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HomeMy WebLinkAboutCONTRACT WITH EMERGENCY COMMUNICATIONS NETWORK, LLC TO PROVIDE CODE RED NEXT SERVICES_ CODE RED WEATHER WARNING AND IPAWS SUBMISSION APP CODERED®NEXT SERVICES AGREEMENT Includes CodeRED Weather Warning®and IPAWS Submission App This CodeRED® NEXT Services Agreement ("Agreement") is made and effective as of the date executed by Licensee (the"Effective Date") by and between Emergency Communications Network, LLC, a Delaware Limited Liability Company ("Licensor") located at 780 W. Granada Boulevard, Ormond Beach, FL 32174 and the Augusta, Georgia, a political subdivision of the State of Georgia, by and through its Board of Commissioners ("Licensee")located at 535 Telfair Street,Augusta, GA 30901. Licensor is the owner of a service identified as "CodeRED® Emergency Notification System" (the "Service"), which is designed to allow authorized licensed users to have access 24 hours a day, 7 days a week for the purpose of generating high-speed notifications to targeted groups via an Internet-based software application. Licensee desires to utilize the Service for the purpose of communicating matters of public interest and concern. The parties agree as follows: 1.. License: Licensor grants Licensee a non-exclusive and non-transferable license (the "License") to allow departments under the sole control of Licensee to use the Service, in accordance with the terms of this Agreement, provided however, in no instance shall the Service be used by any school, school system, departments of education, university department(s), or by any departments which are not directly governed by Licensee without the prior written consent of Licensor. Licensor offers alternate licensing solutions specifically designed for education separate from the Service. Licensor reserves the right to terminate this Agreement if other parties not contemplated in this Agreement are granted access to the Service by Licensee. Licensee assumes full and complete responsibility for the use of the Service by anyone whom Licensee permits to use the Service or who otherwise uses the Service through Licensee's pass codes. Licensee may not assign, license, sublicense, rent, sell or transfer the License, the Service, those codes used to access the Service, or any rights under this Agreement. To access the Service, Licensor will provide Licensee with unlimited unique user name(s)and pass code(s). 2. Ownership: Licensee agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Service or any software provided. Licensee's License confers no title or ownership in the Service or its underlying technology. 3. Copyright: Licensee understands and agrees that United States copyright laws and international treaty provisions protect the Service. Except for the limited License provided for herein, Licensor reserves all rights in and to the Service and all underlying data, compilations, and information maintained by Licensor relating to the Service, including but not limited to, the source or object code. Licensee shall not make any ownership, copyright or other intellectual property claims related to the Service or data processed through the Service. 4. Functionality: The Service provides Licensee the ability to generate high-speed notifications to geographically selected calling areas and/or listed databases, as provided by Licensee, via an Internet-based software application. The Service has the ability to select calling databases via a geographic mapping Licensee's database(s) shall be limited to the geographic boundaries (determined by Lat/Lon coordinates)component.ot Richmond County, Georgia(the "Calling Area"). The Service utilizes an interactive voice response telephone service to record messages and initiate call out projects. Licensee may only place notifications via the Service to telephone numbers assigned within the 48 contiguous United States of America. International notification rates may be set by separate agreement.Any additional Service functions will be charged at the rates on Exhibit A. 5. Costs for the Service: During the Term (as hereinafter defined)of this Agreement, Licensee agrees to pay all costs and fees for utilizing the Service at the fixed rates described in Exhibit A, and as set forth in this paragraph, including but not limited to any applicable taxes. Licensee understands and agrees that the pricing set forth on Exhibit A is predicated on a population within the Calling Area not to exceed 999.999. Licensee further understands and agrees that a deviation above 10% of such population, as is listed in this Agreement, shall result in increased pricing at Licensor's then-current rates. Payment for the Service is due and payable within thirty (30) days from Licensee's receipt of invoice ("ROI"). Late fees at a rate of 1% per month (12% per annum) will be charged on all balances outstanding beyond 60 days. The terms of this Agreement supersede any and all provisions of the Georgia Prompt Pay Act. All payments due under this agreement shall be paid to: Emergency Communications Network, LLC at 780 W. Granada Boulevard, Ormond Beach, FL 32174. Emergency Communications Network,LLC Page 1 of 11 CodeRED®NEXT Services Agreement Initials License Licen 6. Term: This Agreement, and the License extended herein shall commence on the Effective Date and shall have an initial term of one (1) year(the "Initial Term") unless terminated as set forth in Section 16 of this Agreement. Upon expiration or termination as provided in Section 16 of the Agreement, Licensee's access to the Service will be terminated. 7. Contract Extension: This Agreement shall automatically extend for four(4) separate one year (1) year terms (each a "Renewal Term")(the Initial Term and all Renewal Terms, collectively, the "Term") unless either party provides notice of termination at least thirty (30) days prior to the commencement of any Renewal Term. This Agreement shall: (i) terminate absolutely and without further obligation on the part of Augusta each and every December 31, at 11:59 p.m. as required by O.C.GA. Section 36-60-13, as amended, unless sooner terminated in accordance with the termination provisions of this Agreement; (ii) automatically renew on each January 1, at 12:00 a.m., unless terminated in accordance with the termination provisions of this Agreement; and (iii) terminate absolutely, without further renewals, five (5) years from the Effective Date. In the event the Agreement is extended: a) Licensor will update its systems to extend the License and associated pass codes for one (1) additional year of use; and b) Licensor will invoice Licensee for one(1)additional year of service at the rate of thirty-three thousand one hundred and fifty five dollars($33,155)per year, and c) Licensee agrees to pay the fees set forth in this paragraph for each Renewal Term upon ROI from Licensor, subject to the same terms as set forth in paragraph 5. Licensee understands and agrees that its failure to extend the Agreement pursuant to this section may result in increased costs for the Service in the event that Licensee requests Licensor to provide any services to Licensee after the expiration of the Term. 8. CodeRED Weather Warning®: Licensor's CodeRED Weather Warning® Service ("CRWW") expands the benefits of the Service to include the automatic launching of prerecorded CRWW notifications to members of Licensee's Calling Area who opt-in to CRWW (each a "Subscriber" and collectively, the "Subscribers"). These automated notifications are initiated by the issuance of severe weather alerts by the National Weather Service ("NWS"), with no intervention on the part of Licensee or Licensor. Subscribers to be notified are determined by matching the geographic location associated with each Subscriber against the geographic polygon(s) associated with severe weather alerts issued by NWS. CRWW is available only as an add-on module for the Service. All reference to the Service herein shall be deemed to include CRWW. Severe weather events can occur at any time of day or night.Accordingly, CRWW notifications will automatically be launched in response to the issuance of NWS severe weather alerts at any time, 24 hours/day. CRWW will notify ONLY those Subscribers that have CHOSEN to participate through the opt-in process. CRWW will be limited to Subscribers located within the Calling Area who have added their name and geographic location to the CRWW Subscriber database via the Licensee's community notification enrollment site. This site is hosted by Licensor for the purpose of allowing Subscribers to add their contact information to both the CodeRED® database and the CRWW database via the Internet. Subscribers shall be subject to the terms and conditions for CRWW, which can be reviewed at: http://ecnetwork.com/privacy-policy. ONLY THOSE SUBSCRIBERS WHO OPT-IN TO CRWW WILL BE ELIGIBLE TO RECEIVE CRWW NOTIFICATIONS. LICENSEE MAY BE REQUIRED TO APPROVE SUBSCRIBER ENTRIES PRIOR TO THE SUBSCRIBERS BEING ACTIVATED AND ENTERED INTO THE DATABASE. 9. (PAWS Submission App: The Integrated Public Alert Warning System ("IPAWS") is a public alert and warning system developed and maintained by the Federal Emergency Management Agency ("FEMA"), and is designed to provide integrated services and capabilities to local, state and federal authorities for the purpose of enabling them to alert and warn their respective communities via multiple communication methods. The Service has the ability to permit authorized IPAWS users to deliver messages to IPAWS through the Service using an IPAWS add-on module (the "IPAWS Submission App"). The IPAWS Submission App is available only as an add-on module for the Service. All use of the IPAWS Submission App, including but not limited to unauthorized use or access to IPAWS through Licensee's account, shall be considered use of the Service. a) Licensee represents and warrants to Licensor that Licensee, and any employees, agents, or representatives of Licensee that access the IPAWS Submission App (each a "User" and collectively the"Users"), are authorized by FEMA to use IPAWS and have completed IPAWS training as required by FEMA. Licensee shall contact Emergency Communications Network,LLC Page 2 of 11 Initials �fj,/ CodeRED®NEXT Services Agreement License Licenso Licensor immediately upon any change in Licensee's, or any User's, right to access IPAWS, including but not limited to any change in any User's employment status which may otherwise result in such User no longer being authorized to have access to IPAWS. Licensee shall notify Licensor to designate which pass codes for the Service shall have the ability to view the IPAWS Submission App. Licensee understands and agrees that the IPAWS Submission App may only be accessed by Users with pass codes for the Service. Licensee further understands and agrees that access to the IPAWS Submission App shall require a separate pass code from that used to access the Service, that such pass code shall be established solely by the User, and that Licensor shall not have access to such pass code. Licensee shall assume full responsibility for maintaining the confidentiality of all pass codes used to access the IPAWS Submission App. b) Licensee represents and warrants that it has been granted a digital signature to access IPAWS (the "Signature")from FEMA. In order to use the IPAWS Submission App, Licensee agrees to provide Licensor with a copy of the Signature, Licensee's Application for IPAWS Public Alerting Authority, Licensee's keystore and pass codes for the Signature, along with any other information reasonably requested by Licensor to demonstrate Licensee's compliance with FEMA and right to access IPAWS through the IPAWS Submission App. Licensee agrees that the Signature shall be submitted separately from any information disclosing its associated keystore and pass codes. The Signature may be sent to Licensor in hard copy and/or electronic format on CD or USB Drive, by mailing such information to Licensor, via certified mail or other nationally recognized overnight delivery carrier, delivery confirmation requested to Licensor's Director of Software Development. All remaining items, including without limitation, Licensee's Application for IPAWS Public Alerting Authority, and Licensee's keystore and pass codes for the Signature, may be emailed to a designee of Licensor separately from the Signature. Licensee specifically authorizes Licensor to use and keep such information on Licensor's servers, including but not limited to the Signature, for the purpose of allowing Licensee and Licensor to access, use and test IPAWS through the IPAWS Submission App. Licensor and Licensee acknowledge and agree that, upon termination of this Agreement,the Signature shall be removed from the IPAWS Submission App. Licensee further agrees that Licensor shall in no way be liable for any transmission, copying, or security issues which arise from Licensee's transmission of confidential (PAWS information through non-secure means, including without limitation email. Licensee shall take steps to ensure that the transmission of such information is completed with best practices. Licensor shall not be deemed to be in receipt of any information absent delivery confirmation of same; Licensee shall be solely responsible for arranging, including but not limited to paying any costs associated with, delivery confirmation. c) Licensee acknowledges and agrees that: (i) the IPAWS Submission App permits Licensee to submit messages to IPAWS, however, the dissemination of messages through IPAWS, including but not limited to delivery through the Emergency Alert System ("EAS") or the Commercial Mobile Alert System ("CMAS"), is not guaranteed nor controlled by Licensor, and is the sole responsibility of FEMA and its associated agencies, and Licensor shall not be responsible or liable for the failure of messages to be disseminated through IPAWS; (ii) IPAWS may include additional features which are not supported through the IPAWS Submission App, including without limitation the receipt of messages, and Licensor shall not be required to provide such additional features to Licensee; and (iii) Licensee shall be solely responsible for the content of all messages delivered to IPAWS through the IPAWS Submission App and for any and all claims, whether raised by FEMA or a third party, regarding messages sent by Licensee, or using Licensee's pass codes,through the IPAWS Submission App. 10. Appropriate Use of The Service: Licensee agrees to use the Service in a way that conforms with all applicable laws and regulations, including but not limited to all laws regarding outbound telemarketing, the Federal Telephone Consumer Protection Act of 1991, The Telemarketing and Consumer Fraud and Abuse Prevention Act of 1999, as well as State and Local telemarketing laws and requirements. Licensee agrees not to initiate a call, such that the same call is to be delivered to two (2) or more lines of a business. Licensee specifically agrees not to make any attempt to gain unauthorized access to any of Licensor's systems or networks. Licensee agrees that Licensor shall not be responsible or liable for the content of the message(s) created by Licensee, or by those who access the Service using Licensee's codes, or otherwise delivered by the Service on behalf of Licensee. Licensee agrees to be solely responsible for any and all lawsuits, demands, liabilities, damages, claims, losses, costs or expenses, including its own and any awarded attorneys' fees (whether by salary, retainer or otherwise), from any claim, whether brought by a third party, arising from any violation of this Agreement by Licensee; from the content, placement, or transmission of any messages or materials sent or maintained through Licensee's accounts, or use of the Service through Licensee's account; and from any violations of any laws by Licensee. Emergency Communications Network,LLC Page 3 of 11 Initials CodeRED®NEXT Services Agreement Licensee Lice ! 1 11. Indemnification. Licensor will defend, indemnify, and hold harmless Licensee from and against any all liabilities, claims, damages, losses, costs and expenses (including reasonable attorney's fees) owing to third parties (collectively, "Liabilities") suffered or sustained by Licensee, or to which Licensee becomes subject, arising out of or incurred as a result of(a) any infringement of any third party's patent, copyright, trademark, or trade secret rights by the Service provided by Licensor under this Agreement(other than to the extent based on any content created by Licensee or using Licensee's account due to Licensee's failure to maintain account security or any modifications to the Service made by Licensee), or(b)any gross negligence or willful misconduct by Licensor. The foregoing obligation of indemnification does not apply with respect to the Service or portions or components thereof (i) that Licensor did not supply, (ii) that are combined with other products, processes or materials where the infringement or misappropriation relates to such combination, unless Licensor expressly authorized such combination, (iii) to the extent that Licensee continues allegedly infringing activity after being provided modifications that would have avoided the alleged infringement, or (iv) where Licensee's use of the Service is not strictly in accordance with this Agreement. In the event Licensor believes that the Service is, or is likely to be, the subject of an infringement claim, Licensor may, at its option, (1)procure for Licensee the right to continue using the Service under this Agreement, (2) replace or modify the Service so that it becomes non- infringing but substantially equivalent in functionality and performance, or (3) if neither clause (1) or (2) are reasonably feasible in spite of Licensor's reasonable efforts, terminate this Agreement and the rights granted herein and refund to Licensee a prorated portion of fees based on the remaining unused portion of the Term, less any expenses previously incurred by Licensee. The foregoing obligations are Licensors only obligations and liability in connection with infringement by the Service. 12. Security: Licensor will use commercially reasonable practices and standards to secure and encrypt data transmissions. Licensee understands and acknowledges that Licensor is providing the Service on the internet through an "upstream" third party internet service provider, utilizing public utility services which may not be secure. Licensee agrees that Licensor shall not be liable to Licensee in the event of any interruption of service or lack of presence on the intemet as a result of any disruption by the third party internet service provider or public utility. Licensee agrees that Licensor cannot guarantee the integrity of any Licensee supplied or third- party supplied data.Any errors, duplications, or inaccuracies related to Licensee or third-party supplied data will be the responsibility of Licensee. 13. Representations and Warranties: Licensee represents and warrants that: (a) Licensee is responsible for maintaining access to the internet in order to use the Service; Licensor in no way warrants Licensee's access to the Internet via Licensee's internet service provider(s); and (b) Under certain rare instances not all technologies are compatible without manual intervention by both parties. Licensee agrees that its staff will cooperate with Licensor's staff to make necessary modifications to allow the Service to perform. Licensor represents and warrants that: (i) the Service will perform materially in accordance with any official, applicable documentation that Licensor provides to Licensee for the Service (electronic or written, as available in the Service's resource library)("Documentation"); and (ii)Licensor shall provide the Service in a professional and diligent manner. In the event the Service fails to perform materially in accordance with its Documentation (a "Program Error"), Licensor agrees, for the Term of this Agreement, to use commercially reasonable efforts to correct, cure or otherwise remedy, at Licensor's option, such Program Error at Licensor's sole expense, provided such Program Error was not caused due to Licensee's failure to use the Service in accordance with the terms of this Agreement. Licensee agrees to cooperate and work closely with Licensor in a prompt and reasonable manner in connection with Licensor's correction efforts. Licensee's sole remedy for any breach of warranty under this section will be to have Licensor use its commercially reasonable efforts to cure such breach as provided herein. If Licensor breaches its obligation to address a Program Error in accordance with severity levels set forth on Exhibit B, attached hereto, Licensee shall be entitled to offset an amount equal to the prorated value of the annual fee times each hour which exceeds the time frames on Exhibit B as liquidated damages against the next invoice owed from Licensee to Licensor.The parties agree that quantifying losses arising from Licensor's delay to meet the requirements of Exhibit B is inherently difficult insofar as delay may impact the Licensee's reputation, and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the parties'experience in the given the nature of the losses that may result from delay. This provision shall not apply in the event of concurrent delay or delay caused by a third-party. If Licensor fails to remedy any Program Error within one (1) month, Licensee may terminate this Agreement for Licensor's breach, as set forth herein. Licensee and Licensor each represent and warrant that the individual signing on behalf of such party has full authority to cause such party to enter into and be bound by the terms of this Agreement and that the execution of this Agreement has been properly made in accordance with any applicable laws, ordinances, rules, regulations, and governing documents by which such party may be bound. Emergency Communications Network,LLC Page 4 of 11 Initials tyy CodeRED®NEXT Services Agreement LicensefA1� LI 14. Disclaimer: In no event (even should circumstances cause any or all of the exclusive remedies to fail their essential purpose, and even if Licensor has been advised of the possibility of such damages)shall Licensor, its officers, directors, managers, members, employees or agents, be liable for any indirect, punitive, special, incidental or consequential damages of any nature (regardless of whether such damages are alleged to arise in contract, tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in connection with or ensuing from the existence, furnishing,function, or Licensee's use of any item or products or services provided for in this Agreement. Licensee understands that the cumulative liability of Licensor for any and all claims relating to this Agreement or any item or products or services provided to Licensee shall not exceed the most recent payment made by Licensee to Licensor. Except for the limited warranties provided for herein, the Service is provided as-is, and Licensor disclaims all warranties, express or implied, and does not warrant for merchantability or fitness of a particular purpose. Licensee recognizes that once notifications have been released from Licensor's equipment, the ultimate delivery of such notifications depends on the message recipient's local network.As a result Licensor cannot guarantee the delivery of notifications to a recipient. 15. Confidentiality: Licensor acknowledges the confidential nature of Licensee supplied data and files that it is to prepare, process or maintain under this Agreement, and agrees to perform its duties in such a manner as to prevent the disclosure to the public or to any persons not employed by Licensor, any confidential data and files. Data collected by Licensor will remain secured on Licensor's equipment and will only be released upon mutual agreement by both parties or a court order of sufficient jurisdiction. Licensee understands and agrees that private citizens and other persons in the Calling Area may voluntarily contribute their contact information to be used in the Service, and that Licensor shall develop and maintain a database of such information, along with other information privately developed by Licensor(the"Data"). Licensee acknowledges and agrees that Licensor desires to maintain the privacy of the Data, and that Licensee shall take no steps to compromise the privacy of the Data. Licensor understands and agrees that private citizens and other persons in the Calling Area may designate that the data they provide to Licensor may be given to Licensee (the "Resident Data"). Licensor agrees that it will, upon termination of this Agreement and the request of Licensee, provided all fees due hereunder are paid in full, transmit the Resident Data, one (1) time, to Licensee. Licensor reserves the right to charge Licensee any database maintenance fees it incurs in processing such request, as set forth on Exhibit A. Licensee further acknowledges that Licensor shall disclose to Licensee certain confidential, proprietary trade secret information of Licensor (along with the Data, "Confidential Information"). Confidential Information may include, but is not limited to, the Service, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Licensee agrees that, at all times during and after the termination of this Agreement, Licensee will not, without the express prior written consent of Licensor, disclose any Confidential Information or any part thereof to any third party. Nothing in this Agreement will be deemed to require Licensor to disclose any Confidential Information to Licensee or to prohibit the disclosure of any information in response to a subpoena or other similar order by a court or agency. Licensee will promptly notify Licensor of the receipt of any subpoena or other similar order and of any request under the Public Information Act or any other similar law, and will assist Licensor in preventing the disclosure of the Confidential Information pursuant to same to the extent required by Licensor. 16. Termination: a) Termination for Convenience. Licensee, at its sole discretion, shall have the right to terminate this Agreement,for any reason, by giving written notice to Licesnor of such termination, specifying the effective date thereof, at least thirty (30) days before the effect date of such termination; and in such case, all fees that have already been paid by Licensee shall not be refunded and any fees then-due to Licensor shall be paid by Licensee. b) Termination for Cause. (i) Licensee, in its sole discretion, may terminate this Agreement immediately, and without further notice, as a result of Licensor's breach of this Agreement, and in such case, Licensor will refund Licensee an amount equal to the monthly prorated balance of the annual fee based on the number of days left in the term of the Agreement, less the rate of $0.09 cents, times each System Minute used by Licensee; (ii) Licensor, in its sole discretion, may terminate this Agreement immediately, and without further notice, as a result of Licensee's breach of this Agreement,and in such case, all fees that have already been paid by Licensee shall not be refunded and any fees then-due to Licensor shall be paid by Licensee. Emergency Communications Network,LLC Page 5 of 11 Initials CodeRED®NEXT Services Agreement Licensee Lice 41!4. c) Upon termination of this Agreement, Licensee will return all Confidential Information and copies to Licensor and Licensee agrees to remove from Licensee's computer(s), and any computers within Licensee's control, any and all files and documents related to the Service. d) Licensee understands and agrees that it has been granted multi-year discounted pricing by Licensor, and that, in the event this Agreement is terminated in accordance with paragraph 16.c)i) prior to the completion of the Initial Term, Licensee shall immediately pay, in full, to Licensor at the time of premature termination, a termination fee equal to the Multi-Year Discount set forth on Exhibit A. 17. Entire Agreement: this Agreement supersedes all prior understandings or agreements, whether oral or written, on the subject matter hereof between the parties. Only a further writing that is duly executed by both parties may modify this Agreement. The terms and conditions of this Agreement will govern and supersede any additional terms provided by Licensee, including but not limited to additional terms contained in standard purchase order documents and third party application terms, unless mutually agreed to, via written signature, by Licensee and Licensor. The terms of this Agreement shall not be waived except by a further writing executed by both parties hereto. The failure by one party to require performance of any provision shall not affect that party's right to require performance at any time thereafter, nor shall any waiver under this Agreement constitute a waiver of any subsequent action. 18. Notices: All notices or requests, demands and other communications hereunder shall be in writing, and shall be deemed delivered to the appropriate party upon: (a) personal delivery, if delivered by hand during ordinary business hours; (b)the day of delivery if sent by U.S. Mail, postage pre-paid; (c)the day of signed receipt if sent by certified mail, postage pre-paid, or other nationally recognized carrier, return receipt or signature provided and in each case addressed to the parties as follows: As to Licensor: Emergency Communications Network, LLC, 780 W. Granada Boulevard, Ormond Beach, FL 32174 As to Licensee: Augusta, Georgia EMA Office, 3117 Deans Bridge Road,Augusta, GA 30906 With a copy to: Augusta Law Department, Attn: General Counsel, 535 Telfair Street, Building 3000,Augusta, GA 30901 Either party may change the address provided herein by providing notice as set forth in this paragraph. 19. General: In the event of any dispute arising under this Agreement, the parties hereto shall use their best efforts to settle such dispute by consulting and negotiating with each other, in good faith, prior to the initiation of any litigation. At the written request of either party containing notice of dispute, each party will appoint a senior management representative, both of which shall use commercially reasonable efforts to resolve the dispute without the need for litigation. Litigation for the resolution of any dispute may not be commenced until sixty(60) days have passed since the initial notification regarding the dispute was made, or such longer period as the parties may mutually agree. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in the Superior Court of Richmond County, Georgia, and Licensor consents to the jurisdiction of such courts. 20. Jurisdiction, Venue, Interpretation and Severability: Any dispute regarding this Agreement shall be filed in the Superior Court of Richmond County, Georgia. By executing this Agreement, the Licensor specifically assents to jurisdiction and venue in the Superior Court of Richmond County, Georgia. In the event any provision of this Agreement is determined by a court of competent jurisdiction to be void, the remaining provisions of this Agreement shall remain binding on the parties hereto with the same effect as though the void provision(s) had been limited or deleted, as applicable. 21. Force Majeure; Suspension: Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by the other party, its employees, agents or contractors. The parties will promptly inform and consult with each other as to Emergency Communications Network,LLC Page 6 of 11 Initials CodeRED®NEXT Services Agreement LicenseeN0"1!r Li 4011112 any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement. Licensee may suspend performance of this Agreement by providing written notice to Licensor at least thirty(30)days prior to the date of suspension. Upon such suspension, Licensee shall be entitled to recoup the amount of time representing the period of such suspension in a pro rata offset to the next required payment to Licensor hereunder. Any suspension under this paragraph may not exceed thirty(30) calendar days in any given year. During such suspension, Licensor shall not perform any work under this Agreement until receipt of written notice from Licensee, provided however, in the event the suspension has reached thirty(30)days in any given year, Licensor may resume normal performance under this Agreement. 22. Counterparts and Construction: This Agreement may be executed in counterparts, each of which shall constitute an original, with all such counterparts constituting a single instrument. The headings contained in this Agreement shall not affect the interpretation of this Agreement and are for convenience only. Licensee agrees that this Agreement shall not be construed against Licensor as the drafter, and that Licensee has read and understands this Agreement,and has had the opportunity to review this Agreement with legal counsel. 23. Survival: Certain obligations set forth herein represent independent covenants by which either party hereto may be bound and shall remain bound regardless of any breach of this Agreement and shall survive termination of this Agreement. 24. Contingent Fees: Licensor represents and warrants that it has not paid or agreed to pay any company, corporation, individual or firm, other than a bona fide employee working for Licensor, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from this Agreement. 25. Insurance: a)Licensor shall maintain the following insurance during the term of this Agreement: i)Workers'Compensation and Employer's Liability Insurance in accordance with applicable law, and ii)Comprehensive General Liability-$1,000,000.00 per person/$2,000,000 per occurrence,and iii) Professional Liability-$1,000,000.00 per person/$2,000,000 per occurrence; or iv)Miscellaneous Errors and Omissions-$1,000,000.00 per person/$2,000,000 per occurrence, or v)Product Liability-$1,000,000.00 per person/$2,000,000 per occurrence, or vi)Automotive Liability Insurance covering all automotive units used in performing the Service with limits of not less than $100,000 each person and $300,000 each accident as to bodily injury and $25,000 as to property damage to others. b)Licensor shall provide forty-five(45)days'written notice of cancellation or material change of any policies. c) Before any work is done pursuant to this Agreement, a copy of the certificate of insurance shall be filed with Licensee. 26. Changes: Licensor acknowledges that this Agreement and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Board of Commissioners of Licensee and approval of the Mayor of Licensee. Under Georgia law, Licensor is deemed to possess knowledge concerning Licensee's ability to assume contractual obligations and the consequences of Licensor's provision of goods or services to Licensee under an unauthorized contract, amendment, modification, change order or other similar document, including the possibility that the Licensor may be precluded from recovering payment for such unauthorized goods or services. Accordingly, Licensor agrees that if it provides goods or services to Licensee under a contract that has not received proper legislative authorization or if the Licensor provides goods or services to Licensee in excess of the any contractually authorized goods or services, as required by Licensee's Charter and Code, Licensee may withhold payment for any unauthorized goods or services provided by Licensor. Licensor assumes all risk of non-payment for the provision of any unauthorized goods or services to Licensee, and it waives all claims to payment or to other Emergency Communications Network,LLC Page 7 of 11 Initials �. CodeRED®NEXT Services Agreement Licensee Licen • I% remedies for the provision of any unauthorized goods or services to Licensee, however characterized, including, without limitation, all remedies at law or equity. 27. Inspection: Licensee may, at reasonable times, inspect the part of the plant, place of business, or work site of Licensor or its subcontractors or subunits thereof which is pertinent to the performance of the Service hereunder. 28. Audits: Licensee may, at reasonable times and places, audit the books and records of Licensor to the extent that such books, documents, papers, and records are pertinent to any cost or pricing data set forth herein. Licensor shall maintain such books, documents, papers, and records that are pertinent to such cost or pricing data for three(3)years from the date of final payment under this Agreement. IN WITNESS WHEREOF,the parties execute this Agreement on the date(s)indicated below. Licensee: Licensor: Augusta, Georgia Board of Commissioners Emergency Communications Network, LLC Sign ftt"1 40,1 4. .«.,, ,. ... .w- * ` Signature: x -,;. Prin d Name: Har�'ptlr� ,i►� g,%CH i Otia4 Printed Name: David DiGiacomo 111.4. Title ; Mayor�!,�!►' r'T Date iaf 4� r ' _:; p�,.� Title: President `7 ( �� r, ,-yt • ; Date: 0�13t12o0' ATT ST/ ti1 f f / . t Me if Prin d Nam,. Len2 nner .`/ Title Clerk of Co ��'�or►" Approved as to conoeptriausigaitiand.saimet selection: Signature: .5:AA-- Printed Name: Christopher E.James Title: Fire Chief/EM Director Date: DA 9\3/, p /'7 Emergency Communications Network,LLC Page 8 of 11 Initials "kg- 0 CodeRED®NEXT Services Agreement Licensee Li. •• •..ort� Exhibit A—Service Charges One(1)year CodeRED®NEXT Services Agreement $33,155.00 Unlimited CodeRED®System Minutes $ Included "System Minute"means sixty(60)seconds of connected call time in the Service Unlimited CodeRED®user pass codes $ Included CodeRED Weather Warning® $ Included IPAWS Submission App $ Included One(1)CodeRED®distance training session $ Included Additional distance training sessions may be purchased for$150.00 per hour(one hour minimum) Additional on-site training sessions maybe purchased for$1.500.00 per trainer,per day,plus all travel,ground transportation,and lodging expenses. Initial Residential Database Upload $Waived Standard CodeRED®data collection website $ No Charge Residents may use this site to opt-in. There is no fee for residents to opt-in. Email and Text Messaging $ No Charge Annual System Maintenance, including all Software Upgrades $No Charge Database Accuracy Updates Licensor Supplied Database:"Licensor Database Accuracy Updates"ensure that the data population maintained by Licensor under this Agreement undergoes periodic accuracy checks using the Licensor's most current in-house compiled database including,but not limited to, household addresses and telephone numbers.Licensor Database Accuracy Updates are performed by Licensor 3 to 4 times per year. Licensee Supplied Database:One annual"Licensee Supplied Database Accuracy Update"will be performed by the Licensor upon request by the Licensee at no charge. It will be the sole responsibility of the Licensee to provide data and request updates from the Licensor. Additional updates requested by Licensee will incur charges at the rate listed below after the update service is completed by Licensor. A service labor fee of One Hundred Dollars($100.00)per hour will be billed to Licensee for any data importing,manipulating,and loading any database supplied by Licensee or on Licensee's behalf to Licensor. $100 Der hour for database maintenance Professional Services Upon Request: $135.00 per hour Licensor shall perform professional services as requested from time to time by Licensee in its sole discretion. Emergency Communications Network,LLC Page 9 of 11 Initials CodeRED®NEXT Services Agreement Licensee Licens.• Exhibit B—Program Error Resolution Standards Severity This indicates the level of response Licensor will apply to a Program Error or request, as well as notification time frames. Maintaining an operational system for all customers is the highest priority for Licensor. Note that the Severity of any Program Error may change at any time based on the currently available information. Whenever the Severity of a Program Error changes, notification procedures, as defined below, will be met according to the newly assigned Severity. While Licensor will always take customer urgency into account, Licensor reserves the right to classify the Severity of each incident. Licensor maintains a 24x7 Network Operations Center ("NOC") which is monitoring and proactively addressing issues detected within the data centers. In many cases, the NOC will detect issues before any customers are impacted. Licensor takes our mission to be Real-Time Ready"' as a personal commitment to our clients and their constituents. For Severity 1 and 2, Licensor will use internal escalation processes which bring data center management, technical experts and executive management together to resolve the Program Error as quickly as possible. Any Licensor employee may call for an escalation following our internal procedures. Licensor will make every effort to correct the issue as soon as possible. Due to the complexity of the system and our dependence on 3rd party service providers, Licensor cannot commit to specific resolution times for Program Errors regardless of Severity. Severity 1 A Severity 1 (S1) Program Error is declared when: • 5 or more customer accounts are unable to launch any notifications using any media type or • Weather warnings are unable to be delivered within 20 minutes or • Licensor personnel are unable to re-launch any customer notifications or • Customer data is corrupted, lost and cannot be immediately recovered. Upon the occurrence of an S1, Licensor's client services personnel will reach out to affected customers within 2 hours with information on the Program Error and actions being taken. An update will be provided to affected customers at least every 2 hours until the Program Error is resolved. When requested, a written explanation of the Program Error will be provided within 5 business days of resolution of the Program Error. Severity 2 A Severity 2(S2)Program Error is declared when: • Any customer is unable to send emergency notifications using any media type that is confirmed not due to a user error or • 5 or more customer accounts are unable to send non-emergency notifications using any one media type where Licensor is able to re-launch the customer notifications in a timely manner or • The system is reporting errors requiring manual intervention which is not part of documented response procedures within the NOC or • Customer data is impacted and recovered or • System response is severely impacting 5 or more customers preventing them from using the Service. Upon the occurrence of an S2, Licensor's client services personnel will reach out to affected customers within 4 hours with information on the Program Error and actions being taken. An update will be provided to affected customers at least every 4 hours until the Program Error is resolved. When requested, a written explanation of the Program Error will be provided within 5 business days of resolution of the Program Error. While the issue is being addressed, the customer may be asked to use alternate procedures or postpone non- critical activities. Severity 3 A Severity 3(S3)incident is declared when: Emergency Communications Network,LLC Page 10 of 11 Initials CodeRED®NEXT Services Agreement Licensee Lice • Customers are having trouble launching notifications but Licensor's personnel are able to launch on their behalf(not including user error)or • System response is impacting 5 or more customer accounts from using the Service normally or • The system is reporting errors requiring manual intervention which is part of the documented response procedures within the NOC. Upon the occurrence of an S3, Licensor's client services personnel will reach out to affected customers within 8 hours with information on the Program Error and actions being taken. An update will be provided to affected customers at least every business day until the Program Error is resolved. While the issue is being addressed, the customer may be asked to use alternate procedures or postpone non- critical activities. Severity 4 A Severity 4 (S4)incident is declared when: • Any customer account reports an unacceptable experience using the Service using typical procedures while still able to launch notifications or • Any customer account requires assistance with a standard operation requiring support activities beyond client services. Upon the occurrence of an S4, Licensor's client services personnel work with the customer account to collect the required information for support and other technical personnel to respond within 5 business days. While the Program Error is being addressed, the customer may be asked to use alternate procedures or postpone non- critical activities. Emergency Communications Network,LLC Page 11 of 11 Initials • CodeRED®NEXT Services Agreement Licensee Licen