CONTRACT 5646 Professional Services Agreement CLOSED Agreement No. 5646
PROFESSIONAL SERVICES AGREEMENT
101
BETWEEN
THE CITY OF EL SEGUNDO ("CITY") AND
MYSIDEWALK, INC.
This AGREEMENT is entered into this 28th day of January 2019, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and
MYSIDEWALK, INC., a Delaware corporation ("CONSULTANT"). The parties agree as follows:
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 $50,000 per fiscal year 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 Statement of Work, attached as
Exhibit 'A" 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 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. CITY agrees to pay CONSULTANT the annual subscription fee as set forth in
Exhibit"A." Any additional work and customization not explicitly included within Exhibit"A"will be
billed at a rate of$150 per hour.
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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.
6. 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.
B. 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.
7. TERM. The term of this Agreement will be for two (2) years, and will automatically renew, on
an annual basis, on its anniversary date unless otherwise terminated pursuant to Section 14.
8. TIME FOR PERFORMANCE,
A. CONSULTANT will not perform any work under this Agreement until:
L CONSULTANT furnishes proof of insurance as required under Section 21
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.
9. 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"—Statement of Work
B. Exhibit"B" —mySidewalk Privacy Policy
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C. Exhibit"C"—Term of Use— Reports
10. 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.
11. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer
Identification Number.
12. 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.
13. 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.
14. TERMINATION.
A. 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's 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.
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15. 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.
16. 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.
17. 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
court finally awards as a result of such claim. To qualify for such
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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 21, 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.
18. 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.
19. 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 it is
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.
20. 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.
21. 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
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Agreement No. 5646
set forth below:
Tvoe of Insurance Limits
Commercial general liability: $1,000,000
Professional 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 11 85 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. 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."
E. 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 14.
22. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to
use any consultants while performing any portion of this Agreement.
23. INCIDENTAL TASKS. N/A.
24. NOTICES. All communications to either party by the other party will be deemed made when
received by such party at its respective name and address as follows:
City of EI Segundo PSA, Intellectual Property
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If to CONSULTANT: If to CITY:
mySidewalk, Inc. City of EI Segundo Fire Department
804 W. 8th Street 314 Main Street
Kansas City, MO 64015 EI Segundo, CA 90245
Attention: Kyle Cook Attention: Chief Christopher Donovan
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.
25. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and
regulations including, without limitation, CITY's conflict of interest regulations.
26. 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.
27. 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 other party. There
will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under
this Agreement.
28. 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.
29. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and local
laws applicable to this Agreement.
30. ENTIRE AGREEMENT. This Agreement, and its Exhibits, 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) Exhibits to this Agreement. This Agreement will bind
and inure to the benefit of the parties to this Agreement and any subsequent successors and
assigns.
31. 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.
32. 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.
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33. 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.
34. ACCEPTANCE OF ELECTRONIC 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
electronic (pdf) or facsimile transmission. Such electronic or facsimile signature will be treated
in all respects as having the same effect as an original signature.
35. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
36. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
37. 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
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.
38. 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]
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Agreement No. 5646
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
CITY E EGUNDO MYSIDEWALK, INC.
Stephen Hardy
Greg a r, Name, Title
City nag r
Name, Title
TTa
EST:
Taxpayer ID No. 47-5460704
y eaver, Delaware Entity#: C3888395
City Clerk
APP ED AS TO FORM:
Mark D. Hensley
6
City Attorney
APPROVED AS TO TFICHNICAL
SP I S: ^
Charles Mallory,
Director of Infor ation Services
A"��
Insurance Approved by:
//3///q
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EXHIBIT A
Agreement No. 5646
myO I k
304 W. 8th St.
Kansas City,MO
64105
E1 Segundo Fire Department
Fire Performance Dashboard
Statement of Work
mySidewalk,Inc.304 W. 8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
EXHIBIT A
Agreement No. 5646
Overview and Objectives
The El Segundo Fire Department has the need to track industry-standard key performance metrics to
assess department trends, improve response times, and ensure continuous improvement across the
organization. The purpose of this Statement of Work(SOW) is to outline and define the activities that will
be conducted by the mySidewalk team to ensure the highest quality delivery of its Fire Performance
Dashboard.
The main objectives of this project are as follows:
1. Create and maintain the mySidewalk Fire Performance Dashboard as detailed in this SOW.
This Statement of Work will cover the scope of work required to implement and achieve the desired
objectives.
Description of Services and Scope
The following services will be performed by mySidewalk.
This subscription provides access to the mySidewalk Performance Dashboard for your department
created and maintained by mySidewalk. The Dashboard will be configured based on the following
mySidewalk-developed processes and methodologies:
4 Initial customization of header images, department logo, introductory text, station points, station
names, station boundaries, and apparatus names.
4 Incidents will be classified by the following 9 NFIRS incident categories: fire,
overpressure/rupture, EMS/rescue,hazardous conditions, service calls, good intent,false alarm,
weather/natural disaster, special/other
4 Effective response force will be determined by all units dispatched within 60 seconds of call
4 90th percentile calculations will be made using linear interpolation
4 Outlier detection will be calculated using 3x standard deviation
4 Terminology throughout the dashboard will include the following: Alarm Handling, Turnout
Time, First Responder,Effective Response Force, Planning Zones, Response Goals
4 "Planning Zones"will be defined as Census Tracts
4 "Response Goals"will be defined as 60 seconds for Alarm Handling, 80 seconds for Turnout
Time, 240 second for first responder travel time, and 480 seconds for Effective Response Force
All exceptions,additions,and customization not explicitly included within this Statement of Work will be billed at a rate of
$150/hr.
mySidewalk,Inc.304 W. 8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
EXHIBIT A
Agreement No. 5646
Timeline:
Upon execution of the agreement, mySidewalk will utilize access to the Customer's Emergency Reporting
to pull a .csv or excel file of incident data starting January 1, 2014 to the most recent month to begin
construction of the Dashboard. The columns of data required include the following:
4 Incident ID
4 Apparatus ID
Apparatus name
Station ID
-� Shift
4 Incident Latitude
4 Incident Longitude
4 Incident type(NFIRS)
4 Aid given/received
4 Emergency status(emergency vs non emergency)
4 Alarm date time
4 Dispatch date time
4 Enroute date time
4 Arrival date time
Incident data with missing or inaccurate fields will often result in missing, incomplete, or inaccurate
visualizations. A draft of the dashboard will be available for review by the customer within 45 days after a
direct match of calculations is confirmed.
Monthly updates to the Dashboard will not begin until written confirmation from the Customer that all
components are finalized. All monthly updates will be delivered within 6 business days after Customer
delivers updated data on or after the 1 st of each month.
Assumptions:
If mySidewalk integration with Customer's RMS or CAD is required, we require the Customer make
available a System Administrator contact and any applicable credentials. mySidewalk integrates with
Emergency Reporting through account credentials. Before Emergency Reporting implementation,
mySidewalk and EI Segundo to work together to export Firehouse data for any historical analysis. Each
dashboard component is exportable via .csv. All charts, graphs, and maps are exportable as .png. All maps
are exportable as json.
mySidewalk,Inc.304 W.8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
EXHIBIT A
Agreement No. 5646
Investment Summary
Annual Per Stations Total Stations
Subscription
Year 1 $8,500 $4,250 N 2
Year 2 $8,500 $4,250 2
:dee & Payment:
The Customer will be invoiced an annual subscription fee of as detailed under the Investment Summary section
beginning on the effective date of the agreement. The annual rate is fixed for the length of the term at which time
mySidewalk may notify the Customer in writing of a price adjustment. Payment terms for all invoices are Net 45.
ACCEPTED AND AGREED TO BY: MYSIDEWALK,INC. "mySidewalk"
Name: Name:
s i I
Title: Title:
Date: Date:
I t I
Signature: Signature:
Invoice
Email
Address:
All amounts are USD.This is a non-refundable purchase subject only to termination as defined in the terms of use linked below.
Pricing valid through 2/15/2019
By signing this agreement,you are also agreeing to our cl tsa.mvsidcav tlk.ccsnro/rpljy�g7l,i,: and r�y;i, wv79k.coorr(ta rta�s-ted=trac-renal .
Attachment(A) - Performance Dashboard Component Schedule
� affilffl,, Ir s � dpi
Incident Report 1 Month Total incident count Callout Department-wide
mySidewalk,Inc. 304 W. 8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
EXHIBIT A
Agreement No. 5646
1 Month Incident count by type Table Depa,rtnictil-wide
Last 5 Years(January-December)incidents by year by month Stacked Line Chart Department-wide
Last 5 Years YTD Incidents by Type Stacked Bar Chart Department-wide
Last 5 Years YTD Incidents by Station Stacked Bar Chart Depannient-wide
Last 5 Years YTD Incidents by Emergency vs.Non-Emergency Stacked Bar Chart Department-wide
YTD Total Incidents by planning zone with YTD Incident type
breakout filters Map Deparunent-wide
YOY YTD%Change in Incidents by planning zone with previous 3-
year YTD total incident filter Map Department-wide
YTD Total Incidents by Apparatus in order from most to least
incidents Bar Chart Department-wide
Response Report 1 Month 90th Percentile Total Response Time Callout Department-wide
1 Month 90th Percentile Time element breakdown(Alarm handling,
turnout time,first responder travel time,effective response force
travel time) Table Department-wide
Last 5 Years(January-December)90th Percentile Total Time by year
by month Stacked Line Chart Department-wide
Last 5 Years YTD 90th Percentile Time element(Alarm handling,
turnout time,first responder travel time,effective response force
travel timc)breakdown Stacked Bar Chart Depaarttncnt-wide
Last 5 Years YTD 90th Percentile Turnout Time by station Stacked Bar Chart Department-wide
Last 5 Years YTD 90th Percentile first responder Travel Time by
station Stacked Bar Chart Department-wide
Last 5 Years YTD 90th Percentile effective response force Travel
"If uuuuu:by month by station Stacked Bar Chart Department-wide
:11 a i,';Years YTD 90th Percentile Emergency vs.Non-emergency
Total Time Stacked Bar Chart Department-wide
YTD 90th Percentile Total Response Time by Planning Zone with
Last 5 Years YTD Total Response Time Filters Map Department-wide
YTD 90th Percentile Total Response Time by Planning Zone with
Last 5 Years YTD effective response force Total Time Filters Map Department-wide
YTD 90th Percentile Turnout Time by Apparatnsl'Shiil in order froan
shortest to longest turnout time Bar Chart Department-wide
Goals Report 1 Month%of all goals met Callout Department-wide
1 Month%of Alarm Handling,Turnout time,first responder travel
time,effective response force travel time goals met Table Department-wide
Last 5 Years(January-December)%of all Goals Met by Year by
Month Stacked Line Chart Department-wide
Last 5 Years YTD%Alarm Handling,Turnout Tinrc,first responder
Travel Time,effective response force Travel Time goals met Stacked Bar Chart Department-wide
Last 5 Years YTD%of Turnout Time Goals Met by Station Stacked Bar Chart Department-NN ide
Last 5 Years YTD%of first responder Travel Time Goals Met by
Station Stacked Bar Chart Department-wide
Last 5 Years YTD%of effective response force Travel Time Goals
Met by Station Stacked Bar Chart Department-wide
YTD 90th Percentile Total Response Time by Planning Zone with
Last 5 Years YTD Total Response Time Filters Map Department-wide
YTD%Goals Met by Shift/Apparatus in order from most goals met
to least goals met Bar Chart Depazriment-wide
Station Report 1 Month Total incident count Callout individual station
1 Month Incident count by type table Individual station
Last 5 years total incidents by type Line Chart Individual station
mySidewalk,Inc.304 W. 8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
EXHIBIT A
Agreement No. 5646
YTD Incidents by Planning lone with incident type filters Map Individual station
1 Month 90th Percentile Total Response Time Callout Individual station
1 Month 90th Percentile time element breakdown(Alarm handling,
turnout time,first responder travel time,effective response force
travel time) Table Individual station
1 Month 90th Percentile Turnout Time by ShilVApparatus Bar Chart Individual station
Last 5 Years 90th Percentile time element breakdown(Alarm
handling,turnout time,first responder travel time,effective response
force travel tinte)by month Line Chart individual station
Y'I'l:)90th Percentile Total Response Time by Planning Zone with
first responder drive time,effective response force drive time,and
total incident filters Map individual station
1 Month Percent total response goals met Callout Individual station
1 Month Percent Turnout time,first responder travel time,effective
response force travel time goals met Table Individual station
Last 5 Years 90th%goals met breakdown(turnout time„first
responder travel time,effective response force travel time)by month Line Chart Individual station
mySidewalk,Inc.304 W. 8th St.,Kansas City,MO 64105 1 finance@mysidewalk.com
Agreement No. 5646
EXHIBIT B
MYSIDEWALK, INC MYSIDEWALK PRIVACY
LIC
In General
This Privacy Policy sets forth the nature, purpose, use and sharing of any information that identifies or
can be used to identify you ("Personal Information") that we receive when you use our Services (as
defined in our Terms of Use,accessible This Privacy Policy applies
only to those websites,services and applications included within"Services" and does not govern privacy
practices associated with offline activities,websites other than the Site, or practices of third parties that
we do not own or control,such as our partners or advertisers. Please note that, unless we define a term
in this Privacy Policy,all capitalized words used in this Privacy Policy have the same meanings as in our
Terms of Use.
Changes in Privacy Policy
Any information that we collect is subject to the privacy policy in effect at the time such information is
collected.mySidewalk may change this Privacy Policy from time to time at its sole discretion. If we make
any material changes to this Privacy Policy, we'll notify you of such changes by posting them on the
Services or by sending you an email or other notification, and we'll indicate when such changes will
become effective.You will be deemed to have been made aware of,and will be subject to,the changes to
the Privacy Policy after such changes have been posted. If as the result of such changes you want to alter
some of the ways in which mySidewalk is allowed to use your Personal Information, you can do so by
following the procedure described in the section entitled "Updating Your Personal Information and
Privacy Preferences"so long as that option is made available to you.
Collection of Personal Information
During the registration process,you will be required to provide us with your name and email address.We
will follow up by sending you an email to verify that you are the owner of the email address.We will use
your email address to identify you in our system.You can choose to provide us with additional optional
Personal Information in your profile, including your address. If you do not provide the mandatory data
required at registration, you will not be able to use the Services. Similarly, if you wish to delete your
information (pursuant to the mechanism set forth in "Updating Your Personal Information and Privacy
Preferences and Reporting Privacy Complaints") that is mandatory,you will no longer be able to use the
Services.
If you use your Facebook,LinkedIn,Google+,or other social networking site ("SNS") account information
to sign in to mySidewalk, we will collect and store your SNS user ID. If you connect your mySidewalk
account with your SNS account,we ask for your permission to collect certain information from your SNS
account(such as information from your SNS profile).
One of the primary reasons people use our Services is to share content with others. Examples include
when you submit an idea,upload or take a photo,upload or record a video,share a link,make a comment,
or send someone a message. This information is not considered Personal Information protected under
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EXHIBIT B
this Privacy Policy. If you do not want us to store metadata associated with Content you share via the
Services,please remove the metadata before uploading the content.
mySidewalk may also collect certain information about your computer to facilitate, evaluate and verify
your use of the Services. For example, we may log environmental variables, such as browser type,
operating system, CPU speed, referring or exit webpages, click patterns, Session ID (a unique identifier
assigned to the browser in connection to the Site), and your Internet Protocol (IP) address. mySidewalk
also uses such information to measure traffic patterns on the Site.We do not match such information with
Personal Information held about you by mySidewalk unless we have your consent, except as otherwise
described in this Privacy Policy.
By using the Services, you agree and acknowledge that with respect to certain activities, the collection,
transfer, storage, and processing of your information may be undertaken by trusted third party vendors
or agents of mySidewalk such as web hosting providers and mail and email service providers, to help
facilitate mySidewalk in providing certain functions.
In order to reduce errors in our database,authenticate our users,prevent fraud and abuse of our Services,
and to provide more consistent, relevant experiences to our users, we may on occasion supplement or
correct the Personal Information you submit to us and your IP address with information in our other
databases or information from third party sources.
In some cases we collect and store information about where you are located,such as by converting your
IP address into a rough geolocation. We may use location information to improve and personalize our
Services for you.
How Your Personal Information Is Used
In general,mySidewalk collects and uses your information in order to record,support and facilitate your
participation in our Services, as well as to prevent fraud and abuse. While the input, feedback and
suggestions you provide will be displayed on the Site for viewing by the general public,we will not disclose
your Personal Information to either Sponsor or to any other third party, except as provided herein.
Specifically,mySidewalk uses your Personal Information in the following manner:
1. Communications. We will use email as our primary means to inform you of important service,
promotional,and system-related announcements.
2. In the Services.
a. Contributions. The Services offer opportunities for you to vote and comment on Content
submitted by others, engage in dialogue, share information, and submit original content. When
you make a contribution to the Services,you will be identified by your first and last name as the
author of that contribution. Other than the display of your first and last name, and except as
otherwise provided herein,in using the Services,you are not required to provide or publicize any
Personal Information in connection with any Content you post to the Services or any actions you
take via the Services.Please note that any Content you post to the Services may be available to all
persons accessing the Site and so please use your good judgment before posting.The information
you share may be read,collected or used by others for any purpose. Neither mySidewalk nor the
Sponsor is responsible for the Personal Information or any other information you elect to submit
to the Site,or the use of such information.If you do not wish for your information to be posted or
distributed in this manner,you should not contribute to the Services.
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EXHIBIT B
b. Public Profile. When you register, we will create a public profile for you. You may, but are not
required, to include Personal Information in your public profile.Any contributions you make to
your public profile may be accessed,viewed and used by the public.
c. Site Statistics. mySidewalk may collect information about use of Services, such as how many
users/visitors we receive daily, Site pages visited, and IP address of users' computers. This
information is generally collected in aggregate form, without identifying any user individually,
although IP addresses and session ID in relation to downloads may be tracked as part of
mySidewalk's fraud prevention efforts. Other exceptions to this, where an individual may be
identified individually,are noted in this Privacy Policy.
3. With Third Parties.
a. Statistics.Occasionally we share anonymous,non-personal,aggregate information about our user
base with our partners and we may publish these aggregate usage statistics through our Services
because they may be of interest to our users. Except as otherwise provided herein,we do not tie
this shared or published data to Personal Information.
b. Providers. mySidewalk recognizes and appreciates the importance of responsible use of
information collected via our Services.mySidewalk will respect your legal rights regarding access
to, and correction and deletion of, your Personal Information. mySidewalk may communicate
information to you regarding products, services, and special offers available from mySidewalk
unless you have opted not to receive such communications or such communications are
prohibited by law,although in some cases we may find it necessary to continue to communicate
with you regarding your use of the Services. Except in the particular circumstances described in
this Privacy Policy,mySidewalk will not provide your name to other companies or organizations
without your consent. If you wish to discontinue receipt of communications from our selected
Providers,please contact those third parties directly to update your preferences.
c. Third Party Service Providers. We may engage third party service providers to work with us to
administer and provide the Services, such as those discussed in the "Collection of Personal
Information" section. These third-party services providers have access to your Personal
Information only for the purpose of performing services on our behalf.
d. In Connection with Business Transactions. Information that we collect from our users,including
Personal Information, is considered to be a business asset.As a result, if mySidewalk goes out of
business or enter bankruptcy or sells assets or interests to, or is acquired by or merged with,
another person or entity,you agree that mySidewalk may disclose or provide to the third-party
acquirer all information (including your Personal Information) in our possession without
obtaining your further consent. mySidewalk may or may not provide notice of such sales,
acquisitions,or mergers through the Services.
e. Information We Disclose With Your Consent or at Your Request. We will share your Personal
Information with third-party sites or platforms, such as social networking sites, if you have
expressly requested that we do so.
4. Sponsors; Governmental Entities.
a. General.We will provide certain Personal Information to the Sponsor.Specifically,we will provide
the Sponsor with the following information under the following circumstances: (a) a summary of
the demographic information related to the Services'user base; (b) aggregate reports containing
information about users'ages,locations and activities on the Site; and (c) other related data.
b. Public Records. If the Sponsor is a government entity or other public body,then representatives
of that government entity or public body will communicate via the Services. Consequently, any
communication via the Services (whether by a government representative, you, or the general
public) may be considered a "public record" in the jurisdiction of the Sponsor, and, as such, may
be subject to monitoring and retention by the Sponsor,and disclosure to third parties.
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Agreement No. 5646
EXHIBIT B
5. Other/Legal. There are other instances in which mySidewalk may divulge your Personal
Information, such as when required by law, regulation, or litigation. We may also disclose your
Personal Information if we determine that such disclosure should be made for reasons of national
security,law enforcement,or other issues of public importance.
"tracking, Use of Cookies, Web Beacons and Similar
Devices
In order to improve the Services and provide more convenient, relevant experiences to you,we and our
agents may use "cookies," "web beacons," and similar devices to track your activities.A cookie is a small
amount of data that is transferred to your browser by a web server and can only be read by the server
that gave it to you. It functions as your identification card and enables mySidewalk to record your
passwords and preferences. It cannot be executed as code or deliver viruses. A web beacon is a small
transparent gif image that is embedded in an HTML page or email used to track when the page or email
has been viewed.Most browsers are initially set to accept cookies.You can set your browser to notify you
when you receive a cookie, giving you the chance to decide whether or not to accept it. (For some web
pages that require an authorization, cookies are not optional. Users choosing not to accept cookies or
similar devices will probably not be able to access those pages.)
mySidewalk may hire other companies to place our banner ads on other websites. Such companies
perform tracking and reporting activities on ads served and user reaction ("Third-party Advertisement
Servers"). They do not collect any information other than IP addresses and behaviors associated with
those IP addresses on our behalf, and we do not give any Personal Information to them. Third-party
Advertisement Servers are subject to their own privacy policies.
Links to Other Sites
Our Services may contain links to other websites or services at which Personal Information is collected.
Additionally,you may be able to access to the Services from other websites or services on which you will
be required to provide Personal Information. In such instances,we will clearly identify situations where
you are accessing or linking to or from these other sites or services through or to our Services.These third
party websites or services may choose to collect your Personal Information as they deem appropriate.
Our Privacy Policy does not apply to such websites or services and we and the Sponsor are not responsible
for or in control of how such third parties collect, disclose or otherwise use your Personal Information.
Such collection and use of your Personal Information will be governed by each applicable third party's
own privacy policy. That privacy policy should identify the third party that is collecting your Personal
Information.To protect your information we recommend that you carefully review the privacy policies of
other websites and services that you access.
Our Policy Toward Children
Our Services are intended for adult audiences only, and mySidewalk does not knowingly collect any
Personal Information from anyone under 13 years of age. If you are under age 13,please do not attempt
to register for the Services or provide any Personal Information about yourself to us. If we learn that we
have collected Personal Information from a child under age 13,we will delete that information as quickly
as possible.If you believe that we might have any Personal Information from a child under the age of 13,
please contact us immediately.
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Agreement No. 5646
EXHIBIT B
Reporting Suspected Piracy
We may ask you to provide information of others such as when reporting suspected piracy. In this
instance, we will ask for the person's or company's name and contact information so that we may
investigate. Personal Information supplied in these instances will only be used for the purpose being
submitted.
The Security of Your Information
We take reasonable measures to protect the information that we collect from or about you(including your
Personal Information) from unauthorized access, use or disclosure. Please be aware, however, that no
method of transmitting information over the Internet or storing information is completely secure.
Accordingly,we cannot guarantee the absolute security of any information.
Updating Your Personal Information and Privacy
Preferences and Reporting Privacy Complaints
You have the right to access, correct and delete inaccuracies in your Personal Information and privacy
preferences (such as whether you wish to receive promotional communications) at any time.If you wish
to access and correct your Personal Information and privacy preferences, or if you believe that
mySidewalk has not complied with this Privacy Policy with respect to your Personal Information,you may
write to mySidewalk at the following address:
mySidewalk,Inc.
304 W 8th St.
Kansas City,MO 64105
Attn:Chief Executive Officer
In your correspondence, please indicate with as much detail as possible where in the Services you
provided your Personal Information, or any details surrounding your belief that we have not complied
with our Privacy Policy with respect to your Personal Information. You may expect a response from us
within thirty(30) days.
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Agreement No. 5646
EXHIBIT C
TERMS OF USE - REPORTS
This Subscription Agreement("Agreement") is made and entered into by and between mySidewalk, Inc.,
a Delaware corporation ("Company"),and the signor of this agreement("Customer"). The parties hereby
agree as follows:
1,
1. SUBSCRIPTION. Company hereby grants a subscription to, and Customer hereby
subscribes to, Company's "Reports" solution (the "Solution,") solely for use in creating
and sharing custom data reports. The subscription granted does not give Customer the
right to rent, lease, or provide access to the Solution on a time-share or service bureau
basis.
2. DATA.Customer acknowledges that a Report will contain raw or customized data that is
maintained by Company and does not include any of Customer's data (the "Solution
Data"), as well as (in some instances) data that Customer has provided to Company(the
"Customer Data"). Customer further acknowledges that it has no ownership rights in the
Solution Data, and that Company owns all right,title and interest in and to the Solution,
as such may be modified from time to time. Company hereby grants Customer a non-
exclusive, non-sublicensable, non-transferable license to use, reproduce and share the
Solution Data in the form contained in the Reports. Customer represents and warrants
that it has all rights, consents,and authority necessary for Customer's collection,use and
processing of the Customer Data. Customer acknowledges that Company will not monitor
or police Customer's use or sharing of the Reports,and Company will not be responsible
or liable for such use or sharing.Customer shall comply with all applicable laws,rules and
regulations in exercising its rights and performing its obligations under this Agreement.
3. CUSTOMER OBLIGATIONS. Customer shall, upon request by Company: (i) permit
Company to issue a press release highlighting Customer's purchase or use of the Solution;
(ii) participate in targeted press and analyst interviews highlighting the benefits of the
Solution;and/or(iii)participate in customer case studies developed and published by,or
on behalf of, Company. Customer grants Company a non-exclusive right to use the
Customer name,trademarks,and logos(collectively,the"Customer Marks")in Company's
marketing materials,provided that such use is in accordance with Customer's trademark
and logo use guidelines that Customer provides to Company. Customer's use of the
Solution is dependent upon access to telecommunications and Internet services.
Customer shall be solely responsible for acquiring and maintaining all
telecommunications and Internet services and other hardware and software required to
access and use the Solution.Company shall not be responsible for any loss or corruption
of data, lost communications, or any other loss or damage of any kind arising from any
such telecommunications and Internet services.
4. CONFIDENTIALITY. Each party may have access to the other party's Confidential
Information. "Confidential Information" means, without limitation, nonpublic financial
information, pricing, business plans, techniques, methods, processes, and the results of
any performance tests of the Solution. Neither party shall disclose the other party's
Confidential Information except to such party's advisors, representatives, attorneys,
investors (and prospective investors), and prospective acquirers (collectively
"Representatives") as have a reasonable need to know such information. Confidential
Information of a party shall not include information that: (a) is or becomes publicly
available through no act or omission of the other (receiving) party; (b) was in the
receiving party's lawful possession prior to the disclosure; (c) is rightfully disclosed to
the receiving party by a third party without restriction on disclosure; or (d) is
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Agreement No. 5646
EXHIBIT C
independently developed by the receiving party,which independent development can be
shown by written evidence. Except to the extent expressly provided for in this
Agreement, during the Term and for a period of five (5) years after expiration or
termination of this Agreement, neither party shall make the other's Confidential
Information available to any third party or use the other's Confidential Information for
any purposes other than exercising its rights and performing its obligations under this
Agreement.Each party will be responsible to the other for any breach of this Section 3 by
its employees or Representatives. Confidential Information of a party may be disclosed
by the other party as required by any governmental agency or authority, provided that
before disclosing such information the party required to disclose same must provide the
other party with sufficient advance notice of the agency's or authority's request to enable
the non-disclosing party to attempt to limit such disclosure.
5. WARRANTY DISCLAIMER. THE SOLUTION AND THE REPORTS ARE PROVIDED "AS
IS." COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES,EXPRESS OR IMPLIED,
REGARDING THE SOLUTION OR THE REPORTS,INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. COMPANY DOES NOT WARRANT THAT THE SOLUTION OR THE REPORTS
WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE
CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE
LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
6. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and
shall continue for the period as defined by the customer contract (the "Term"), unless
terminated earlier as provided in this Agreement. Either party may terminate this
Agreement upon written notice if the other party materially breaches this Agreement and
fails to correct the breach within thirty (30) days following written notice specifying the
breach;provided that the cure period for any default with respect to payment shall be five
(5)business days.Subject to Title 11 of the United States Code,if Customer becomes or is
declared insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or
makes an assignment for the benefit of any creditor, then Company may terminate this
Agreement upon thirty (30) days'written notice. Upon expiration or termination of this
Agreement, each party shall return and make no further use of any Confidential
Information, materials, or other items (and all copies thereof) belonging to the other
party. The rights and obligations of Company and Customer contained in Section 2(a)
(pertaining to ownership),4 (Confidentiality), 5 (Warranty Disclaimer), 6 (pertaining to
post-termination rights and obligations), 7 (Survival),8 (Indemnification),9 (Limitation
of Liability), and 10 (General) shall survive any expiration or termination of this
Agreement,to the extent applicable.
7. INDEMNIFICATION.Each party shall defend (or settle),indemnify and hold harmless the
other party,its officers,directors and employees,from and against any third-party claims,
including court costs and reasonable attorneys'fees,arising out of or in connection with
any breach by the indemnifying party of this Agreement. The indemnifying party's
obligations are contingent upon: (i) the other party providing it with prompt written
notice of such claim; (ii) the other party providing reasonable cooperation, at the
indemnifying party's expense, in the defense and settlement of such claim; and (iii) its
having sole authority to defend or settle such claim; provided, however, that no
settlement or compromise that(y) imposes any liability or obligation on the indemnified
party, or (z) does not contain an unconditional written release of the indemnified party
from all liability in respect of the claim (in form and substance reasonably satisfactory to
the indemnified party), shall be made without the indemnified party's prior written
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Agreement No. 5646
EXHIBIT C
consent.
8. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF
SECTIONS 1 or 4,IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INCIDENTAL,SPECIAL,EXEMPLARY OR CONSEQUENTIAL DAMAGES,OR COST
OF SUBSTITUTE SERVICES,WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES,AND WHETHER ANY CLAIM FOR RECOVERY IS BASED
ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY TO
CUSTOMER IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL MONTHLY
FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PROCEEDING THE DATE ON
WHICH SUCH AGGREGATE LIABILITY IS CALCULATED,REGARDLESS OF THE FORM OR
THEORY OF THE CLAIM OR ACTION.
9. GENERAL.This Agreement shall be governed by the laws of the State of Nebraska,without
regard to its conflict of law provisions. Any legal action or proceeding relating to this
Agreement shall be brought exclusively in the state or federal courts located in Douglas
County, Nebraska.The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach. All notices,
including notices of address change,required to be sent hereunder shall be in writing and
shall be sent to the addresses set forth below or delivered in person.The notices shall be
deemed to have been given upon: (a) the date actually delivered in person; (b) the day
after the date sent by overnight courier; or (c) three (3) days following the date such
notice was mailed by first class mail. Notices may be confirmed by email or fax.
If to Company:
304 W 8th St.
Kansas City,MO 64105
Attention: Stephen Hardy
Telephone No.: 816.256.2002
Email: f1nanceRznysic1ewaIk.cQm
In the event any provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect. Nothing in
this Agreement shall be construed to create a partnership, joint venture or agency
relationship between the parties. This Agreement, together with the exhibits attached
hereto,constitutes the complete and exclusive agreement between the parties concerning
its subject matter and supersedes all prior or contemporaneous agreements or
understandings, written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a duly
authorized representative of each party. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other remedies under this
Agreement or otherwise.
10. FORCE MAJEURE.Neither party shall be liable hereunder by reason of any failure or delay
in the performance of its obligations hereunder (except for the payment of money) on
account of events beyond the reasonable control of such party, which may include
without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires,
flood, storm, explosions, acts of God, war, terrorism, governmental action, labor
conditions,earthquakes and material shortages(each a"Force Majeure Event").Upon the
occurrence of a Force Majeure Event,the non-performing party will be excused from any
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Agreement No. 5646
EXHIBIT C
further performance of its obligations effected by the Force Majeure Event for so long as
the event continues and such party continues to use commercially reasonable efforts to
resume performance.
11. ASSIGNMENT/SUCCESSORS. Neither party may assign or transfer this Agreement, in
whole or in part, without the other party's written consent except that Company may
assign or transfer this Agreement in connection with a Change of Control of Company(as
defined below)without consent."Change of Control"means,with respect to Company:(a)
the direct or indirect acquisition of either (i) the majority of voting equity interests of
Company or (ii) all or substantially all of the assets of Company, by another entity in a
single transaction or a series of transactions; or(b)the merger of Company with another
entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of
the successors and permitted assigns of the parties.
12. EQUITABLE RELIEF. Each party acknowledges that a breach by the other party of any
confidentiality or proprietary rights provision of this Agreement may cause the non-
breaching party irreparable damage, for which the award of damages would not be
adequate compensation. Consequently,the non-breaching party may institute an action
to enjoin the breaching party from any and all acts in violation of those provisions,which
remedy shall be cumulative and not exclusive, and a party may seek the entry of an
injunction enjoining any breach or threatened breach of those provisions, in addition to
any other relief to which the non-breaching party may be entitled at law or in equity.
13. COUNTERPARTS. This Agreement may be executed in counterparts, each of shall
constitute an original,and all of which shall constitute one and the same instrument.
9