CONTRACT 4287 Professional Services AgreementPROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
INTUITIVE CONTROL SYSTEMS, LLC
This AGREEMENT is entered into this 1sT day of June, 2012, by and between the CITY
OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and INTUITIVE
CONTROL SYSTEMS, LLC a LIMITED LIABILITY CORPORATION ( "CONSULTANT ").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed Twenty -Four Thousand, Eight - Hundred Sixty -Seven dollars ($24,867) for
CONSULTANT's services. CITY may modify this amount as set forth below.
Unless otherwise specified by written amendment to this Agreement, CITY will
pay this sum as specified in the attached Exhibit "A," which is incorporated by
reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "B," which is
incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY, necessary or proper
to perform and complete the work and provide the professional services required
of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit "A ")
the tasks performed, the percentage of the task completed during the billing period, the
cumulative percentage completed for each task, the total cost of that work during the preceding
billing month and a cumulative cash flow curve showing projected and actual expenditures
versus time to date.
5. NON - APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement
will cover only those costs incurred up to the conclusion of the current fiscal year.
ADDITIONAL WORK.
A. CITY's city manager ( "Manager ") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ( "Additional
Work ") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over $100 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
i. Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
& If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at
CONSULTANT's own risk until written instructions are received from CITY.
8. TERM. The term of this Agreement will be for three (3) years. This Agreement will
automatically renew, on an annual basis, on its anniversary date unless otherwise terminated.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A ";
B. Termination as stated in Section 15,
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below:
A. Exhibit A: Scope of Work;
B. Exhibit B: Additional Terms
C. Exhibit C: Subscription T -1
11. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
12. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement.
14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
15. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
B. CONSULTANT may terminate this Agreement at any time upon thirty (30 days
written notice.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT" own cost; CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by CONSULTANT
will, at CITY's option, become CITY's property, and CONSULTANT will
receive just and equitable compensation for any work satisfactorily completed up
to the effective date of notice of termination, not to exceed the total costs under
Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
F. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
16. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's
property. CONSULTANT may retain copies of said documents and materials as desired, but
will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product, is at CITY's own risk.
17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY, unless otherwise provided by written agreement between the parties.
18. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense
costs for CITY and all its officers, volunteers, employees and
representatives from and against any and all suits, actions, or claims,
of any character whatever, brought for, or on account of, any injuries
or damages sustained by any person or property resulting or arising
from any negligent or wrongful act, error or omission by
CONSULTANT or any of CONSULTANT's officers, agents,
employees, or representatives, in the performance of this Agreement,
except for such loss or damage arising from CITY's sole negligence or
willful misconduct.
ii, Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages,
costs (including, without limitation, attorney's fees), injuries, or
liability, arising out of this Agreement, or its performance, except for
such loss or damage arising from CITY's sole negligence or willful
misconduct. Should CITY be named in any suit, or should any claim
be brought against it by suit or otherwise, whether the same be
groundless or not, arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in settlement or
otherwise.
iii. Intellectual Property Infringement. Notwithstanding any provision to
the contrary, CONSULTANT will, at its own expense, indemnify and
defend CITY against any claim that CONSULTANT's services or
work product furnished under this Agreement infringes a patent or
copyright in the United States or Puerto Rico. In such event,
CONSULTANT will pay all costs damages and attorney's fees that a
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court finally awards as a result of such claim. To qualify for such
defense and payment, CITY must (a) give CONSULTANT prompt
written notice of any such claim; and (b) allow CONSULTANT to
control, and fully cooperate with CONSULTANT in the defense and
all related settlement negotiations. CITY agrees that if the use of
CONSULTANT's services or work product becomes, or
CONSULTANT believes is likely to become, the subject of such an
intellectual property claim, CITY will permit CONSULTANT, at its
option and expense, either to secure the right for CITY to continue
using CONSULTANT's services and work product or to replace it
with comparable services and work product.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 22, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONSULTANT
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
19. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
20. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONSULTANT will be free to contract for similar service to
be performed for other employers while under contract with CITY. CONSULTANT is not an
agent or employee of CITY and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of doing the work
or to exercise a measure of control over the work means that CONSULTANT will follow the
direction of the CITY as to end results of the work only.
21. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same and to make
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONSULTANT will retain such financial and program service records for at least three (3) years
after termination or final payment under this Agreement.
22. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONSULTANT will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Type of Insurance Limits
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements of
ISO -CGL Form No. CG 00 01 1185 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name CITY, its officials, and employees as "additional insureds"
under said insurance coverage and to state that such insurance will be deemed
"primary" such that any other insurance that may be carried by CITY will be
excess thereto. Such insurance will be on an "occurrence," not a "claims made,"
basis and will not be cancelable or subject to reduction except upon thirty (30)
days prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONSULTANT will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
CONSULTANT for all claims made by CITY arising out of any errors or
omissions of CONSULTANT, or its officers, employees or agents during the time
this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of "A:VII."
F, Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 15.
23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation. The consultants listed
in Exhibit `B" are hereby approved.
24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
25. NOTICES. All communications to either party by the other party will be deemed made
when received by such parry at its respective name and address as follows:
If to CONSULTANT:
All Traffic Solutions
3100 Research Drive,
State College, PA 16801
Attention: Jody Rowe, Accounting Manager
If to CITY:
City of El Segundo
348 Main Street
El Segundo, CA
Attention: Captain, Administrative Services
Bureau, ESPD
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
26. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY's conflict of interest regulations.
27. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person, other than CONSULTANT's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
4287 . ,I ,,_
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CITY's obligations under this Agreement.
29. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
31. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are three (3) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
32. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
33. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
34. AUTHORITY /MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
35. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
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natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
39. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, and experience in
dealing with public agencies all suggest that CONSULTANT is capable of performing the
proposed contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
[Signatures on next page]
IN WITNESS WHEREOF' the parties hereto have executed this contract the day and year
first hercinabove written.
ary OF EL 8 -G U N DO
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City atiager
ATTEST:
Tr- my er,,
(" y Clerk
,raxpayer ID No 9,Cl
EXHIBIT A — SCOPE OF WORK
4287 a, r At
BILL TO: SHIP TO:
City of El Segundo City of El Segundo
Accounts Payable 348 Main Street
350 Main Street El Segundo, CA 90245 -3813
El Segundo, CA 90245 -3813
Attn: Carlos Mendoza
PAYMENT TERMS: CUSTOMER: 202043 CONTACT: 310 - 524 -2339
Net 30
ITEM NO:
DESCRIPTION:
QTY:
EACH:
EXT.
PRICE:
4000561
Shield 12 Speed Display; base unit w/ mounting
1
$3,150.00
$3,150.00
bracket
4000647
App, Traffic Suite (12mo); Equip Mgmt,
1
$1,500.00
$1,500.00
Reporting, Image Mgmt, Alerts, Mapping and
PremierCare
4000760
All Options Activation: Bluetooth, Traffic Data,
1
$3,000.00
$3,000.00
Violator Alert, Pictures, Linking (as applic)
4000719
Options CREDIT; requires SmartApp Traffic Suite
1
($3,000.00)
($3,000.00)
4000743
LFP Power kit, 10Ah battery (2), internal power
1
$750.00
$750.00
controller, charger w /connector
4000561
Shield 12 Speed Display; base unit w/ mounting
2
$3,150.00
$6,300.00
bracket
4000772
App, Traffic Suite (24mo); Equip Mgmt,
2
$3,000.00
$6,000.00
Reporting, Image Mgmt, Alerts, Mapping and
PremierCare
4000758
Trade -in CREDIT: ATS speed display
2
($3,150.00)
($6,300.00)
4000760
All Options Activation: Bluetooth, Traffic Data,
2
$3,000.00
$6,000.00
Violator Alert, Pictures, Linking (as applic)
4000719
Options CREDIT; requires SmartApp Traffic Suite
2
($3,000.00)
($6,000.00)
4000745
SpeedAlert 24 Radar Message Sign (RMS); base
1
$9,000.00
$9,000.00
unit (select mount separately)
4000772
App, Traffic Suite (24mo); Equip Mgmt,
1
$3,000.00
$3,000.00
Reporting, Image Mgmt, Alerts, Mapping and
PremierCare
4287 - 0.i
4000761
Trade -in CREDIT: ATS radar message display
1
($7,000.00)
($7,000.00)
4000760
All Options Activation: Bluetooth, Traffic Data,
1
$3,000.00
$3,000.00
Violator Alert, Pictures, Linking (as applic)
4000719
Options CREDIT; requires SmartApp Traffic Suite
1
($3,000.00)
($3,000.00)
4060072
Shipping Charge, SA/iA 24 3 -way, flat -rate
1
$0.00
$0.00
4000641
Shipping
1
$0.00
$0.00
4000603
AC supply, 6A, 12VDC out, 120VAC 50/60 Hz in,
1
$465.40
$465.40
NEMA 4 (Sh12,Sh15,SA18JA18)
4000724
Retrofit upgrade for Re- certified SS12 Speed
2
$0.00
$0.00
Display to leverage web platform; hdwr only
4000772
App, Traffic Suite (24mo); Equip Mgmt,
2
$3,000.00
$6,000.00
Reporting, Image Mgmt, Alerts, Mapping and
PremierCare
4000760
All Options Activation: Bluetooth, Traffic Data,
2
$3,000.00
$6,000.00
Violator Alert, Pictures, Linking (as applic)
4000719
Options CREDIT; requires SmartApp Traffic Suite
2
($3,000.00)
($6,000.00)
4000705
Sales Tax
1
$2,000.73
$2,000.73
Special Notes: SALES $24,866.13
AMOUNT:
SHIPPING:
TOTAL: $24,866.13
Duration! This quote is good for 120 days frown date of Issue.
Shipping Motes: Unless ahippi'ng charges are specifically Indicated, prices are FOB factory. Shipping charges may apply
Taxas; Taxes are not Included In quota. please provide a tax exempt certificate or sales tax will be applied.
Warranty: Unless otherwise indicated, all products have a one year warranty from date of sale. Warranty extensions are a component of some applications that are
available at time of purchase. A Finance Charge of 1.5% per month will be applied to overdue balances..
Service Line Billing Options: Only applies to extended subscription payments when required (select one)
Device # Item # Description Term (mo) ❑ Annual ❑ Qtrly ❑ Monthly
5 4000772 App, Traffic Suite (24mo); Equip 24.000 7500.00 2025.00 750.00
Mgmt, Reporting, Image Mgmt,
Alerts, Mapping and PremierCare
1 4000647 App, Traffic Suite (12mo); Equip 12.000 1500.00 405.00 150.00
Mgmt, Reporting, Image Mgmt,
Alerts, Mapping and PremierCare
1. Definitions.
���FA
"Customer Data" shall mean all information and images supplied by Customer or
collected by Customer using any Device and entered, stored or accessed by
Customer on the ATS server.
"Device" shall mean any of the following equipment that is compatible with the
ATS System, including, without limitation, speed displays, message signs or
video products, whether that equipment was manufactured by or purchased from
ATS or a third party.
"Governmental Body" shall mean any governmental body or agency in which
Customer is in the jurisdiction of such body or agency.
"Product" shall mean any ATS or third party product or Device that is compatible
with the ATS System.
"Services" shall mean providing Customer with the ability to communicate with
the Device(s) and granting Customer access to remotely program, manage, view,
a
accumulate and upload Customer Data from the Device using a cellular service,
or any other means, through web -based applications and platform using the ATS
web portal, server and System.
"Start of Service" shall mean the date defined of acceptance of this Agreement
by Customer, or activation and access to the first Device through the ATS server,
whichever is first.
"Subscription Agreement" shall mean the document containing a listing of the
subscription fees charged on a per Device basis for providing specified levels of
Services and the accumulation of Customer Data on the System, which may be
amended from time to time by ATS upon providing Customer with thirty (30) days
prior written notice during which thirty days Customer shall have the option of
terminating this Agreement.
"Subscription Period" shall mean the specified period for the level of Services
chosen and paid in full by Customer in advance from the Start of Service set forth
in the Subscription Agreement. ATS shall have the sole discretion and authority
to set, amend and terminate levels of access and Subscription Periods from time
to time without Customer's consent but upon providing Customer with prior
written notice
"System" shall mean the Product, Services, Devices, web portal, server,
software, documentation and cellular services used by ATS and /or Customer to
collect, store, manage, analyze and access Customer Data. .
"Third Party Provider" shall mean any person or entity other than ATS which
provides any portion of the System to ATS.
"Underlying Carrier" shall mean the communications carrier, which may be
providing international, interstate, intrastate communications services to ATS,
which in turn provides the same to Customer.
2. Access and Ownership. All Customer Data entered, stored and accessed
on the ATS server shall be owned by Customer.
3. System. ATS agrees to provide Customer access to the ATS server
through the ATS web portal via one or more user access accounts delivered by
ATS to Customer for its limited access to the Customer Data during the
Subscription Period pursuant to the level of Services chosen and paid for by
Customer. The remote communication to the Devices is via any cellular network
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service provider chosen by ATS from time to time. It is Customer's responsibility
to ensure the Device and Product are used where adequate cellular signal is
present. ATS agrees (a) that the System will be operational at all times (seven
(7) days a week and twenty -four (24) hours per day), except in the case of
technical problems, and (b) to use reasonable efforts to repair the System should
it experience technical problems. Customer shall be solely responsible for the
Device and its operation, maintenance, repair and replacement. ATS shall not
be responsible for any portion of the System which is dependent in any manner
upon the services or product of a Third Party Provider, although ATS will make
reasonable efforts to facilitate repairs by that Third Party Provider in the event of
technical problems. ATS shall only be responsible for providing Services subject
to applicable laws and governmental regulations and subject to the limitations of
the System.
4. Cellular Service. ATS shall not be responsible for the quality of or lack of
cellular service provided by any Underlying Carrier.
5. System and Software Updates. Customer hereby acknowledges and
agrees that as algorithms and techniques are developed by ATS, ATS may
update software and that viewing the same Customer Data across different
versions of software may result in different analyses.
6. Customer's Proprietary Information. It is the sole responsibility of the
Customer to take security precautions in protecting its proprietary information.
7. Indemnification for Licensure and Approvals. Customer shall be
responsible for obtaining such regulatory authority licenses and approval as may
be necessary for the provision of the access to the ATS System, Product,
Services. Customer agrees to indemnify and hold ATS harmless against any
and all claims or demands made on ATS or Customer as a result of Customer's
failure to comply regardless of whether such failure was the result of negligence,
gross negligence, willful misconduct, or fraud.
8. Integrity of System. Customer agrees that it shall not in any manner
permit any person, party or entity to have access to the ATS Products or
Services, except as specifically permitted under this Agreement between ATS
and Customer.
9. Taxes or Assessments. Customer shall be responsible for payment of all
applicable taxes or assessments due to local, state, federal, governmental, and
international taxing or regulatory authorities, including income, sales, use, value
added tax, other excise taxes or assessments relating to the Products or
Services. Customer agrees to indemnify and hold ATS harmless against any
and all claims or demands made upon ATS or Customer as a result of
Customer's failure to properly pay any such taxes or assessments regardless of
whether such failure was the result of negligence, gross negligence, willful
misconduct, or fraud.
12. Limitation of Liability. EXCEPT AS REQUIRED BY LAW, ATS AND ITS
DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS (COLLECTIVELY,
THE "ATS GROUP ") WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT
OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR
INABILITY TO USE THE SERVICES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS,
LOSS OF DATA, AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF
THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH
CLAIM IS BASED.
® b
13. Computer System Failures And Data Loss. Each party to this Agreement
will assume the risk of loss associated with loss of data, software or computer
system failure attributable to viruses, worms or other similar components which
may be downloaded during Online Services. This provision shall not apply to
intentional acts which are designed to lead to system failure. Under no
circumstances shall ATS be responsible for any indirect, incidental or
consequential damages.
14. Liability to Others. Without limitation, this Agreement is between
Customer and ATS only, and other customers who may have received Customer
Data shall have no rights or remedies against ATS under this Agreement. The
indemnification provisions of the Agreement shall apply to all claims against ATS
by other ATS customers receiving Customer Data.
15. Default. Customer shall be in default under this Agreement, and ATS
shall have the right to immediately terminate this Agreement, to terminate
Customer's access and use of any Product, the Services, the Devices, the
System, and any other ATS product or device and to disable and rendered
useless to Customer the Product, the Services, the Devices, the System, and
any other ATS product or device, and all without notice and without refund of any
fee paid hereunder, however, all provisions of this Agreement except the license
for access to the ATS System, Product, Services and Device will survive
termination and continue in effect, upon the occurrence of any of the following:
15.1. Customer fails to make payments due pursuant to this Agreement
and the Subscription Agreement;
15.2. Customer fails to pay when due in full any and all amounts owed by
Customer to ATS under any other agreement or for the purchase of
any other ATS product, device or service, this shall include any
reclamation of payment for non - sufficient funds or stop payment
orders;
15.4 Any violations of applicable laws and regulations,
15.5 Customer providing the Services or access to any third parties
without the prior written consent of ATS;
15.6 Any representation or warranty made by Customer herein is
materially false or misleading when delivered;
15.7. Customer makes a general assignment to or for the benefit of
creditors or suspends all or substantially all of its business
operations;
15.8. Bankruptcy, reorganization, involuntary liquidation, receivership, or
other similar proceedings are instituted against Customer and the
same is not fully discharged within thirty (30) days; or
15.9 Failure to provide proof of the undersigned's authority to bind the
Customer in contract prior to access to the ATS System, Product,
Services or Device;
15.10. After notification to Customer of a breach of any provision of this
Agreement or the Subscription Agreement via facsimile and /or
electronic mail from ATS, Customer fails to immediately remedy
such breach. However, nothing contained in this subsection shall
require ATS to provide Customer with any notice of any breach or
default.
16. Remedy Not Exclusive. Notwithstanding any termination of this
Agreement, the rights required or obligations incurred by the parties prior to
termination shall not be affected and each party shall remain liable, unless
waived or indemnified, for any and all damages sustained by the other party by
reason of such termination or by reason of a party's default or breach and each
party shall have and retain unimpaired all pertinent rights and remedies, whether
at law or in equity. All rights and remedies under this Agreement are cumulative,
not exclusive and shall be in addition to all rights and remedies available to either
party at law or in equity.
I
24. DISCLAIMER OF WARRANTY. THE PRODUCTS AND SERVICES ARE
PROVIDED "AS IS" WITH ALL FAULTS. TO THE EXTENT PERMITTED BY
LAW, ATS AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
WARRANTIES THAT THE PRODUCT AND /OR THE SERVICES ARE FREE OF
DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE AND NON -
INFRINGING. CUSTOMER BEARS THE ENTIRE RISK AS TO SELECTING
THE PRODUCT AND THE SERVICES FOR CUSTOMER'S PURPOSES AND
AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT AND THE
SERVICES. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. ATS MAKES NO
WARRANTY, EXPRESSED OR IMPLIED WITH RESPECT TO THE
TRANSMISSION OF SERVICES PROVIDED HEREUNDER AND EXPRESSLY
DISCLAIMS ANY WARRANTY OR MERCHANTABILITY, DESCRIPTION OR
FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
IMPLIED WARRANTIES, SO THIS DISCLAIMER MAY NOT APPLY TO
CUSTOMER.
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