Loading...
HomeMy WebLinkAboutContract 62150CSC No. 62150 ADDENDUM TO TERMS OF SERVICE BETWEEN THE CITY OF FORT WORTH AND BRYCER,LLC This Addendum to Terms of Service ("Addendum") is for software to help manage fire inspections and is entered into by and between Brycer, LLC ("Vendor") and the City of Fort Worth ("City"), individually referred to as a "party" and collectively as the "parties". The Contract documents shall include the following: 1. The Terms of Service (attached Brycer Letter, Exhibit A, and Exhibit B); and 2. This Addendum. Notwithstanding any language to the contrary in the attached Terms of Service ("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 December 1, 2024 ("Effective Date") and shall expire November 31, 2025 ("Expiration Date"), unless terminated earlier in accordance with the provisions of the Agreement. The Agreement may be renewed for up to three (3) one-year renewal terms by the written mutual agreement of the parties. 2. Compensation. City will not pay any fees for use of The Compliance Engine. City will not be liable for any additional expenses of Vendor not specified by this Agreement. 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 party 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 parry must cure the breach ten (10) calendar days after 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 this 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 OFFICIAL RECORD Addendum CITY SECRETARY Page 1 of 6 FT. WORTH, TX 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 only 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. Attomevs' 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 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. 6. 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, or (2) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: TO CITY: TO VENDOR: City of Fort Worth Brycer, LLC Attn: Assistant City Manager 4355 Weaver Parkway 100 Fort Worth Trail Suite 230 Fort Worth, TX 76102 Warrenville, IL 60555 With copy to Fort Worth City Attorney's Office at the same address Addendum Page 2 of 6 7. Sovereifzn 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. 8. Limitation of Liabilitv and Indemnitv. TO THE EXTENT THE AGREEMENT, IN ANY WAY, REQUIRES CITY TO INDEMNIFY OR HOLD VENDOR OR ANY THIRD PARTY HARMLESS FROM DIRECT DAMAGES, CITY OBJECTS TO THESE TERMS AND ANY SUCH TERMS ARE HEREBY DELETED FROM THE AGREEMENT AND SHALL HAVE NO FORCE OR EFFECT. 9. 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 AUTHORIZED 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, 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, AT CITY'S EXPENSE, 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 DOES NOT CONDUCT SUCH DEFENSE AND 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, 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 Addendum Page 3 of 6 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, 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 THIS 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 AND AMOUNTS SET FORTH IN THIS AGREEMENT. 10. 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. Addendum Page 4 of 6 11. No Mandatory Arbitration or Jury Waiver. To the extent the Agreement requires mandatory arbitration or a non jury trial 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. 12. 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. 13. Confidential Information. Vendor, for itself and its officers, agents, employees, and representatives, agrees that it shall treat all information and communication provided to it by the City as confidential and shall not disclose any such information or communication to a third parry without the prior written approval of the City. Vendor further agrees that it shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Vendor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 14. Public Information. City is a government entity under the laws of the State of Texas and all records 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. 15. 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. The terms of this Addendum shall survive the termination of the Agreement. 16. Immigration and 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. 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 this Agreement for violations of this provision by Vendor. Addendum Page 5 of 6 17. 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. City shall not bear any costs associated with any audits conducted by Vendor or its affiliates. 18. Counterparts. 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. 19. Assignment. Vendor will not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City; provided, however, that consent shall not be required in the event of the sale of all or substantially all of the Contractor's assets or equity interests. If City grants consent to an assignment or an assignment occurs in accordance with this section, the assignee will execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement. Vendor and Assignee will be jointly liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 20. Subcontract. If City grants consent to a subcontract, the subcontractor will execute a written agreement with Vendor referencing this Agreement under which subcontractor agrees to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor must provide City with a fully executed copy of any such subcontract. 21. Marketing. Vendor cannot include City's name, logo and/or trademarks in its lists of current and/or former customers and in promotional and marketing materials. 22. Force Majeure. City and Vendor will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the Party's performance, as soon as reasonably possible after the occurrence Addendum Page 6 of 6 of the Force Majeure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance the notice section of this Addendum. 23. Signature. The person signing this Addendum hereby warrants that he or she has the legal authority to execute this Addendum 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 Addendum. Should that person or entity not be authorized, the terms and conditions of this Addendum shall be binding as against the signature and he or she shall be subject to the terms and conditions of this Addendum. (signature page follows) (remainder of this page intentionally left blank) Addendum Page 7 of 6 ACCEPTED AND AGREED: CITY: City of Fort Worth nAA'a� 8ur�6cda By: Dana Burghdoff (Oct 8, 2024 i :56 CDT) Name: Burghdoff, Dana Title: Assistant City Manager Date: Oct 18, 2024 Approval Recommended: By: James Davis (Oct 17, 2024 15:03 CDT) Name: Jim Davis Title: Fire Chief Attest: By: (� Name: Jannette Goodall Title: City Secretary VENDOR: BRYCER,LLC 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: k&luwd Ft arris� Name: Richard Harrison Title: Fire Deputy Chief Approved as to Form and Legality: By: Name: Andrea Phillips F Title: Assistant City Attorney F9R. Q Pie �1P PVo g=P °� «d Contract Authorization: a°°°�a544 M&C: N/A Form 1295: N/A By: %'�'/ % L Name: Matt Rice Title: President Date: 10/17/24 2237531/5/13399.000 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX BRYCER,LLC 4355 Weaver Parkway Suite 230 Warrenville, IL 60555 September 3", 2024 Fort Worth Fire Department 505 W Felix St Fort Worth, TX 76115 Re: "The Compliance Engine" Dear Fort Worth Fire Department: We look forward to providing you with "The Compliance Engine" (the "Solution"). This proposal letter provides the basic terms by which Brycer, LLC ("Brycer") will provide you, Fort Worth Fire Department, with the Solution. The use of the Solution and all matters between Brycer and Client will be subject to the standard "Terms and Conditions" attached to this proposal as Exhibit A. The basic terms are as follows: 1. Term: Brycer will provide Client with the Solution for three years, commencing December Pt, 2024 (the "Initial Term"). Thereafter, the Term shall automatically renew for successive three-year periods unless terminated by Brycer or Client in writing at least 90 days prior to the expiration of the then current Term (each, a "Renewal Term" and together with the Initial Term, the "Term"). Following the expiration or termination of the Term (as provided in the Terms and Conditions), Client shall stop using the Solution; provided, however, Brycer shall make available, and Client shall have the right to download, Client's data from the Solution for a period of 60 days after the expiration or termination of the Term. Client shall have the right to terminate this agreement upon giving 90 days written notice to Brycer. 2. Fees: Client shall not pay any fees for use of the Solution. Brycer will collect all fees due and payable by third party inspectors in connection with activities relating to the Solution. 3. Brvicer Responsibilities: During the Term, Brycer shall be responsible for the following in connection with Client's use of the Solution: Availability. Brycer shall make the Solution available to Client as set forth on Exhibit B. The maintenance schedule and minimum service levels for the Solution are set forth on Exhibit B. Service Level. Brycer shall provide commercially reasonable levels of customer service with respect to the Solution to all third parties who transact business with Client and access the Solution. Backup. Brycer shall backup the database used in connection with the Solution to a separate server located within the same web hosting firm which the Solution is being hosted on a real time basis. Upon request by Client (which can be no more than once a month) or made prior to or within 60 days after the effective date of termination of the Term, Brycer will make available to Client a complete and secure (i.e. encrypted and appropriately authenticated) download file of Client data in XML format including all schema and attachments in their native format. Brycer shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and 237531/5/13399.000 integrity of Client data. Brycer shall not (a) modify Client data or (b) disclose Client data except as required by law. • Retention of Information. Brycer will maintain all information entered into the database by third party inspectors for at least five years from the time such information is entered into the database. • Notices. Brycer will be responsible for generating and delivering the following notices to third parties in connection with the Solution: (a) reminders of upcoming inspections that are due; (b) notices that an inspection is past due; and (c) notices of completed inspection reports which contain one or more deficiencies. • Call Center Phone calls by Brycer on behalf of the Client to the property for EACH life -safety system overdue for service based on dates automatically tracked within the TCE database. Brycer is not an agent of the Client and all scripts for the overdue calls will be approved by the Client. • Updates and Enhancements. In the event Brycer releases any updates, corrections, or enhancements to the Solution during the Term, Brycer shall promptly provide such updates or corrections to Client free of any charge or fee. 4. Client Responsibilities: During the Term, Client shall be responsible for the following in connection with Client's use of the Solution: • Operating System. Client shall be solely responsible for providing a proper operating environment, including computer hardware or other equipment and software, for any portion of the Solution installed on the Client's equipment (the "Client Access Software") and for the installation of network connections to the Internet. In addition to any other Client Access Software requirements, Client must use version Edge, Firefox version 76, Chrome 60 or Safari (or more recent versions), in addition to having a .pdf reader installed on machines to view attachments. • Training. Client shall allow Brycer at Client's facilities to train all applicable personnel of Client on the use of the Solution. • Information. Client shall promptly provide Brycer with all appropriate information necessary for Brycer to create the database for the Solution, including without limitation: (a) all commercial building addresses within [ Fort Worth Fire Department] for Brycer's initial upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion. • Enforcement. Client shall take all actions necessary to require (e.g. resolution, ordinance, fire policy, code amendment) the use of the Solution by third party inspection companies. • Reports. Client will require all compliant and deficient test results to be submitted. 5. Ownership of Data. Client owns all the data provided by Client and received from third party contractors for Client. Brycer shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Client's data. 2237531/5/13399.000 Exhibit A Terms and Conditions Any capitalized terms not defined in these Terms and Conditions shall have the meaning assigned to it in that certain Letter Agreement attached hereto by and between Brycer, LLC and Client (the "Agreement). Restrictions on Use. Client shall not copy, distribute, create derivative works of or modify the Solution in any way. Client agrees that: (a) it shall only permit its officers and employees (collectively, the "Authorized Users") to use the Solution for the benefit of Client; (b) it shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of the Solution; (c) it shall not sell, resell, rent or lease the Solution; (d) it shall not use the Solution to store or transmit infringing or otherwise unlawful or tortious material, or to store or transmit material in violation of third parry rights; (e) it shall not interfere with or disrupt the integrity or performance of the Solution or third -party data contained therein; (f) it shall not reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Solution (g) it shall not permit anyone other than the Authorized Users to view or use the Solution and any screen shots of the Solution and (h) it shall not disclose the features of the Solution to anyone other than the Authorized Users. Client is responsible for all actions taken by the Authorized Users in connection with the Solution. 2. Proprietary Rights. All right, title and interest in and to the Solution, the features of the Solution and images of the Solution as well any and all derivative works or modifications thereof (the "Derivative Works"), and any accompanying documentation, manuals or other materials used or supplied under this Agreement or with respect to the Solution or Derivative Works (the "Documentation"), and any reproductions works made thereof, remain with Brycer. Client shall not remove any product identification or notices of such proprietary rights from the Solution. Client acknowledges and agrees that, except for the limited use rights established hereunder, Client has no right, title or interest in the Solution, the Derivative Works or the Documentation. 3. Indenendent Contractor. Nothing in the Agreement may be construed or interpreted as constituting either party hereto as the agent, principal, employee or joint venturer of the other. Each of Client and Brycer is an independent contractor. Neither may assume, either directly or indirectly, any liability of or for the other party. Neither party has the authority to bind or obligate the other party and neither parry may represent that it has such authority. 4. Reservation of Rights. Brycer reserves the right, in its sole discretion and with prior notice to Client, to discontinue, add, adapt, or otherwise modify any design or specification of the Solution and/or Brycer's policies, procedures, and requirements specified or related hereto. All rights not expressly granted to Client are reserved to Brycer, including the right to provide all or any part of the Solution to other parries. 5. Use of Logos. During the term of this Agreement, Brycer shall have the right to use Client's logos for the purpose of providing the Solution to Client. 6. Confidential Information. Brycer and Client acknowledge and agree that in providing the Solution, Brycer and Client, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information ("Confidential Information"). Confidential Information may include, but is not limited to, the Solution, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. Notwithstanding the foregoing, the parties acknowledge that Client and Brycer shall be permitted to comply with any all federal and state laws concerning disclosure provided that any such required disclosure will not include any of Brycer's screen shots. The disclosing party shall provide prior written notice of any required disclosure of the nondisclosing parry's Confidential Information to the nondisclosing party and shall disclose only the information that is required to be disclosed by law. hi the event that Client requests from Brycer any reports or other information for purposes of complying with federal and state disclosure laws, Brycer shall provide such information within five business day following such request. Confidential Information excludes information: (a) that is or becomes generally available to the public through no fault of the receiving party; (b) that is rightfully received by the receiving party from a third party without limitation as to its use; or (c) that is independently developed by receiving party without use of any Confidential Information. At the termination of this Agreement, each party will return the other party all Confidential Information of the other party. Each party also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any Confidential Information of the other party or any firmware, circuit board or software provided therewith. 7. BrycerWarranty Brycer represents and warrants to Client that Brycer has all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Solution, and that Brycer is duly authorized to enter into this Agreement and provide the Solution to Client pursuant to this Agreement. Disclaimer. All information entered into Brycer's database is produced by third party inspectors and their agents. THEREFORE, BRYCER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ENTERED INTO BRYCER'S DATABASE BY EITHER CLIENT OR THIRD -PARTY INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7. BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY OTHER INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRYCER'S SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 7. AND CLIENT'S SOLE REMEDY, SHALL BE THAT BRYCER SHALL INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY. LIMITATION ON DAMAGES. BRYCER SHALL ONLY BE LIABLE TO CLIENT FOR DIRECT DAMAGES PURSUANT TO THE AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7. IN NO EVENT SHALL BRYCER BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR SYSTEM DOWNTIME. CLIENT ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL BRYCER'S LIABILITY FOR ANY LOSS OF DATA OR DATA INTEGRITY EXCEED THE REPLACEMENT COST OF THE MEDIA ON WHICH THE DATA WAS STORED. 10. Risks Inherent to Internet. Client acknowledges that: (a) the Internet is a worldwide network of computers, (b) communication on the Internet may not be secure, (c) the Internet is beyond the control of Brycer, and (d) Brycer does not own, operate or manage the Internet. Client also acknowledges that there are inherent risks associated with using the Solution, including but not limited to the risk of breach of security, the risk of exposure to computer viruses and the risk of interception, distortion, or loss of communications. Client assumes these risks knowingly and voluntarily releases Brycer from all liability from all 2237531/5/13399.000 m such risks. Not in limitation of the foregoing, Client hereby assumes the risk, and Brycer shall have no responsibility or liability of any kind hereunder, for: (1) errors in the Solution resulting from misuse, negligence, revision, modification, or improper use of all or any part of the Solution by any entity other than Brycer or its authorized representatives; (2) any version of the Solution other than the then - current unmodified version provided to Client; (3) Client's failure to timely or correctly install any updates to the Client Access Software; (4) problems caused by connecting or failure to connect to the Internet; (5) failure to provide and maintain the technical and connectivity configurations for the use and operation of the Solution that meet Brycer's recommended requirements; (6) nonconformities resulting from or problems to or caused by non-Brycer products or services; or (7) data or data input, output, accuracy, and suitability, which shall be deemed under Client's exclusive control. Indemni . Brycer (the "hidemnifying Party") will defend and indemnify Client against any damages, losses, liabilities, causes of action, costs or expenses arising from Brycer's breach of this Agreement, gross negligence or intentional misconduct. Client will defend and indemnify Brycer against any damages, losses, liabilities, costs or expenses (including reasonable attorneys' fees) arising from Client's breach of this Agreement, gross negligence or intentional misconduct. Client acknowledges that Brycer does not create any of the data and information included in the Solution and is not responsible for and does not assess or make any suggestions or recommendations with respect to any such data or information. Client will defend and indemnify Brycer against any damages, losses, liabilities, costs or expenses (including reasonable attorneys' fees), claims, demands, suits or proceedings made or brought against Brycer by a third party in connection with Client's or an Authorized User's use of the Solution, or any action or inaction taken by a third party, including, but not limited to, third party inspectors, in connection with such third parry providing services for Client or otherwise at Client's or an Authorized User's request or direction. 12. Breach. Brycer shall have the right to terminate or suspend this Agreement, and all of Client's rights hereunder, immediately upon delivering written notice to Client detailing Client's breach of any provision of this Agreement. If Client cures such breach within 5 days of receiving written notice thereof, Brycer shall restore the Solution and Client shall pay any fees or costs incurred by Brycer in connection with the restoration of the Solution. 13. Illegal Pavments. Client acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or anything of value from any employee or agent of Brycer in connection with the Agreement. 14. Beneficiaries. There are no third -party beneficiaries to the Agreement. 15. Force Maieure. Neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, blackouts, accidents, or strikes. In the event of any such delay, any applicable period of time for action by said party may be deferred for a period of time equal to the time of such delay, except that a party's failure to make any payment when due hereunder shall not be so excused. 16. Notices. All notices required in the Agreement shall be effective: (a) if given personally, upon receipt; (b) if given by facsimile or electronic mail, when such notice is transmitted and confirmation of receipt obtained; (c) if mailed by certified mail, postage prepaid, to the last known address of each parry, three business days after mailing; or (d) if delivered to a nationally recognized overnight courier service, one business day after delivery. 17. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE LAWS OF THE STATE IN WHICH CLIENT EXISTS APPLICABLE TO CONTRACTS MADE IN SUCH STATE AND THAT ARE TO BE WHOLLY PERFORMED IN SUCH STATE WITHOUT REFERENCE TO THE CHOICE -OF -LAW PRINCIPLES OF SUCH STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THE AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED WITHIN THE STATE IN WHICH CLIENT EXISTS. THE PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID STATE. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 18. Attomevs' Fees. The prevailing party in any proceeding in connection with the Agreement shall be entitled to recover from the non -prevailing parry all costs and expenses, including without limitation, reasonable attorneys' and paralegals' fees and costs incurred by such parry in connection with any such proceeding. 19. Entire Agreement. The Agreement sets out the entire agreement between the parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. 20. Amendment. The Agreement may not be altered or modified, except by written amendment which expressly refers to the Agreement and which is duly executed by authorized representatives of both parties. The waiver or failure by either parry to exercise or enforce any right provided for in the Agreement shall not be deemed a waiver of any further right under the Agreement. Any provision of the Agreement held to be invalid under applicable law shall not render the Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law. The Agreement may be executed by facsimile and in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 21. Expiration. The rights and obligations contained in these Terms and Conditions shall survive any expiration or termination of the Agreement. 2237531/5/13399.000 Exhibit B Maintenance Schedule and Minimum Service Levels 1. Uptime and Maintenance. The Solution shall be available 24 hours per day during the term of this Agreement. The Solution shall be fully functional, timely and accessible by Client at least 99.5% of the time or better and Brycer shall use reasonable efforts to provide Client with advance notice of any unscheduled downtime. 2. Response Time. Brycer shall respond to telephone calls from Client within two hours of the call and/or message and all emails from Client within two hours of the receipt of the email. 3. Customer Support Customer support hours are 24/7/365. The number is 630-413-9511 Brycer will assign client a dedicated customer representative with direct access to their email and work number. 2237531/5/13399.000