HomeMy WebLinkAboutContract 60576CSC No. 60576
ADDENDUM TO MASTER SUBSCRIPTION AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
TOOLWATCH, LLC
This Addendum to the Master Subscription Agreement ("Addendum") is entered into by
and between ToolWatch, LLC ("Vendor") and the City of Fort Worth ("City"), collectively the
"parties."
The Contract documents shall include the following:
1. The ToolWatch, LLC Master Subscription Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Master Subscription
Agreement, collectively referred to herein as the "Agreement"), the parties stipulate by evidence
of execution of this Addendum below by a representative of each party duly authorized to bind the
parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be
applicable to the Agreement as follows:
1. Term. The Agreement shall commence upon the date signed by the Assistant City
Manager below ("Effective Date") and shall expire no later than one year after it is signed
("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement
or otherwise extended by the parties. This Agreement may be renewed for four (4) one-year
renewal periods at the City's option, each a "Renewal Term." The City shall provide Vendor with
written notice of its intent to renew at least thirty (30) days prior to the end of each term.
2. Compensation. The City shall pay Vendor an amount not to exceed four thousand,
two hundred fourteen dollars ($4,214.00) in accordance with the provisions of this Agreement
which is attached hereto and incorporated herein for all purposes. Vendor shall not perform any
additional services for the City not specified by this Agreement unless the City requests and
approves in writing the additional costs for such services. The City shall not be liable for any
additional expenses of Vendor not specified by this Agreement unless the City first approves such
expenses in writing. City agrees to pay all invoices of Vendor within thirty (30) days of receipt of
such invoice. Vendor may charge interest on late payments not to exceed one percent (1%).
3. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either parry commits a material breach of the Agreement, the non -
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
OFFICIAL RECORD
CITY SECRETARY
Addendum FT. WORTH, Tx Page 3 of 11
receipt of notice from the non -breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non -breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
4. Attornevs' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
5. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
6. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
Addendum Page 4 of 11
7. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by
Governmental Units," is self -insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self -insured status as
requested by Vendor.
8. Sovereign Immunitv. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
9. Limitation of Liability and Indemnity. Vendor agrees the exclusions or limits of
liability, as may be stated elsewhere in the Agreement, shall not apply to the City's claim or loss
arising from any of the following: (a) Vendor's breach of its data security obligations; (b) Vendor's
misuse or misappropriation of the City's intellectual property rights, (c) Vendor's indemnity
obligations, or (d) any other obligations that cannot be excluded or limited by applicable law. To
the extent the Agreement, in any way, requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
10. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8, Vendor shall have the 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; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City 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; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non -infringing, provided that such modification does not
Addendum Page 5 of 11
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non -infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
11. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws, and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
12. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
13. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
14. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
Addendum Page 6 of 11
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
15. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
16. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
17. Immigration Nationalitv Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
18. No Bovcott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
19. Ri2ht to Audit. Vendor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
Addendum Page 7 of 11
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
20. Prohibition on Bovcottin2 Ener2v Companies. Vendor acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that
has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. The terms "boycott energy company"
and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not boycott energy companies; and (2) will not boycott energy companies during the term of
this Agreement.
21. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of $100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm
trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not have a practice, policy, guidance, or directive that discriminates against a firearm entity
or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
22. Insurance.
1.1. The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
1.1.1. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per occurrence;
$4,000,000 aggregate; or
1.1.1.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury.
Addendum Page 8 of 11
1.1.1.3. Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability Insurance
requirements per the amount required by statute.
1.1.3. Technology Liability (Errors & Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per occurrence;
$4million aggregate or
1.1.3.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury. The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy. Defense costs
shall be outside the limits of liability.
1.1.3.3. Coverage shall include, but not be limited to, the following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Vendor under this
Agreement;
1.1.3.3.6. Technology coverage may be provided through
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Vendor and may not exceed $50,000
without the written approval of the City. Coverage shall be claims -made,
with a retroactive or prior acts date that is on or before the effective date
of this Agreement. Coverage shall be maintained for the duration of the
contractual agreement and for two (2) years following completion of
services provided. An annual certificate of insurance, or a full copy of the
Addendum Page 9 of 11
policy if requested, shall be submitted to the City to evidence coverage;
and
1.1.3.3.7. Any other insurance as reasonably requested by
City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees, officers,
officials, agents, and volunteers in respect to the contracted services.
1.2.2. The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of the City of Fort Worth.
1.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable
in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City
Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII in the
current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and
solvency to the satisfaction of Risk Management. If the rating is below that required,
written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all
required insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
(signature page follows)
Addendum Page 10 of 11
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City:
Dalla D-WqhGiO�
By: Dana Burghdoff (Dec t'202310:46 CST)
Name: Dana Burghdoff
Title: Assistant City Manager
Date: Dec 7, 2023
Vendor:
By: 7eaa"011- 0
Name: Jay Martin
Title: CEO, ToolWatch, LLC
Date: Nov 21, 2023
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
By: Christopher Hafder (Dec 1, 2023 06:51 CST)
Name: Christopher Harder
Title: Director, Water Department
Approved as to Form and Legality:
By:
Name:
Title:
Taylor Paris
Assistant City Attorney
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
By: Nanc Ho eysuckle (Nov 21, 2023 17:35 CST)
Name: Nancy Honeysuckle
Title: Safety Manager, Water Department
City Secretary:
�'Voo'
PVo .=e
a
By:
Name: Jannette S. Goodall
Title: City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 11 of 11
92 SAFETY REPORTS
a WATCH company
From: Safety-Reports.com, Inc.
Federal Tax ID# 36-3782347 Phone: (402) 403-6575
400 Inverness Parkway, Suite 250 info@safety-reports.com
Englewood, CO 80112
City of Fort Worth Water Utility
To: 200 Texas St
Fort Worth, Texas 76102
Product/Solution # of Licenses Cost/User/Yr
Training App-Enterprise, Full User- 1 $50.00
(Annual)
Inspection -Enterprise, Full User- 6 $694.00
(Annual)
Order
Start Date: 11/17/2023
Quote Expires: 12/31/2023
Annual Prorated
Investment Investment
$50.00
$4,164.00
TOTAL:
"Please don't hesitate to contact us if you have any questions."
Terms & Conditions
The terms offered in this Order Agreement are valid for 20 days from the Quote Date noted above.
$0.00
$1,041.00
$1,041.00
This is not an Invoice. Please remit funds upon receipt of the Invoice according to payment terms above. Amounts shown above are in US Dollars
and do not include sales tax or shipping which will be added to the invoice, if applicable. Hardware purchases must be paid for prior to being
shipped.
ToolWatch's Master Subscription Agreement ("MSA"), which consists of this Order Agreement and the General Terms and Conditions published
on ToolWatch's website @ https://www.toolwatch.com/twsrMSA as of the Quote Date stated above, is agreed to between Subscriber (as
evidenced by Subscriber's signature below) and ToolWatch and shall govern the use of the Service and all subscriptions, products, and services
ordered by Subscriber hereunder in all cases. In the event of any conflict between anything in the General Terms and Conditions and this Order
Agreement, this Order Agreement shall govern and be controlling.
Renewal subscriptions, as well as additional subscriptions purchased during the Order Agreement subscription term, will be priced based on
the list price at the time of renewal or additional subscriptions. Any such renewal or additional subscription will be coterminous with the original
subscription term. Renewals will be invoiced approximately every 30 days.
This Order Agreement may be signed and delivered electronically, and by submitting it in that way, we understand and agree that the electronic
signatures (and any electronic signatures we may use in the future) are the legal equivalent of a manual/handwritten signature and are as valid
as if the document had been "wet -signed" in writing. Electronic signatures may be used on any future documentation with a signature requirement
should we sign such documentation electronically. Under penalty of perjury, I affirm that my electronic signature is, and all future electronic
signatures will be, signed with full knowledge and consent, and that we are legally bound to the terms and conditions of this MSA, including this
Order Agreement.
Dana �GIYahi0# Dec 7 2023
Signature: Dana B"rghdoff (Dec}, 2023 10:46'CST) Effective Date: , /
Name (Print): Dana Burghdoff Title: Assistant City Manager
A� p Nov 2 2023
For ToolWatch, LLC: Acceptance Date: � /
THANK YOU FOR YOUR BUSINESS!
Safety-Reports.com, Inc. 1 400 Inverness Parkway, Suite 250 1 Englewood, CO 80112 1 (800) 676-4034
Page 1 of 1
ToolWatch, LLC
Master Subscription Agreement
General Terms and Conditions
1. Overview
ToolWatch, LLC, which does business under the name ToolWatch Corporation, is a Colorado limited liability
company (that we refer to as "ToolWatch" or "we" or "us" or "our" (as the context requires). ToolWatch is
in the business of providing the ToolWatch platform, which is a cloud -based, intuitive, centralized database
system that enables the management of tools, equipment, inventories, operations and logistics coordination for
all warehouse and field operation assets of organizations typically in construction, contracting and related
industries (which we refer to as the "Service").
We are publishing these General Terms and Conditions ("T & C's") on our website to state the general terms
and conditions that govern the legal relationship between us and any person, firm or entity that subscribes for
the Service (which we refer to as a "Subscriber" or "you") with our permission.
At the time you sign up for the Service you must also sign a separate, written Order Agreement that we will also
sign, which states the specific terms that apply to your subscription and acknowledges that you agree to these T
& C's. These T & C's and the related Order Agreement(s) now or later entered into between us evidence the
agreement between us with respect to the Service. We refer to this agreement as the "Master Subscription
Agreement," the "MSA" or the "Agreement."
A "Subscriber" may include other persons, firms or entities that are affiliated with the Subscriber (a
"Subscriber Affiliate") if the Subscriber Affiliate is identified to us by the original Subscriber in the Order
Agreement and we agree in writing to allow the Subscriber Affiliate to use the Service under the MSA entered
into by the Subscriber, with any changes or amendments to the original MSA as are agreed upon by the
Parties. Reference to the "Subscriber" or "you" in these T & C's includes, to the extent applicable, any
permitted Subscriber Affiliate(s).
When you sign up for the Service we will provide you with access to the Service, including a smart client
interface and data encryption, access and storage, and by signing the MSA, or using the Service, you are agreeing
to abide by the MSA, including these T & C's as modified by any applicable Order Agreement.
ToolWatch and the Subscriber are sometimes referred to in these T & C's individually as a "Party" and
collectively as the "Parties," and collectively, as the context indicates, as "us" or we.
2. Definitions
As used in the MSA, the following terms have the meanings set forth below. Other defined terms have the
meanings stated elsewhere in these T & C's or in any related Order Agreement(s). Any conflict between a
definition appearing in these T & C's and a meaning ascribed to such term in a related Order Agreement(s) shall
be resolved by reference to the Order Agreement(s).
a. "Administrator(s)" means that User or those Users designated by you who are authorized to create User
accounts and otherwise administer your use of the Service.
b. "Agreement" or "Master Subscription Agreement" or MSA means these T & C's and each Order
Agreement and other Addendum or written amendment entered into between us, as the same may be
amended in writing from time to time as permitted under this MSA. All such documents shall be read
v2021.11.01 Page 1 of A
together and consistently to reflect the terms of the agreement between the Parties. In interpreting the
agreement of the Parties, a later executed document shall supersede an earlier executed document to the
extent that it modifies or amends it or is inconsistent with the earlier executed document.
c. "Assets" or "Licensed Assets" mean the tools, equipment, materials and consumables or other assets
entered into, tracked, and monitored by the ToolWatch Technology as part of the Service. For purposes
of determining applicable fees, the number of Licensed Assets means the number of uniquely identified
(using an individual SKU) tools, assets, items or other equipment or group of quantity tools or materials,
identified as a group with a unique SKU (e.g., a specific power tool with a unique SKU counts as one
asset, fifty of the same screwdriver with one SKU for all fifty [quantity tools] is counted as one asset).
d. "Content" means the audio and visual information, documents, software, products and services
contained or made available to you while using the Service.
e. "Control" and "Change of Control" means the following: "Control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise. "Change of Control"
with respect to a person means any of the following: (a) the sale of all or substantially all the assets of
the person; (b) any merger, consolidation or acquisition of a person or any person who Controls a person,
with, by or into another corporation, entity or person; or (c) any change in the ownership of more than
fifty percent (50%) of the voting capital stock of a person or any person who Controls a person in one
or more related transactions. For purposes of this paragraph, the term "person" refers to an individual
or corporation, partnership, trust, association, or other organization.
f. "Customer Data" means any data, information or material provided or submitted by you to the Service
while using the Service.
g. "Effective Date" means the latest date indicated next to the signature of either you or us on the initial
Order Agreement signed by both of us.
h. "Initial Term" means the initial period during which you are obligated to pay for the Service under the
initial Order Agreement.
i. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights,
copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how
and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of
protection of a similar nature anywhere in the world.
j. "Law" means any law, statute, regulation, order or rule of any government, governmental agency, court,
arbitration panel or tribunal that has jurisdiction over and is therefore applicable to the Parties to this
Agreement.
k. "License Term(s)" means the period(s) during which the authorized Users are licensed to use the Service
pursuant to the Order Agreement(s) as then in effect and as modified from time to time.
1. "Licensed Assets" has the meaning set included in the definition of "Assets" above.
in. "Non-U.S. Customers" shall have the meaning set forth in Section 15 of these T & C's.
n. "Order Agreement(s)" means the form evidencing the initial subscription for the Service and any
subsequent Order Agreements submitted online or in written form, specifying, among other things, the
number of Licensed Assets and other services contracted for, the applicable fees, the billing period, and
other charges as agreed to between the Parties, with each such Order Agreement to be incorporated into
v2021.11.01 Page 2 of 14
and to become a part of this Agreement. In the event of any conflict between the terms of this Agreement
and the terms of any such Order Agreement, the terms of this Agreement shall prevail and be controlling.
o. "ToolWatch" means collectively ToolWatch, LLC d/b/a ToolWatch Corporation, a Colorado limited
liability company with its principal place of business at 400 Inverness Pkwy, Suite 450, Englewood,
CO 80112. ToolWatch is also referred to in these T & C's as "we" and "us."
p. "ToolWatch Technology" means all of ToolWatch's proprietary technology (including software,
hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other
tangible or intangible technical material or information) made available to you by us in providing the
Service, including any of our Intellectual Property Rights therein.
q. "U.S. Customers" shall have the meaning set forth in Section 15 of these T & C's.
r. "Service(s)" means the specific edition (i.e., Pro, Enterprise, etc.) of our software applications, data
analysis, or other enterprise resource planning (ERP) services identified during the ordering process,
developed, operated, and maintained by us, and accessible via htto:Hentemrise.toolwatch.com or
another designated web site or IP address, or ancillary online or offline products and services provided
to you by us, to which you are being granted access under this Agreement, including the ToolWatch
Technology and the Content.
s. "Subscriber" means the customer that signs this Agreement, and shall include for purposes of all
representations, warranties and agreements hereunder, all Users designated by such Subscriber and
any Subscriber Affiliate who becomes entitled to access the Service under this Agreement. Subscriber
is also referred to in these T & C's as "you."
t. "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized
to use the Service and have been supplied user identifications and passwords by you (or by us at your
request).
3. Privacv & Security: Disclosure
Our privacy and security policies that apply to the relationship between the Parties who use the Service may be
viewed at httD://www.toolwatch.com/comDanv/Dolicies.html. and which, as amended from time to time, are
hereby incorporated herein and are a part of this Agreement.
We reserve the right to modify our privacy and security policies in our reasonable discretion from time to time
by posting changes to those policies on our website. Changes to our privacy and Security policies that are posted
to our Website will become effective as of the time of posting.
Individual Users, when they initially log in, will be asked whether they wish to receive marketing and other non-
critical Service -related communications from us from time to time. Each User may opt out of receiving such
communications at that time or at any subsequent time by changing their preference under the Personal Setup
page within the website through which the Service is accessed by Users. Because the Service is a hosted, online
application, we may occasionally need to notify all Users of the Service (whether or not they have opted out as
described above) of important announcements regarding the operation of the Service, and notifications of this
sort are hereby consented to and shall not be deemed a violation of any opt -out election made by a User.
v2021.11.01 Page 3 of 14
4. License Grant & Restrictions
Once you sign and we accept you as a Subscriber under the applicable Order Agreement and you make payment
for the Service in accordance with the Order Agreement you have a license under which you have a non-
exclusive, non -transferable, worldwide right to use the Service for the Licensed Term, solely for your own
internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted
to you are reserved by us and our licensors.
You may not allow access to the Service to an employee, representative, consultant, contractor or agent of/to a
direct competitor of ours, except with our prior written consent. For these purposes, a "direct competitor" of
ToolWatch includes, but is not limited to, any person, firm, company or other organization that offers or is
proposing to offer a service that would or could compete with or replace the Service, whether the competing
service is offered with or without charge by the provider. In addition, you may not access the Service for purposes
of monitoring its availability, performance or functionality, or for any other benchmarking or competitive
purpose.
Except as specifically approved by us in writing in advance, you shall not (i) license, sublicense, sell, resell,
transfer, assign, distribute or otherwise commercially exploit or make available to any third -party the Service or
the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create
Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet -
based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service,
(b) build a product based on, incorporating or using similar ideas, features, functions or graphics as those of the
Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and may not use the Service to: (i) send spam
or otherwise duplicative or unsolicited messages in violation of applicable Law; (ii) send or store infringing,
obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children
or violative of third -party privacy rights; (iii) send or store material containing software viruses, worms, Trojan
horses, tracking software or other harmful computer code, files, scripts, agents or programs; (iv) interfere with
or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain
unauthorized access to the Service or its related systems or networks.
Certain editions of the Service offer integration capabilities via an application programming interface (API). We
reserve the right to limit the rate of calls to the API, and the total number of API calls in each period to a rate
and number that we deem commercially reasonable. You may purchase additional API access if your rates and
numbers consistently exceed those we deem commercially reasonable, and we will notify if this becomes an
issue that requires you to purchase additional access rights to the API.
5. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by, and require all Users
to abide by, this Agreement and all applicable local, state, national and foreign Laws, treaties and regulations in
connection with use of the Service, including those related to data privacy, international communications and
the transmission of technical or personal data. You must: (i) notify us immediately of any unauthorized use of
any password or account or any other known or suspected breach of security; (ii) report to us immediately and
use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or
suspected by any of your Users; (iii) not impersonate another ToolWatch user or provide false identity
information to gain access to or use the Service; and (iv) refrain from introducing data or computer code into the
systems used to operate or provide the Service that contains any viruses, worms, Trojan horses, tracking
software, files, scripts, agents or programs containing any harmful or illegal components. These obligations
apply to all Users that you authorize to access the Service, or any other person who accesses the Service under
any User password issued to you or any of your Users. You must take reasonable steps to assure that all Users
you authorize to access the Service are aware of your obligations under this Agreement, and you are liable for
v2021.11.01 Page 4 of 14
any breaches of this Agreement by any User accessing the Service under your subscription or the rights granted
to you under this Agreement.
6. Account Information and Data
We do not own any Customer Data. You have sole responsibility for the accuracy, quality, integrity, legality,
reliability, appropriateness, intellectual property ownership and rights to use all Customer Data, and we are not
responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data
caused by you or any of your Users.
We have the right to (i) collect, process, store, and summarize Customer Data, including manipulating such data
in any manner we deem appropriate (provided that such data does not remain specifically identifiable to a
particular subscriber or user). We shall not provide, disclose or sell Customer Data that is identifiable to any
subscriber to any third -parry without the prior written consent of that subscriber.
7. Se2re2ation of Companv Data
Notwithstanding any other provision of this Agreement, we promise that we will maintain all Customer Data
in a secure and logically separate manner (i.e., identified as Customer Data that is specific only to you as the
Subscriber) from our data or the data of our other customers and subscribers.
8. Data Privacv
In order to comply with Regulation (EU) 2016/679, General Data Protection Regulation (GDPR), the
California Consumer Privacy Act (CCPA), the Personal Information Protection and Electronic Documents Act
(PIPEDA — Canada), and other related data privacy regulations (collectively referred to as "Data Protection
Laws"), we agree as follows: 1) In the event that we receive or have access to personal data of yours, your
employees, contractors or any third parties that is subject to Data Protection Laws ("Personal Data") during
the course of providing the Services, we will not use or process the Personal Data for any purpose other than
those purposes designated in this Agreement and any related agreements or on written instructions you deliver
to us outside this Agreement; 2) each Parry undertakes to comply with all Data Protection Laws applicable to it
and will not knowingly cause the other to breach Data Protection Laws; 3) we will implement all appropriate
organizational and technical security measures in order to ensure a level of security appropriate to the risks that
are presented by the processing of any Personal Data and to protect the Personal Data against accidental or
unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data transmitted,
stored or otherwise processed by us; and 4) in case of a data breach which may affect Personal Data, we will
notify you as soon as reasonably practicable upon becoming aware of such breach.
9. Scheduled Maintenance Windows
We reserve the right to perform regular maintenance and upgrade tasks during scheduled maintenance
windows. Normal Scheduled Maintenance Windows do not usually affect availability of the Service, however
in some circumstances the Service may not be available, and in such case, we will notify you in advance (in
accordance with Section 27 of this Agreement, which may include posting of such notice on our website or on
the interface by which you and your Users accesses the Service), and the Service will not be considered
unavailable during such maintenance window for purposes of our obligations under this Agreement.
10. Unplanned Service Interruptions
In the event of an unplanned event that impacts the availability or performance of the Service, we will use
commercially reasonable efforts to restore service/performance of the Service as quickly as possible. Should
v2021.11.01 Page 5 of 14
any unplanned interruption of service be expected to be of significant duration, we will notify Users of the
event and anticipated resolution time, including periodic updates as appropriate.
11. Intellectual Property Ownership
We alone (and/or our licensors, where applicable) own all right, title and interest, including all related Intellectual
Property Rights, in and to the ToolWatch Technology, the Content and the Service and any suggestions, ideas,
enhancement requests, feedback, recommendations or other information provided by you or any other party
relating to the Service, and you and your Users hereby convey and transfer to us all rights in and to such
suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or
your Users relating to the Service in consideration of the rights granted to you in this Agreement. This Agreement
is not a sale and does not convey any rights of ownership in or related to the Service, the ToolWatch Technology
or our Intellectual Property Rights or those of any ToolWatch licensor, to you.
The ToolWatch name, the ToolWatch logo, and the product names associated with the Service are our
trademarks. You hereby grant to us the express right to use your company logo in marketing, sales, financial,
and public relations materials and other communications solely to identify you as a ToolWatch customer. We
hereby grant to you the express right to use the ToolWatch logos solely to identify us as a provider of services
to you. Other than as expressly stated herein, neither of us may use the other Party's marks, codes, drawings or
specifications without the prior written permission of the other Party.
12. Third-Partv Interactions
During use of the Service, you may engage in correspondence with, purchase goods and/or services from, or
participate in promotions of third -party advertisers or sponsors showing their goods and/or services through the
Service. All activity, and any terms, conditions, warranties or representations associated with such activity, are
solely between you and the applicable third -party. We and our licensors shall have no liability, obligation or
responsibility for any such correspondence, purchase or promotion between you and any such third -party. We
do not endorse any sites on the Internet that are linked through the Service and provide these links to you only
as a matter of convenience, and in no event shall we or our licensors be responsible for any content, products, or
other materials on or available from such sites. You recognize, however, that certain third -party providers of
ancillary software, hardware or services may require you to agree to additional or different license or other terms
prior to your use of or access to such software, hardware or services, and you are solely responsible for
compliance with the terms thereof, and for any consequences to you or anyone using the Service under this
Agreement resulting from such use. We advise you that we may receive a nominal commission from a third
party linked through our website if you purchase goods or services from that third party.
v2021.11.01 Page 6 of 14
13. Charges and Pavment of Fees; Addition of Assets and/or Services
We employ a fee model based on the product service(s) requested by you coupled to the number of assets we
are managing for you. We will work with Administrator(s) to determine the service level needed along with the
number of assets managed, which will determine the license fee for the License Term. The applicable fees,
charges and billing terms are outlined in the related Order Agreement(s). You agree to pay all fees or charges to
your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due
and payable. Payments must be made annually consistent with the Initial Term, or as otherwise mutually agreed
upon in an Order Agreement. All payment obligations are non -cancelable, and all amounts paid are
nonrefundable so long as we continue to provide the Service to you in accordance with the terms of this
Agreement. You are responsible for paying the fees stated in an applicable Order Agreement for the entire
License Term, whether you fully use the capacity ordered or not. You must provide us with valid credit card,
check, or a purchase order approved by us as a condition to signing up for and accessing the Service.
An authorized Administrator may add services or additional assets to those stated in an existing Order Agreement
by executing an additional written Order Agreement and submitting it to us for approval. Adding assets or
additional services to the license will be subject to the following: (i) such additions will be coterminous with the
preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added assets and/or
services will be the then current, generally applicable license fee for those services and licenses unless explicitly
stated otherwise in the related Order Agreement; and (iii) assets or services added in the middle of a billing year
will be charged for the number of days remaining in the License Term on a prorated basis. We reserve the right
to increase fees payable by you in our sole discretion if you utilize services in excess of those described in the
Order Agreement(s) or for asset levels exceeding those stated in the Order Agreement(s). In such case, we will
provide you with not less than 30 days written notice that we intend to increase fees, and we will allow you to
cure the excess(es) prior to the end of the 30 days in order for you to avoid the price increase. All pricing terms
are confidential, and you agree not to disclose them to any third party, except as required by applicable Law.
14. Excess Data Storage Fees
We reserve the right to establish or modify our general practices and limits relating to storage of Customer Data.
In the event there is to be an increase in the price of stored data, we will notify you no less than 30 days in
advance of the effective date of the price change. We will also provide you with advance written notice if your
storage of Customer Data is coming close to reaching our data storage limits for the service level and asset
numbers stated in your Order Agreement, and we will provide you with an opportunity to modify your Customer
Data storage practices prior to charging you for any additional Customer Data storage.
15. Billing and Renewal
We charge and collect all amounts due for use of the Service in advance.
At the end of the License Term, unless we have previously notified you in writing of our decision to terminate
this Agreement at the end of the then current License Term, we will automatically renew and bill your credit
card (if you have authorized that method of payment) or issue an invoice to you, unless you have provided us
with a written request to cancel the renewal at least sixty (60) days prior to the renewal date. The renewal
License Term will be extended for the same period as the expiring License Term or for one (1) year, whichever
is greater, unless otherwise mutually agreed upon between the Parties. The fees for the renewal License Term
will be equal to the then -current license fee for the service level and total number of Licensed Assets we are
managing for you at the time of renewal.
You will be responsible for any fees for other services we provide to you on an as -quoted basis. Our fees are
exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be solely responsible for
payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on
v2021.11.01 Page 7 of 14
our income; provided, however, that if you owe any taxes, levies, or duties required by Law, we may collect and
pay them on your behalf..
You agree to provide us with complete and accurate billing and contact information, which must include your
legal company name, street address, e-mail address, and the name and telephone number of an authorized billing
contact and Administrator. You must update this information within 30 days of any change to it. If you provide
us with contact information for you or any User that is false or fraudulent, we shall be entitled, without further
notice or action on our part, to immediately terminate your access to the Service, in addition to any other remedies
available to us under this Agreement or applicable Law.
Unless we in our discretion determine otherwise: (i) entities with headquarters and a majority of Users resident
in the United States will be billed in U.S. dollars and shall be subject to U.S. payment terms and pricing ("U.S.
Customers"); and (ii) all other entities will be billed in U.S. dollars, Euros or local currency (as we may agree
upon) and shall be subject to either U.S. or non-U.S. payment terms and pricing at our discretion ("Non-U.S.
Customers").
If you believe that any invoice we send to you is incorrect, you must contact us in writing within 60 days of the
invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Any delay by you to so notify us beyond such 60-day period shall constitute your acceptance of such invoice
and the correctness of the amounts stated thereon. Upon receipt of any written objection from you, we will
promptly investigate the item in dispute and thereafter notify you promptly in writing of our disposition of the
dispute.
16. Non-Pavment and Suspension
In addition to any other rights granted to us herein, we reserve the right to suspend your access to the Service if
your account becomes delinquent (falls into arrears). Delinquent invoices are subject to interest charges of 1.5%
per month on any outstanding balance, or the maximum permitted by Law, whichever is less. In addition, you
will be responsible to pay us all expenses of collection, including attorney fees and costs we incur to collect the
amount due. We will continue to charge you the current fee for licenses held by you during any period of
suspension. If you or we initiate termination of this Agreement, you will be obligated to pay the balance due on
your account, computed in accordance with the Charges and Payment of Fees section (Section 13) above. We
may charge unpaid fees to your credit card (if you have authorized payment to be made that way) or bill you for
unpaid fees, and you shall immediately pay them.
We reserve the right to impose a reconnection fee in the event your account has been suspended and you
thereafter request to access the Service. Any reconnection fee will not exceed the then current implementation
fee we charge to new customers utilizing similar services as those you will be using upon reconnection.
17. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date and continues until all subscriptions for licenses granted in
accordance with this Agreement have expired or otherwise been terminated.
In the event this Agreement is terminated (other than by reason of your breach), we will make a file of the
Customer Data available to you, in a non-proprietary format, within thirty (30) days of termination if you request
it at the time of termination. You understand and agree that we have no obligation to retain your Customer Data
and may delete it without retaining a copy 180 days after termination of this Agreement for any reason.
v2021.11.01 Page 8 of 14
18. Termination for Cause
If you breach any of your payment obligations, allow unauthorized use of the ToolWatch Technology or Service
or otherwise fail to comply with this Agreement, those acts will be deemed a breach of this Agreement if you
have not cured such breach within ten (10) days of written notice of the breach provided to you in accordance
with Section 27 of these T & C's. Following any such breach, we may, in our sole discretion, terminate all your
passwords, accounts and your rights to use the Service. You agree and acknowledge that we have no obligation
to retain your Customer Data, and that we may delete it (resulting in irretrievable loss of such Customer Data)
if you have breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach
has not been cured within ninety (90) days of notice to you of such breach provided to you in accordance with
Section 27 of these T & C's.
You may terminate this Agreement for cause upon any material breach by us of our obligations under this
Agreement, if we have not cured the breach within thirty (30) days of written notice of such breach provided by
you in accordance with Section 27 of these T & C's. Upon such termination, we will reimburse you for fees paid
by you hereunder for the unused portion of the remaining License Term of this Agreement.
19. Representations & Warranties
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement and that
doing so will not cause the Party to breach or be in violation of any obligation or agreement to which the Party
is bound.
We represent and warrant that as to those aspects of the Service which are under our sole and exclusive control
(i) the Service will operate in a secure and timely manner, (ii) stored Customer Data will remain accurate and
reliable, and (iii) material errors and/or defects in the Service will be corrected, all in a manner consistent with
general industry standards reasonably applicable to the provision of similar services by companies similarly
situated to us; and that the Service will perform substantially in accordance with our online help documentation,
when used under normal circumstances.
You represent and warrant that: (i) you have not provided any false or misleading information to us in the process
of entering into this Agreement, including information falsely identifying yourself or any person associated with;
(ii) you have not provided any false or misleading information to us to gain access to the Service; and (iii) that
all information you have provided to us is correct and complete.
20. Mutual Indemnification
You shall indemnify and hold us, our licensors and each such party's parent organizations, subsidiaries, affiliates,
officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection
with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third -
party; (ii) a claim, which if true, would constitute a violation of your representations and warranties; or (iii) a
claim arising from your breach of this Agreement. In any such case we will (a) give you prompt written notice
of the claim; (b) give you sole control of the defense and settlement of the claim (provided that, you may not
unilaterally settle any claim unless such settlement unconditionally releases us and our Affiliates of all liability
to you and any third -party, and such settlement does not negatively affect our business, reputation or the Service);
(c) provide you all reasonably available information and assistance; and (d) not compromise or settle such claim
without your prior written consent. You will keep us reasonably apprised of the status of any claims for which
we are entitled to indemnification under this Agreement.
We shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors,
employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities
and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that
v2021.11.01 Page 9 of 14
the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third -
party; (ii) a claim, which if true, would constitute a violation by us of our representations or warranties; or (iii)
a claim arising from our breach of this Agreement. In any such case, you will (a) promptly give us written notice
of the claim; (b) give us sole control of the defense and settlement of the claim (provided that, we may not
unilaterally settle any claim unless it unconditionally releases you and your Affiliates of all liability); (c) provide
us with all reasonably available information and assistance; and (d) not compromise or settle such claim without
our prior written consent. We shall have no indemnification obligation, and you shall indemnify us pursuant to
this Agreement, for claims arising from any infringement arising solely from the combination of the Service
with any of Subscriber's Customer Data, products, service, hardware or business process(s).
21. DISCLAIMER OF WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 19 HEREOF, WE AND OUR LICENSORS MAKE
NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS,
QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE
SERVICE OR ANY CONTENT, AND DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE
SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR -FREE OR OPERATE IN
COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE
SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL
BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION,
OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SERVICE WILL MEET YOUR
REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE
SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 19 HEREOF
OR ELSEWHERE IN THIS AGREEMENT, THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU
STRICTLY ON AN "AS IS" BASIS, AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON -INFRINGEMENT OF THIRD -PARTY RIGHTS, ARE HEREBY DISCLAIMED TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TOOLWATCH AND ITS
LICENSORS.
22. Internet Delays
The services we are providing under this Agreement may be subject to limitations, delays, and other problems
inherent in the use of the Internet and electronic communications in general. You understand and agree that we
are not responsible for any delays, delivery failures, or other damage resulting from such problems.
23. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS
ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL
EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF A SIMILAR
TYPE OR KIND (INCLUDING DAMAGE FOR LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER
ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE,
INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY
CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY,
ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM
WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
v2021.11.01 Page 10 of 14
24. Force Maieure
Neither Party will be liable for any failure to perform any of its obligations under this Agreement, other than
payment obligations, by reason of any matters beyond such Party's reasonable control, including, but not
limited to, fire, explosions, earthquakes, storms, flood, wind, drought or other acts of God or the elements;
acts, decrees, delays or failures to act by civil, military or other governmental authorities; riots, insurrections,
terrorism, sabotage or war; court orders; strikes, lockouts, and labor disputes; destruction of, or damage or
casualty, due to one or more of the reasons or the matters described above in this Section, to any third -party
equipment, facilities or other property; or suspension, curtailment or other disruption of utilities (each, a
"Force Majeure Event"); provided that the affected Party provides the other Party prompt written notice of
the applicable circumstance and uses commercially reasonable efforts to re -commence performance as
promptly as possible; and provided further that if the affected Party's performance is delayed for a period of
more than sixty (60) days by reason of any Force Majeure Event, then the other Party may at its option, by
written notice to the affected Party, either: (a) terminate this Agreement; or (b) extend the current License
Term (or, as applicable, any transition period) for a number of days equal to the duration of the affected Party's
non-performance (at no additional cost to you if we are the affected Party), provided in each case described in
subsections (a) or (b) that such written notice is received either during or within thirty (30) days of an
occurrence of a Force Majeure Event that has not then continued, but eventually does continue for more than
sixty (60) days.
25. Additional Rights under Law
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for
incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to
you if such exclusions or liability limitations are imposed under appliable Law.
26. Local Laws and Export Control
The Service may provide services and use software and technology that is subject to United States ("US") export
controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office
of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland, the United
Kingdom ("UK") and the European Union ("EU"). You acknowledge and agree that the Service shall not be
used, and none of the underlying information, software, or technology may be transferred or otherwise exported
or re-exported to countries as to which the United States, Switzerland, the UK, the European Union or the country
where you or any of your Users are located, maintains an embargo (collectively, "Embargoed Countries"), or
to or by a national or resident thereof, or any person or entity on the US Department of Treasury's List of
Specially Designated Nationals or the US-. Department of Commerce's Table of Denial Orders (collectively,
"Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change
without notice. By using the Service, you represent and warrant that neither you nor any of your Users are a
Designated National or are in, under the control of, or a national or resident of, an Embargoed Country. You
further agree to comply strictly with all US-., Swiss, UK and EU export control Laws and assume sole
responsibility for obtaining licenses to export or re-export as may be required.
The Service may use encryption technology that is subject to licensing requirements including, but not limited
to, those under US law as set forth in the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774
and/or under EU law as set forth in Council Regulation (EC) No. 1334/2000, and/or as set forth in the export
regulations of the country where you or any of your Users are located, if other than in the US or the EU. You
agree that you will comply with any such licensing requirements and that the Service shall not be used, and none
of the underlying information, software, or technology may be transferred or otherwise exported or re-exported
absent compliance with such licensing requirements.
We and our licensors make no representation that the Service is appropriate or available for use in other locations.
If you use the Service from outside the United States of America, Switzerland and/or the, you are solely
v2021.11.01 Page 11 of 14
responsible for compliance with all applicable Laws, including without limitation export and import regulations
of other countries. Any diversion of the Content contrary to United States, Swiss, UK or European Union
(including European Union Member States) Law is strictly prohibited.
You may not use the Service or any Content, nor any information acquired by using the Service, for or in
connection with, nuclear activities, chemical or biological weapons, or missile projects, unless you have obtained
specific authorization in advance from the United States government for such purposes, and you acknowledge
that it is your responsibility to obtain any required permissions for such activities.
27. Notices
With the exception of notice for breach (which must be given in accordance with clause (c) below) we may
provide notice to you by (a) posting a general notice on the website through which the Service is accessed (which
shall only apply to notices of a general nature applicable to all subscribers to the Service), (b) electronic mail to
your e-mail address(es) on record in our account information records for you, or (c) by written communication
sent by first class mail or pre -paid post or regularly scheduled courier service (i.e., FedEx, DHL, UPS, etc.) to
your mailing address on record in our account information records for you. Such notice shall be deemed to have
been given, as applicable, upon posting on the website (for notices posted on the website in accordance with
clause (a) above), the passage of one (1) business day after sending (if sent by email in accordance with clause
(b) above), the passage of four (4) business days after mailing or posting (if sent by first class mail or pre -paid
post in accordance with clause (c) above) or upon delivery (if sent by regularly scheduled courier in accordance
with clause (c) above).
You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the
following: notice sent by email to Finance(a,ToolWatch.com, ; letter delivered by nationally recognized
overnight delivery service or first class postage prepaid mail to us at the following address: ToolWatch,
Corporation, 400 Inverness Pkwy, Suite 450, Englewood, CO 80112, Attention: Finance Department.
28. Assignment; Change of Control
This Agreement may not be assigned by you (either directly or indirectly because of a merger, sale of assets,
Change of Control, or other, similar transaction or by operation of law) without our prior written approval, which
shall not be unreasonably withheld. This Agreement may be assigned without your consent by us to (i) a parent
or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger, reorganization or other Change of Control.
Any purported assignment in violation of this section shall be void. If you undergo any actual or proposed
Change of Control by which a direct competitor of ours acquires Control of you, either directly or indirectly, this
Agreement shall terminate immediately upon the consummation of such transaction, without notice or other
action on our part, unless we have received prior notice of such Change of Control and have agreed in writing,
in our sole discretion, not to terminate this Agreement. You agree to submit any request for assignment of your
rights and obligations hereunder by delivering to us a fully signed copy of a Reauest to Assia_ n Riahts to MSA
which once signed by both Parties shall be attached to this Agreement as an addendum.
29. Amendments: Waivers
This Agreement may not be amended or modified except by written agreement signed by authorized
representatives of the Parties, and no course of conduct or dealing between the Parties shall be deemed to
modify or amend the express provisions of this Agreement. Our failure to enforce any right or provision in
this Agreement shall not constitute a waiver of such right or provision unless we acknowledge and agree to
such a waiver in writing.
v2021.11.01 Page 12 of 14
30. General Provisions
Official Lanp-ua2e. The official version of this Agreement shall be the version rendered in English, irrespective
of any translation hereof into any other language.
Governing Law, Jurisdiction and Venue. With respect to U.S. Customers, this Agreement shall be governed by
Colorado Law and controlling United States federal Law, without regard to the choice or conflicts of Law
provisions thereof or of any other jurisdiction, and any disputes, actions, claims or causes of action arising out
of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction and venue
of the state and federal courts located in Denver, Colorado. With respect to Non-U. S. Customers, this Agreement
shall be governed by the Laws of the State of Colorado and controlling United States federal Law, without regard
to the choice or conflicts of Law provisions thereof or of any other jurisdiction, and any disputes, actions, claims
or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the
exclusive jurisdiction of the United States federal courts located in New York City, New York, with the official
language in which any such proceeding shall be conducted to be English.
Other Documents. No text or information set forth on any other purchase order, preprinted form or document
(other than an Order Agreement, if applicable) shall add to or vary the terms and conditions of this Agreement.
Invalid or Unenforceable Provisions. If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then the Court shall use it reasonable efforts in accordance with
applicable Law to construe or modify any such provision(s) so that as nearly as possible, such provision(s)
reflect(s) the intentions of the Parties and make such construed or modified provision(s) effective and
enforceable , with all other provisions of the Agreement remaining in full force and effect to the fullest extent
possible.
Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between
you and us by entering into this Agreement or your use of the Service.
Entire Agreement; Integrated Writing. This Agreement, together with any applicable Order Agreement(s) or
any Addenda or other attachments intended by the Parties to be a part of this Agreement, comprise the entire
agreement between the Parties and supersede all prior or contemporaneous negotiations, discussions or
agreements, whether written or oral, between the Parties regarding the subject matter of this Agreement.
Rules of Construction. No rule of construction shall be applied against any Party that would construe a provision
of this Agreement against a Party by reason of that Party having written or drafted such provision. Each Party
has had the opportunity to have this Agreement reviewed by legal and other advisors, and each Party has availed
itself of that opportunity to the extent it desired to do so.
Headings. Headings contained in this Agreement are for ease of reference only and have no legal effect.
Survival of Certain Provisions on Termination. The provisions of this Agreement which, by their terms, should
survive termination of this Agreement to protect the rights and business interests of any Party shall survive the
termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon
termination of this Agreement.
No Third -Party Beneficiaries. Nothing in this Agreement is intended to, or shall, create any third -party
beneficiaries, whether intended or incidental, and no Party shall make any representations to the contrary.
Binding Effect, Authoritv to Execute Agreement. This Agreement, including these T & C's and the associated
Order Agreement(s) and any other applicable documents entered into between the Parties shall be binding on
you and us, each of our permitted successors and assigns, and each User. The agent of each Party who signs
v2021.11.01 Page 13 of 14
the Order Agreement that is a part of this Agreement represents and warrants that he or she has full authority to
sign this Agreement on behalf of the Party for which he or she is signing it.
Electronic Signatures and Exchange of Electronic Documents. Unless you instruct us otherwise, you agree
that all documents to be signed and exchanged between us may be signed and exchanged in electronic format
and that a signature may be any mark, symbol, sound or process that is written, stamped, engraved, attached to
or logically associated with an electronic document and executed by a person with the intent to sign, and that
all electronic signatures are the legal equivalent of a manual/handwritten signature and will be as valid as if
you actually signed the document in writing and delivered it to us in person.
END OF GENERAL TERMS AND CONDITIONS
In witness whereof, the parties have executed this Master Subscription Agreement as of the respective dates set
forth below to evidence their agreement to be bound by the terms hereof.
Subscriber:
zwla �r AG�cfo F
Signature: Dana Burghdoff (Dec t'202310:46 CST)
Name: Dana Burghdoff
Title: Assistant City Manager
Date: Dec 7, 2023
ToolWatch, LLC
Signature:
Name: Jay Martin
Title: ceo
Date: Nov 21, 2023
v2021.1 1.01 Page 14 of 14
Fo RT Wo RT nA
Routing and Transmittal Slip
DOCUMENT TITLE:
TO:
Rick Lisenbee - Approver
Vendor — Jay Martin, CEO, ToolWatch, LLC
jmartin@toolwatch.com
Nancy Honeysuckle - Signer
Shane Zondor - Approver
Jan Hale - Approver
Chris Harder - Signer
Taylor Paris- Signer
Dana Burghdoff- Signer
Ron Gonzales - Approver
Jannette Goodall - Signer
Allison Tidwell — Form Filler
Charmaine Baylor - Acceptor
Needs to be notarized:
Action Reauired:
❑ As Requested
❑ For Your Information
x Signature/Routing and/or Recording
❑ Comment
❑ File
Water
Department
ToolWatch, LLC
❑ YES x NO
FOR C'MO USE ONLY: Routing to CSO x YES 0 NO
la
KC
APPROVER
INITIALS:
EXPLANATION
Attached for your approval is the agreement between ToolWatch, LLC and the Water
Department for the Safety Reports software platform. This product is utilized by the Safety
Manager of the Water Department, and provides safety management software, as well as its
maintenance and support.
The "not to exceed" amount of the agreement is $4,214.00. The term of the agreement will
begin once it is signed by the Assistant City Manager, and there will be four renewals.
If you have any questions or concerns, please email me.
Thank you,
Charmaine Baylor
Charmaine.bavlora,fortworthtexas.2ov
Sr. IT Business Planner, Water IT
Water Department
Phone: (817) 392-6629
Addendum Page 2 of 11