HomeMy WebLinkAboutContract 61016DocuSign Envelope ID: 2329E1 FD-2C84-4F08-9E74-5AE932337F7E
CSC No. 61016
ADDENDUM TO ENTERPRISE SUBSCRIPTION AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
IMPAIRMENT SCIENCE, INC.
This Addendum to Enterprise Subscription Agreement ("Addendum") is entered into by
and between Impairment Science, Inc. ("Vendor") and the City of Fort Worth ("City"),
collectively the "parties", for a purchase of software licenses.
The Contract documents shall include the following:
1. The Enterprise Subscription Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Enterprise Subscription
Agreement ([collectively referred to herein as] the "Agreement"), the Parties hereby 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 become effective upon the signing of the Agreement
by the Assistant City Manager ("Effective Date") and shall expire [August 31, 2024] ("Expiration
Date"), unless terminated earlier in accordance with the provisions of the Agreement. The
Agreement may be renewed for four (4) one-year renewals at City's sole option/by written mutual
agreement of the parties, each a "Renewal Term."
2. Termination.
a. 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.
b. 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
Addendum Impairment Science, Inc.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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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.
3. 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.
4. 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 law 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.
5. Notices to Parties. Notices required pursuant to the provisions of this Agreement
shall be conclusively determined to have been delivered when (1) hand -delivered to the other party,
its agents, employees, servants or representatives, (2) delivered by facsimile with electronic
confirmation of the transmission, or (3) received by the other party by United States Mail,
registered, return receipt requested, addressed as follows:
TO CITY:
City of Fort Worth
Attn: Purchasing Manager
200 Texas Street
Fort Worth, TX 76102-6314
Facsimile: (817) 392-8654
With copy to Fort Worth City Attorney's
Office at same address
6.
TO VENDOR:
Impairment Science, Inc.
Chris Bensley/ Chief Operating Officer
1035 Cambridge Street
Cambridge, MA 02141
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.
Addendum Impairment Science, Inc.
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8. Sovereign Immunity. 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 Liabilitv and Indemnitv. 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 THIS AGREEMENT, IT BEING UNDERSTOOD THAT THIS
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 THIS 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 THIS 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,
Addendum Impairment Science, Inc.
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VENDOR SHALL, AT ITS O EXPENSE AND AS CITY'S SOLE REMEDY, EITHER:
(A) PROCURE FOR CITY THE RIGHT TO ONTINUE TO SE THE
DELIVERABLE(S); OR (B) MO IFY THE DELIVERABLE(S) TO MAKE THEM/IT
NON -INFRINGING, PROVIDED THAT SUCH MODIFICATION DOES NOT
MATERIALLY ADVERSELY AFFECT CITY'S AUTHORIZED USE OF THE
DELIVERABLE(S); OR (C) REPLACE THE DELIVERABLE(S) WITH EQUALLY
SUITABLE, CO ATIBLE, AND FUNCTIONALLY EQUIVALENT NON -
INFRINGING DELIVERABLE(S) AT NO ADDITIONAL CHARGE TO CITY; OR (D) IF
NONE OF THE FOREGO NG ALTERNATIVES IS REASONABLY AVAILABLE TO
VENDOR, TERMINATE THIS AGREEMENT, AND REFUND ALL AMO NTS 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 AND AMO NTS SET FORTH IN SECTION 10 OF THIS AGREEMENT.
11. 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.
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.
12. 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.
13. 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.
14. Immi2ration Nationalitv Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under this 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 this 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. VENDO HALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FRO 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 this Agreement for violations of this
provision by Vendor.
Addendum Impairment Science, Inc.
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15. 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.
16. 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
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
17. Countemarts. This Addendum may be executed in multiple counterparts, each of
which shall be an original and all of which shall constitute one and the same instrument. A
facsimile copy or computer image, such as a PDF or tiff image, or a signature, shall be treated as
and shall have the same effect as an original.
18. Signature. The person signing this Agreement hereby warrants that he or she has
the legal authority to execute this Agreement on behalf of his or her respective party, and that such
binding authority has been granted by proper order, resolution, ordinance or other authorization of
the person or entity. The other Party is fully entitled to rely on this warranty and representation in
entering into this Agreement. Should that person or entity not be authorized, the terms and
conditions of this Agreement shall be binding as against the signatore and he or she shall be subject
to the terms and conditions of this Agreement.
19. Prohibition on Bovcottin2 Enerizv 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.
Addendum Impairment Science, Inc.
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20. 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.
21. 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 Coveraee in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury.
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.
Addendum Impairment Science, Inc.
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1.1.3.3. Coverage shall include, but not be limited to, the following:
1.1.3.3.1.
1.1.3.3.2.
1.1.3.3.3.
virus;
1.1.3.3.4.
adjudication language;
Failure to prevent unauthorized access;
Unauthorized disclosure of information;
Implantation of malicious code or computer
Fraud, Dishonest or Intentional Acts with final
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
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
Addendum Impairment Science, Inc.
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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)
(signature page follows)
(remainder of this page intentionally left blank)
Addendum Impairment Science, Inc.
Page 8 of 9
DocuSign Envelope ID: 2329E1 FD-2C84-4F08-9E74-5AE932337F7E
ACCEPTED AND AGREED:
CITY:
City of Fort Worth
aA0--2/qMdd
e
By: Dana BurQhdoff (Feb , 2024 1.03 CST)
Name: Dana Burghdoff
Title: Assistant City Manager
Date: Feb 26, 2024
Approval Recommended:
By 34Davis 26. 202410:02 CST)
Name: James Davis
Title: Fire Chief
Attest:
By k
Name: Jannette Goodall
Title: City Secretary
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Impairment Science, Inc.
Dc5gned by:
B F�101u'bv 9' SY:
Name: R.Schiller
Title: Chief Executive Officer
Date: 2/20/2024
Addendum Impairment Science, Inc.
KC
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.
ByFeb 23. 202412:00 CST)
Name: Brenda Ray
Title: Fire Purchasing Manager
Approved as to Form and Legality:
By:
Name: Andrea Phillips
Title: Assistant City Attorney
Contract Authorization:
M&C: N/A
Form 1295:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 9 of 9
Impairment Science, Inc.
ENTERPRISE SUBSCRIPTION AGREEMENT
Order Form
Subscriber: Fort Worth Fire Department Contact: Brian M. Newman
E-Mail: brian.newman@fortworthtexas.gov
Provider: Impairment Science, Inc.
E-Mail: chris@impairmentscience.com
Software Services Support: Provider will provide
Software Support during the Subscription Term as
follows:
Number of Licensed Users: 50
Phone: 360-393-5702
Contact: Chris Bensley
Phone: 617-612-5800
Availability: 9:00am-6:00pm ET, weekdays
excluding holidays.
Method to Obtain Support: Telephone: 617-612-5800
Email: chris@impairmentscience.com
License Fee: $50.00 per user per year
Subscription Term: 1 year, beginning on the Subscription Fee and Payment: 52.500.00 for the
Effective Date, which may be extended by mutual Subscription Term (not including Additional Licensed
written agreement of the Parties ("Subscription Users, if any), payment of which is due within 30 days of
Term"). the date of Provider's invoice ("Subscription Fee").
Additional Requirements: Licensee users will Use of score results and user data for Case Study: ISI
remain anonymous to ISI (blind identity with alias may publish the results in a case study only with de -
user name). identified data.
THIS ENTERPRISE SUBSCRIPTION AGREEMENT ("Agreement") is entered into as of August 25, 2023 ("Effective
Date") between Impairment Science, Inc., a Delaware corporation, with its principal office at 1035 Cambridge St.,
Suite #1, Cambridge, Massachusetts 02141 ("Provider"), and the Fort Worth Fire Department, located at 509 West
Felix Street, Fort Worth, TX 76115 ("Subscriber"). Collectively the "Parties" or individually a "Party."
This Agreement includes the Order Form, above, and the following Terms and Conditions.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement effective as of the date first above
written.
PROVIDER: Impairment Science, Inc.
By: 16464- )C/6&Z
Name: Robert Schiller
SUBSCRIBER: Fort Worth Fire Department
By:
J `, Da- (F, �6, 2024 10,02 CST)
Name: James Davis
Title: Chief Executive Officer Title: Fire Chief
Terms and Conditions
The Parties agree to the following terms and conditions for Subscriber's use of the Services
1. Definitions.
1.1 "Content" means any materials under Provider's control related to the Services, (i) including but not limited
to computer software, text, graphics, images, video, audio, data, designs, logos, downloadable material or
software, and other material that is a part of or is used to support the Services, and (ii) information or data
developed or provided by the Subscriber and by authorized individual users when using the Services.
1.2 "Services" means the products Druid, Druidapp, or Druid Enterprise (known by these names or by any other
names) and any related services described in the Order Form or attachment to this Agreement. The Services
also include Subscriber's access and use of Content, Related Materials.
1.3 "Related Materials" means all materials not defined as Services or Content that are furnished by Provider
in conjunction with the Services, and shall include, without limitation, input information, format
specifications, and instructional and other documentation, including all guides and manuals.
Access and Use of the Services. In consideration of payment of the Subscription Fee set forth in the Order Form,
Provider hereby grants to Subscriber a limited, non-exclusive, non -transferable, revocable right to access and
use the Services for the Subscription Term. Subscriber agrees that Provider may access the de -identified test
scores, and other such data of its users, for Provider's own research and development purposes only.
3. Usage and Restrictions
3.1 Usage. The Services, Content, and Related Materials are only for Subscriber's internal use only by its
employees and consultants.
3.2 Restrictions. Subscriber shall not decompile, reverse engineer, disassemble, translate, copy or otherwise
duplicate any of the Content or Services or otherwise attempt to derive or gain access to the source code
of the Services, in whole or in part. Subscriber shall not modify, enhance or otherwise create derivative
works of or improvements to the Content Services. Subscriber shall not remove, delete, efface, alter,
obscure, translate, combine, supplement, or otherwise change any trademarks associated with the
Services, Content, or Related Materials, or other symbols, notices, marks, or identifying numbers on or
relating to any copy of the Content, Services or Related Materials. Subscriber shall not sell, rent, lease,
assign, or grant any right to any third party to the Content or Services in whole or in part.
3.3 External Sites. Links to Third -party websites ("External Sites") may be included in the Services and such
internet links are provided by Provider solely as a convenience to Subscriber, and such provision is not
endorsement or any sort of warranty by Provider of the content, data, or processes available through such
External Sites, for which Provider cannot and does not accept any responsibility or liability.
4. Termination
4.1 Termination. A Party may terminate this Agreement by providing written notice to the other Party for any
reason or upon such Party's material breach of this Agreement, subject to such Party's right to cure within
thirty (30) days after receipt of written notice of such breach.
4.2 Effect of Termination. Upon any termination of this Agreement for any reason, Subscriber's rights to access
and use the Services shall immediately terminate and upon the Disclosing Party's written request, the
Receiving Party shall immediately return all Confidential Information of the Disclosing Party to the
-2-
Disclosing Party. The following provisions shall survive expiration or termination of the Agreement:
Subscriber's payment obligation under the Order Form, Sections 4.2, 5, and 7-17 inclusive.
Confidentiality Obligations
5.1 "Confidential Information" means any and all technical, business, or proprietary information disclosed by
one party (the "Disclosing Party") to the other party (the "Receiving Party"), orally or in writing, including,
but not limited to, information regarding the Disclosing Party's business strategies and practices,
methodologies, trade secrets, know-how, product information, technologies, software, and customers.
Without limiting the foregoing, Provider's proprietary software, its Subscribers and users of its products,
and the pricing and terms of this Agreement are Confidential Information of Provider. Confidential
Information shall not include information that the Receiving Party can demonstrate: (a) is generally
available to the public through no improper action or inaction by the Receiving Party; (b) was known by the
Receiving Party or in the Receiving Party's possession prior to receipt of the Disclosing Party's Confidential
Information as shown by the Receiving Party's business records kept in the ordinary course; (c) is disclosed
with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving
Party without use of the Disclosing Party's Confidential Information and provided that the Receiving Party
can demonstrate such independent development by documented evidence prepared contemporaneously
with such independent development; or (e) becomes known to the Receiving Party from a source other
than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in
violation of the Disclosing Party's rights. The obligations set forth in this Section 5 shall not apply to the
extent that disclosure of Confidential Information is required by law, regulation, ordinance or judicial
process.
5.2 Each Party shall: (a) treat as confidential all Confidential Information of the other party and not disclose
such Confidential Information to any third party except as permitted by this Agreement and then only
subject to confidentiality obligations at least as protective as those set forth herein; (b) use Confidential
Information of the other party only as expressly set forth herein or otherwise authorized in writing; and (c)
shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or
removal of the other party's Confidential Information.
5.3 The obligations set forth in this Section shall survive the expiration or earlier termination of this Agreement
for a period of three (3) years after such expiration or termination, provided that trade secrets shall remain
subject to the obligations of this Section 5 until such information no longer qualifies as a trade secret under
applicable law
User's Privacy Data privacy is of the upmost concern to Provider. Without limiting Provider's or Subscriber's
obligations of confidentiality, as further described in the Agreement and herein, Provider shall use commercially
reasonable efforts to protect Subscriber's confidential data ("Subscriber Data") with measures that are designed
to: (i) maintain the security and confidentiality of Subscriber Data; (ii) protect against unauthorized access to or
use of the Subscriber Data; and (iii) require that all subcontractors of Provider, if any, comply with all of the
foregoing.
Intellectual Property and Trademarks As between Provider and Subscriber, the Services, Content, and Related
Materials and any updates, upgrades, new releases, new versions and derivatives thereof are protected under
United States and International patent, copyright, trademark, trade secret and/or other intellectual property or
proprietary rights laws ("Intellectual Property Rights") and are and shall remain the sole and exclusive property
of Provider. The compilation, collection, arrangement, or assembly of all Services, Content and Related Materials
are the exclusive property of Provider and are protected intellectual property of Provider. All trademarks and
logos which appear on or in connection with the Services and Content, are, unless stated otherwise, trademarks
of Provider. No right, license, or interest to such trademarks are generated or granted hereunder other than
the limited right to use, and Subscriber agrees that no such right, license, or interest, will be asserted by
Subscriber with respect to such trademarks. Subscriber will not remove or destroy any copyright, trademark,
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logos or other proprietary marking or legends placed on or contained in the Services, Content, and/or Related
Materials.
8. Warranties and Disclaimer
8.1 Mutual. Each Party represents and warrants that: (i); it is duly organized, validly existing, and in good
standing as a corporation or other entity under the laws of its jurisdiction of incorporation or organization;
(ii) it has the full right, power, and authority to enter into this Agreement and to perform its obligations
hereunder and, when executed, this Agreement shall constitute the legal, valid, and binding obligation of
such Party.
8.2 Provider. Provider represents and warrants that it shall perform its duties and obligations under this
Agreement in a professional and workmanlike manner in accordance with industry standards.
8.3 Representations and Warrantees SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS USE OF THE SERVICES,
CONTENT, AND RELATED MATERIALS PERTAINING TO THIS AGREEMENT. PROVIDER DOES NOT MAKE ANY
OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER SUCH WARRANTY BE EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON -INFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE, AND SERVICES, CONTENT, AND RELATED MATERIALS ARE PROVIDED "AS IS" WITH
ALL FAULTS, AND LICENSOR DOES NOT WARRANT THAT THE SERVICES WILL OPERATE WITHOUT ERROR.
WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO REPRESENTATION OR WARRANTY ABOUT THE
RESULTS, INCLUDING BUT NOT LIMITED TO THEIR CORRECTNESS, ACCURACY, RELIABILITY, AND/OR
CURRENTNESS OF THE SERVICES, CONTENT, OR RELATED MATERIALS; AND MAKES NO REPRESENTATION OR
WARRANTY THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE. PROVIDER
DOES NOT PROVIDE MEDICAL SERVICES OR ADVICE AND ANY USE OF THE SERVICES DOES NOT CREATE A
DOCTOR -PATIENT RELATIONSHIP.
8.4. Informational Purposes PROVIDER PROVIDES THE SERVICES FOR INFORMATIONAL PURPOSES ONLY. THE
INFORMATION MADE AVAILABLE ON, BY, OR THROUGH THE SERVICES MAY INFORM, BUT SHOULD NOT BE
RELIED UPON, WHEN MAKING ANY DECISION REGARDING AN EMPLOYEE'S OR CONSULTANT'S ABILITY TO
PERFORM ANY ACTIVITY, INCLUDING BUT NOT LIMITED TO FITNESS TO WORK, OPERATE MACHINERY, DRIVE A
VEHICLE, MAKE DECISIONS, OR THE LIKE, OR AFFECTING THE TERMS OR CONDITIONS OF SUCH EMPLOYEE'S OR
CONSULTANT'S EMPLOYMENT STATUS.
Limitation of Liability EXCEPT FOR DAMAGES ARISING OUT OF OR RELATING TO A PARTY'S: (1) GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, (11) INDEMNIFICATION OBLIGATIONS, OR (111) BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, IF ANY, IN NO EVENT WILL EITHER PARTY'S LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER UNDER
THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM MADE BY A PARTY
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL HAVE ANY LIABILITYTO THE OTHER
PARTY FOR ANY LOST PROFITS OR REVENUES OR LOSS OF DATA OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT,
HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND
WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Indemnification Provider agrees to defend, indemnify, and hold harmless Subscriber and its Indemnities from
and against any third -party claims, actions, or demands, including without limitation reasonable legal and
accounting fees, alleging or resulting from: (i) a claim the Services, at the time provided by Provider, infringes
upon or violates a U.S. patent, copyright or trade secret of a third party; and (ii) Provider's breach of this
Agreement. Subscriber agrees to defend, indemnify, and hold harmless Provider, its affiliates, licensors, and
service providers, and their respective officers, directors, employees, contractors, subcontractors, suppliers,
agents, advisors, and successors, and assigns (collectively, "Indemnities"), from and against any third party
claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or
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resulting from (i) Subscriber's use or misuse of the Service, Content and/or Related Materials; and (ii)
Subscriber's breach of this Agreement. Each Party agrees to give the other Party prompt notice of such claims
and to permit the Indemnifying Party to control the defense or settlement thereof; provided, however, that the
Indemnified Party reserves the right to participate in the defense of any such claim through its own counsel and
at its own expense and further provided that any settlement does not require a payment or admission of liability
by the Indemnified Party.
11. Force Majeure Neither Party to this Agreement shall be liable for failure to perform its obligations under this
Agreement due to events beyond such Party's reasonable control, including, but not limited to, strikes, riots,
wars, fire, acts of God, power blackouts affecting facilities, unusually severe weather conditions, computer
viruses, computer hackers, the inability to secure products or services of other agencies and/or persons, the
acts or omissions of internet providers, or reasonable acts in compliance with any newly applicable law,
regulation, or order of any governmental body.
12. Governing Law This Agreement shall be governed by and construed and enforced in accordance with the
internal substantive laws (and not the laws of conflicts) of the Commonwealth of Massachusetts. Jurisdiction
for any claims arising under this Agreement shall lie exclusively with the state or federal courts within Boston,
Massachusetts.
13. Relationship of the Parties It is the express intention of the Parties to this Agreement that Licensor (including
any of Licensor's officers, directors, employees, contractors, subcontractors, suppliers, agents, advisors, and
successors) is an independent contractor and not an employee, agent, joint venturer, or partner of Licensee.
14. Notices All notices, requests, or consents required or permitted under this Agreement shall be in writing and
shall be given to the other Party by personal delivery, overnight air courier (with receipt signature), electronic
mail (with confirmation of read receipt), or facsimile transmission, sent to such Party's address or fax number
as is set forth on the Order Form. Each such notice, request, or consent shall be deemed effective upon receipt
or at a later date stated in the notice.
15. Attorneys' Fees In the event that any Party seeks to enforce its rights under this Agreement, the prevailing
Party shall be entitled to recover reasonable fees (including attorneys' fees), costs, and other expenses incurred
in connection therewith.
16. Entire Agreement; Amendment, Waiver and Severability This Agreement and the Order Form and any
attachments constitutes the entire agreement between the Parties relating to the subject matter hereof and
supersedes all previous written or oral negotiations, representations, agreements, and understandings between
the Parties with regard to such subject matter. This Agreement may be amended, modified, superseded,
cancelled, renewed, extended, or waived only by a written instrument executed by the Parties to this
Agreement, or, in the case of a waiver, by the Party waiving compliance. No waiver by any Party of the breach
of any term or provision contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach in the
future, or a waiver of the breach of any other term or covenant contained in this Agreement. Any provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Assignment This Agreement may not be assigned or transferred, in whole or in part, by Subscriber without the
prior written consent of Provider, except to an acquirer of an ownership interest in 50% or more of Subscriber.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal
representatives, successors and permitted assigns.
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