Nixle in connection with delivery of the Service (the "Software") or create derivative works based on the Software, the Service or la portion=thereof; (ii) merge any of the OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Nixie Standard Terms of Service 01.16.13 1 foregoing with any third party software or services; (iii) use any Nixie Confidential Information to create a product that competes with the Software* (iv) remove, obscure or alter any proprietary notices or labels on the Software or any portion of the Service; (v) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than on Customer's own intranets for its own internal business purposes; (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; or (vi) use the Service in violation of any applicable law or regulation. 6.3 Reservation of Rights. Other than as expressly set forth in this Agreement, Nixie grants to Customer no license or other rights in or to the Service, the Software or any other proprietary technology, material or information made available to Customer through the Service or otherwise in connection with this Agreement (collectively, the "Nixle Technology '), and all such rights are hereby expressly reserved. Nixie (or its licensors where applicable) owns all rights, title and interest in and to the Service, the Software and any Nixie Technology and all patent, copyright, trade secret and other intellectual property rights ("IP Rights') therein, as well as (i) all feedback and other information (except for the Customer Data) provided to Nixie by Users, Customer and Contacts, (ii) all transactional, performance and derivative data and metadata generated in connection with the Services, and (iii) any De -Identified Data (as defined below). 6.4 Customer Data. As between the Parties, Customer retains sole right, title and interest in the Customer Data. Without limiting the foregoing, Nixie shall be permitted to de -identify Customer Data and aggregate it, including with other customers' data (the "De - Identified Data") for use in its legitimate marketing and research activities. 7. CONFIDENTIAL INFORMATION. 7.1 Definition; Protection. As used herein, "Confidential Information" means all information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure Confidential Information includes without limitation, any personally identifiable Customer Data, all Nixie Technology, and either Party's business and marketing plans, technology and technical information, product designs, reports and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; (iv) is received from a third party without breach of any obligation owed to the Disclosing Party; or (v) is required to be disclosed pursuant to applicable law, rule, ordinance, regulation or court order The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than performance or enforcement of this Agreement without the Disclosing Party's prior written consent, unless (but only to the extent) otherwise required by a governmental authority. Each Party agrees to protect the Confidential Information of the other Party with the same level of care that it uses to protect its own confidential information, but in no event less than a reasonable level of care Without limiting the foregoing, the Customer Data shall be Confidential Information of Customer. 8. WARRANTIES; DISCLAIMER. 8.1 Nixle Warranty. Nixie shall use commercially reasonable efforts to provide the Services herein contemplated. To the extent the Quote provides for any professional services, Nixie shall perform them in a professional manner consistent with industry standards. THE FOREGOING REPRESENT THE ONLY WARRANTIES MADE BY NIXLE HEREUNDER AND NIXLE EXPRESSLY DISCLAIMES ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 8.2 Disclaimer. THE SERVICE IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE' BASIS. NEITHER NIXLE NOR ITS LICENSORS WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL NIXLE HAVE ANY LIABILITY TO CUSTOMER, USERS, CONTACTS OR ANY THIRD PARTY FOR PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE SERVICE TO DELIVER AN ELECTRONIC COMMUNICATION, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF NIXLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 8.3 Customer Representations and Warranties. Customer represents and warrants that during use of the Service, Customer shall have primary safety and emergency response procedures including without limitation, notifying 911 or equivalent fire, police, emergency medical and public health officials (collectively, "First Responders"). Customer acknowledges and agrees that Nixie is not a First Responder, and that the Service does not serve as a substitute for Customer s own emergency response plan, which in the event of an actual or potential threat to person or property, shall include contacting a First Responder. Customer represents and warrants that all communications utilizing the Service shall be sent by authorized Users, and that the collection storage and processing of Customer Data, and the use of the Service, as provided in this Agreement, will at all times comply with (x) Customer s own policies regarding privacy and protection of personal information; and (y) all applicable laws and regulations, including those related to processing, storage, use, disclosure security, protection and handling of Customer Data. 9. INDEMNIFICATION. 9.1 By Customer. Intentionally deleted. 9.2 By Nixle. Nixie shall defend, indemnify and hold Customer harmless from and against any Claim against Customer but only to the extent it is based on a Claim that the Service directly infringes an issued patent or other IP Right in a country in which the Service is actually provided to Customer. If the Service is held to infringe and the use enjoined, Nixie shall have the option, at its own expense, to: (i) to procure for Customer the right to continue using the Service; (ii) replace same with a non -infringing service; (iii) modify such Service so that it becomes non -infringing; or (iv) refund any fees paid to Nixie and terminate this Agreement without further liability. Nixie shall have no liability for any Claim arising out of (w) Customer Data or other Customer supplied content, (x) use of the Service or Software in combination with other products, equipment, software or data not supplied by Nixle, (y) any use, reproduction, or distribution of any release of the Service or Software other than the most current release made available to Customer or (z) any modification of the Service or Software by any person other than Nixle. 10. LIMITATION OF LIABILITY. In no event shall either Party have any liability to the other Party for any loss of use, interruption of business, lost profits, costs of substitute services, or for any other indirect, special, incidental, punitive, or consequential damages, however caused, under any theory of liability, and whether or not the Party has been advised of the possibility of such damage. Notwithstanding anything in this Agreement to the contrary, except in the event of gross negligence or intentional misconduct by Nixie, in no event shall Nixle's aggregate liability, regardless of theory of liability, exceed amounts actually paid by Customer to Nixie hereunder during the 12-month period prior to the event giving rise to such liability. 11. PRICING. As consideration for the Service and subject to the other terms of this Agreement, Customer shall pay the fees set forth in the Quote ("Pricing") If Customer exceeds the usage as specified in the Quote, then Nixie reserves the right to annually review the usage and invoice Customer as necessary at the current rates and Customer shall pay within 30 days of invoice. Fees for professional services, if applicable, shall be set forth in a SOW. 12. PROFESSIONAL SERVICES. Nixie may provide professional services to Customer from time to time. Such professional services shall, unless otherwise expressly therein set forth, be provided in accordance with, and subject to, the provisions hereof and any additional terms related thereto which are set forth in a Statement of Work ("SOW"). 13. PAYMENT TERMS; TAXES. 13.1 Payment. Unless otherwise set forth in Exhibit A, Nixie shall invoice Customer in advance for the Initial Term and annually in advance for any Renewal Term. All payments, including, without limitation, fees for professional services, shall be made within thirty 30 days from the date of invoice. If any fee is not paid within thirty 30 days after it is due (in addition to any other rights and remedies that Nixie may have hereunder without limitation), Nixie reserves the right to charge interest at a rate of one and half one percent per month or the highest rate allowed by Applicable Law whichever is lower. 13.2 Taxes Unless otherwise provided for in Exhibit A, or in a SOW, as the case may be, Nixle's Pricing and fees for professional services do not include any local state federal or foreign taxes, levies, or duties of any nature ("Taxes"). Customer is a tax exempt entity and shall not be responsible for paying taxes under this Agreement. Customer shall provide Nixie with a valid tax exemption certificate authorized by the appropriate taxing authority. 14. MISCELLANEOUS. 14.1 Non -Solicitation. As additional protection for Nixle's proprietary information, for so long as this Agreement remains in effect and for one year thereafter, Customer agrees that it shall not, directly or indirectly, solicit, hire or attempt to solicit any employees of Nixie; provided, that a general solicitation to the public for employment is not prohibited under this section. 14.2 Force Majeure; Limitations. Neither Nixie nor Customer shall be responsible for performance under this Agreement to the extent precluded by circumstances beyond either Party's reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest acts of terror, labor problems, computer, telecommunications, Internet service provider or hosting facility failures, or delays involving hardware, software or power systems, and network intrusions or denial of service attacks. The Service delivers information for supported Contact paths to public and private networks and carriers, but cannot guarantee delivery of the information to the recipients. Final delivery of information to recipients is dependent on and is the responsibility of the designated public and private networks or carriers. 14.3 Waiver; Severability. The failure of either Party hereto to enforce at any time any of the provisions or terms of this Agreement shall in no way be considered to be a waiver of such provisions. If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed deleted and the remaining provisions shall continue in full force and effect. 14.4 Assignment. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned (including an assignment by operation of law), or otherwise transferred, in whole or in part, by either Party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other Party. 14.5 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws rules 14.6 Marketing. Customer consents to Nixie referencing Customer's name and logo as a Nixie customer in Nixie publications, its website and in other marketing materials In referencing Customer's name and logo, Nixie agrees to comply with Customer's logo use policy, which will be provided upon request. 14.7 Survival. Sections 3, 4 5, 6, 7, 8, 9, 10, 13 14 and applicable provisions of Exhibit A shall survive the expiration or earlier termination of this Agreement. 14.8 Counterparts. This Agreement may be executed in one or more counterparts, all of which together shall constitute one original document. A facsimile transmission or copy of the original shall be as effective and enforceable as the original. 14 9 Export Compliant. Neither Party shall export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date set forth below. NIXLE, LLC By: Prin Name: Jay Burchfield Title: Senior Sales Manager Date: July 9.2013 Address: 594 Howard St, Suite 204 San Francisco, CA 94105 [CUSTOMER] : City of Fort Worth. TX By: Print Na e: Charles Daniels Title: Assistant City Manager Date: II. 12. /A Customer's address for legal notices: 1000 Throckmorton Street Fort Worth. Texas 76102 Attn: Eric Carter Customer's address for billing: 1000 Throckmorton Street Fort Worth. Texas 76102 Attn: Emergencv Management Coordinator Email for billing: Telephone number: Approved to F and L Assistant City Attorney M&C: --IIRoo( Date Approved: 1 t 'Se ZQ OFFICIAL RECORD CITY SECRETARY 4 594 Howard St, Suite 204, San Francisco, CA 94105 * call: 877.649.5362 * fax: 856.802.0245 * www.nixle.com EXHIBIT A SERVICE LEVEL AGREEMENT Section I— Availability Nixie provides a high performance, scalable and reliable Software as a Service solution (the "Service"). The Service will have a monthly broadcast availability' of 99.99% or greater, allowing for real-time call prioritization which provides optimal service to customers at all subscribed service levels2. 'Broadcast Availability — is defined as the ability to access the Service in conjunction with the ability to send a notification to one or more contact paths per member. 2Subscribed Service Levels — Nixie uses a proprietary Intelligent Message Service Prioritization (IMSP) algorithm to ensure optimal delivery of emergency messages for all customers at all subscribed service levels. Section II — Performance Minimum Notification Attempts: For any given 60 minute period, Nixie will make a minimum number of notification attempts to the 1st contact path for customer broadcasts using the standard configuration (30 second call or 500 character message) per the table below: i i Minimum number of notification attempts in 60 minutes Notification Type Notification Attempts Voice 100,000 Text 100,000 Minimum number above does not apply when client uses the broadcast delivery throttling feature. Section III— Maintenance The Service utilizes a geographically redundant architecture to provide the highest levels of reliability while requiring the lowest number of maintenance activities per year compared with other notification solutions on the market. Scheduled maintenance is designed to be non service impacting. Nixie may periodically conduct routine maintenance or implement upgrades to the Service as needed to maintain availability and performance within our agreed upon SLA's. Section IV — Support Nixie has a dedicated team of experienced, patient, and capable support professionals to assist customers with answering questions about the services, customer usage, and to address specific issues. Nixie Support is available 24 hours a day, 7 days a week, 365 days a year. Support should be contacted for all technical inquiries associated with the Nixie Solutions. The best method for submitting an inquiry is the Nixie Client Portal. To best serve our clients' needs, the following methods are available to obtain technical assistance. Urgent inquiries must be reported by phone or the Nixle Client Portal to ensure the quickest response. • Online Support: Client Portal Nixle's Client Portal provides you with convenient, secure access to a growing number of useful resources, including Know on the Go's, knowledgebase content, FAQs, case management, and other product support information. The Client Portal can be accessed at: http://clientoortal.Nixle.com. • Email Su000rt Email support is available at supportilii Nixle.com. E-mails are responded to within one business day in the order received. • Phone Support Nixie Support can be reached via phone by dialing toll -free (866) 436-4911 in the US/Canada, or +1 (818) 230-9798 for local and intemational callers. Nixie also provides an emergency hotline for assisting customers in sending notifications. • Live Operator Access Customers may access the Nixie Live Operator to send notifications 24 hours a day, 7 days a week, 365 days a year. 5 • n i 594 Howard St, Suite 204, San Francisco, CA 94105 " call: 877.649.5362 " fax: 856.802.0245 1` www.nixle.com NIXLE PRICING INFORMATION PREPARED FOR: Setup and Implementation Product N ixle VOICE Setup Fee Annual Subscription Product Nixie VOICE Annual License: Unlimited Emergency Voice 50 Keyword Public Groups IPAWS Integration 24 Hour Live Support Customized Implementation i Exhibit B QUOTE Confidential Eric Carter, Juan Ortiz City of Fort Worth, TX NIXLE VOICE UPGRADE 1 1 Qty Qty Quote Number: Quote Date: Expiration Date: Contract Period: Payment Terms: Nixie Contact: 301-140I 30-Aug-13 30-Sep-13 1 Year Net 30I Jay Burchfield Term' Price One -Time Cost $24,500.00 Terml Price Annual Purchase Price: 1 $45,500.00 $70,000.00 6 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 11/5/2013 DATE: Tuesday, November 05, 2013 REFERENCE NO.: **P-11601 LOG NAME: 13P13-0270 NIXLE VOICE SUBJECT: Authorize Sole Source Service Agreement with Nixie LLC, for Telephone Notification Services to Integrate with the Federal Emergency Management Agency Integrated Public Alert and Warning System for the Fire Department in the Amount of $70,000.00 for the First Year (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize a sole source Service Agreement with Nixle LLC, for telephone notification services to integrate with Federal Emergency Management Agency Integrated Public Alert and Warning System for the Fire Department in the amount of $70,000.00 for the first year. DISCUSSION: On June 8, 2012, the Fire Department, Office of Emergency Management (OEM) purchased a subscription from Nixle LLC to provide a platform to issue emergency e—mail and text message warnings to the public. The Nixle service is used to issue emergency alerts to both the general public and City departments The purchase of Nixle Voice an add on module to the existing Nixle service, will allow the City to send emergency telephone notifications to listed, unlisted and registered cellular telephone numbers in addition to the messaging component As an added feature, integration with the Federal Emergency Management Agency Integrated Public Aleit and Warning System (IPAWS) will allow the City to issue geographically targeted alerts to cellular telephone users. Nixle LLC is the documented sole source provider for support and maintenance of the existing Nixle Emergency Notification System. M/WBE OFFICE — A waive' of the goal for MBE/SBE subcontracting requirements was requested by the department and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the M/WBE Waive' is solicited based on the sole source information provided to the M/WBE Office by the managing department s project manager. PRICE ANALYSIS — The annual subscription fee for the original text/messaging alert platform was in the amount of $24,500.00, which included a $2,500.00 set up charge. The set up fee for the voice add on module is m the amount of $24,500.00 and the amount of $45 500.00 annual subscription fee which includes unlimited voice, IPAWS integration and 24—hour support. Staff finds this price fair and reasonable. ADMINISTRATIVE CHANGE ORDER — An administrative change order or increase may be made by the City Manager in the amount up to $17 500.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. f AGREEMENT TERMS — Upon City Council's approval, this Agreement will be effective upon execution for a term of one year. RENEWAL OPTIONS — This Agreement may be renewed annually for one—year terms, in accordance with the Service Agreement. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. Staff anticipates that the costs for renewal years will be the same as the first year FISCAL INFORMATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Grants Fund. BQN\13-0270\CBR FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers GR76 539120 036442607030 CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS 1. 13 0270 Approved Sole Source.pdf 2. 13 0270 Approved Waiver.pdf 3. 13 0270 Nixle Ouote.pdf 4. 13-0270 SAM — Nixle111.pdf 5. Available Funds.pdf Susan Alanis (8180) Susan Alanis (8180) Jack Dale (8357) Camillia Ryan (8321) $70.000.00