Resolution No. 2012-086RESOLUTION NO. 2012-86
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
SOFTWARE LICENSE AGREEMENT BY AND BETWEEN THE CITY
OF VERNON AND COOPER NOTIFICATION, INC.,. FOR THE
USE OF AN ELECTRONIC NOTIFICATION SYSTEM
WHEREAS, the City of Vernon ("City") desires to implement
a new electronic system to provide emergency and informational
notifications in the form of emails, text messages, social media
feeds, phone calls, and faxes (the "Servicesff)� and
WHEREAS, the Director of Light & Power has determined that
Cooper Notification, Inc. ("Cooper") is qualified and capable of
provid ing the Services; and
WHEREAS, by memorandum dated may 15, 2012, the Director of
Light & Power has recommended that the City execute a software license
agreement (the."Agreement") with Cooper, for a period of five years,
for the use of its electronic notification system; and
WHEREAS, the City Councilof the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into the agreement with Cooper to expand the
notification services provided to business and residential
communities.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: . The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Software License Agreement (the "Agreementff) with Cooper
Notification, Inc., a copy of which is attached hereto as Exhibit A.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for,
and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
instructs the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein approved or authorized.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send a fully
executed Agreement to:
Cooper Notification, Inc.
Attn. David Lowrey
273 Branchport Avenue
Long Branch, NJ 07740
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SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of
Resolutions of the Council of this City.
APPROVED AND ADOPTED this 5 th day of June, 2012.
�j
Name: William J. Davis
Title:,�4� / mayor Pro-Tem
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STATE OF CALIFORNIA
) ss
COUNTY OF LOS ANGELES
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2012-86, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Tuesday, June 5, 2012, and thereafter was duly signed by the
Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this I day of June, 2012, at Vernon, California.
(SEAL)
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EXHIBIT A
SOFTWARE LICENSE AGREEMENT
THIS SciFrwARE LICENSE AGREEMENT (the "Agreement) is made on June 5 , 2012 (the "Effective Date), by and between Cooper Notification, Inc., a Delaware
Corporation authorized to do business in Commonwealth of Virginia. with its principal offices located at 103 W Broad Street, Suite 500, Church Falls, VA, 22046 (Tooper
Notification'), and the City of Vernon, (the "Customer):
CUSTOMER HAS READ AND AGREES TO BE LEGALLY BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS (INCLUDING THE ATIFACHMENTS AND
APPENDICES THERETO), ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT. NOTWITHSTANDING ANY FAILURE OF CUSTOMER OR COOPER
NOTIFICATION TO TIMELY EXECUTE THIS AGREEMENT PRIOR TO ACCEPTANCE ANDIOR USE OF THE LICENSED PRODUCT, CUSTOMER EXPRESSLY
ACKNOWLEDGES AND AGREES THAT CUSTOMER'S VOLUNTARY ACCEPTANCE AND COMMENCING IMPLEMENTATION OF THE LICENSED PRODUCT SHALL BE
DEEMED FULL AND VOLUNTARY ACCEPTANCE OF AND AGREEMENT BY CUSTOMER WITH ALL THE TERMS OF THIS AGREEMENT. BINDING ON THE CUSTOMER IN
ACCORDANCE WITH THE TERMS HEREOF EFFECTIVE AS OF THE EARLIEST DATE OF SUCH ACCEPTANCE OR USE.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authodzed representatives.
COOPER NOTIFICATION, INC.
By:
Name: David Lowrey
Title: Vice President Finance
Date: Z-
By:
Name: Scott Hear�
Title: President
Date: -5/7—#//Z-
A. Definitions.
CITY OF VERNON
By:
Name: William_jDay.is
Title: Mayor Pro—Tem
Date:
By:
Name: Willard G. Yamaguchi
Title: City Clerk APPROVED AS TO FORM:
Date:
TERMS AND CONDITIONS
All capitalized terms used in this Agreement or in the Attachment or Appendixes to this
Agreement shall have the respective meanings ascribed to them in this Agreement or
in the glossary set forth in Attachment 1 hereto. All capitalized terms used in this
Agreement, unless indicated otherwise, iIrIclucle all derivative forms and variations of
the terms.
B. Grant and Scope of License
1. Subject to the terms and conditions of this Agreement, Cooper Notification hereby
grants Customer a non-exclusive, non -transferable license to (i) Run the software
product(s) identified in Appendix , (the "Product) as well as any Updates provided by
Cooper Notilication on Customers server, and (it) use the related documentation in
connection with Customer's authorized use of the Product. (The Product, any Updates
thereto, and the related documentation, are collectively referred to in this Agreement as
the "Licensed Product'.)
2. "Customer's Enterprise" means the Customer specifically named above, but
expressly excludes any Customer Affiliates. The Licensed Product may only be used
within Customers Enterprise in accordance with Customers authorized use as defined
in Section B3 on an application service provider C'ASP) basis.
3. Authorized Use. In consideration of the License Fees payable hereunder,
Customer may send notification(s) using the Licensed Product only to the size of the
licensed recipient population identified in Appendix A, Section C, Customer may
authorize only those individuals to send notification(s) using the Licensed Product who
are: (1) part of Customers Enterpiise, or (2) acting on behalf of Customer's Enterprise
and carrying out the purpose of Customer's Enterprise.
In no event shall any message(s) be transmitted for the benefit of a third pailly by
Customer or an outside entity using Customers Licensed Product. Any other use of
the Licensed Product is prohibited.
Any expansion of or addition to the size of Customer's licensed recipient population
shall require payment of additional License Fees and where applicable, Support Fees
in accordance with Section C below.
Willard G. Yamaguchi,
Chief Deputy City Attorney
4. As between the parties. all rights, title and interest in and to the Licensed Product
(and any derivative works thereto) and all underlying Intellectual Properly Rights
thereto, are and at all times will be, the sole and exclusive properly of Cooper
Notification or its licensors, as the case may be. The Licensed Product may not be
used for the benefit of any third parlies not aulthorized herein, including Without
limitation, in an outsourcing, timesharing, or ASP arrangement, or in the operallon of a
service bureau. Except as expressly set fodh in this Agreement, Customer acquires no
rights in or to the Licensed Product and Customer shall not use the Licensed Product
other than as specilically set forth in this Agreement.
5. Customer may make a reasonable number of copies of the Licensed Product for
bona fide back up purposes only. All such copies are subject to the terms and
conditions of this Agreement.
6. Customer shall not (and shall not permit any other party to) translate, decompile,
reverse engineer, merge, adapt or modify the Licensed Product or any Updates in any
way, and no derivative work may be created therefrom. In addition, Customer shall not
(and shall not permit any other party to) avoid, circumvent, or disable any security
device, procedure, protocol, or mechanism that Cooper Notification may include,
require or establish with respect to the Licensed Product.
7. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other
proprietary rights notice placed by Cooper Notification on or in the Licensed Product,
and shall ensure that all such notices are reproduced on all copies of the Licensed
Product.
8. All rights not expressly granted in this Agreement are reserved to Cooper
Notification.
C. License and Support Fees
1. Customer agrees to pay Cooper Notification or the contractor or reseller supplying
the Licensed Product the License Fees for the Licensed Product in the amounts as set
forth in Appendix A. Section C, (the "License Fees.") For Support Services, Customer
agrees to pay Cooper Notification or the contractor or reseller supplying the Licensed
Product the fees provided under Section Gt below (the "Support Fees?), in the
amounts and according to the schedule set forth in Appendix A. Section . All License
Fees and Support Fees for the Licensed Product and Support Services are due and
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payable within Thirty (30) days of the date of invoice. Any additional and/or
subsequent License Fees and Support Fees are due and payable within thirty (30)
days of the dale of 0, tomers receipt of invoice. The invoice for the first year charges
will be raised on receipt of order and will be due within thirty (30) days of the invoice
date. Renewal / Sulpipoi1 fees are due prior to the renewal date.
2. All License Fees and Support Fees are exclusive of all taxes. Customer is
responsible for payment of state or local sales or use taxes and state or local property
or excise taxes associated with Customers licensing, possession, or use of the
Licensed Product orany related services, (otherthan income taxes payable byCooper
Notification.)
D. Confidentiality
1, Each party agrees to secure and protect the Confidential Information of the other
using at least as great a degree of care as it uses to protect own confidential
information of a similar nature, but in no event less than reasonable care. Each party
agrees to hold the Confidential Information of the other party in confidence and not
disclose it to third parties. Neither party may use Confidential Information in any way,
commercially or otherwise, except in performance of its obligations under this
Agreement.
2. Notwithstanding Section D(1). Confidential Information of a party shall not include
information which: (1) is. as of the time of its disclosure or thereafter becomes part of
the public domain without the fault of the receiving party; (ii) was rightfully known to the
receiving party without obligation of confidentiality at the time of its disclosure; (III) is
independently developed by the receiving party without the use of the disclosing party's
Confidential Information: or (iv) is subsequently learned from a third party that has the
right to disclose the Confidential Information and is not under a confidentiality obligation
to the disclosing party. A party may disclose Confidential Information that is required to
be disclosed pursuant to a duly authorized subpoena, court order, or government
authority or that is required to be disclosed under the United States Freedom of
Information Act, provided that the party subject to same provides prompt written notice
to the other party prior to such disclosure, enabling such other party to seek a
protective order or other appropriate remedy.
E. Term and Termination
1. The term of the License granted in Section BI shall extend until terminated as
otherwise provided herein.
2. The term for the Standard Maintenance and Support Services set forth in Appendix
A. Section 0 shall be deemed to have commenced on the Effective Date and shall
continue for a pencid of 5 years ("Maintenance Term") unless earlier terminated
pursuant to the terms of this Agreement, or if selected by Customer, as othermse
provided in Appendix B, Enhanced Maintenance and Support Services.
Notwithstanding any failure of Customer or Cooper Notification to timely execute this
Agreement prior to acceptance and/or use of the Licensed Product, Customer
expressly acknowledges and agrees that Customers voluntary acceptance and
commencing implementation of the Licensed Product shall be deemed full and
voluntary acceptance of and agreement by Customer with the terms of this Agreement,
binding on the Customer in accordance with the fauna hereof effective as of the earliest
date of such acceptance or use.
3. In accordance with applicable regulations. either party may terminate this Agreement
with written notice if the other party fails to comply with any material term or condition of
this Agreement and fails to remedy such breach within thirty (30) days of receipt of
written notice of such breach.
4. In addition to the foregoing, either party may terminate this Agreement if the other
party makes a general assignment for (he benefh of creditors, files a voluntary petition
of bankruptcy, suffers or permits the appointment of a receiver for its business or
assets, becomes subject to any proceedings under any bankruptcy law, or has
liquidated its business voluntarily or otherwise, and the same has not been discharged
or terminated within forty-five (45) days.
5. In addition, Cooper Notiffication may terminate this Agreement at any time for any
reason upon thirty (30) days written notice to Customer, After one year from the
Effective Date, Customer may terminate this Agreement for any reason upon thirty (30)
days written notice to Cooper Notification. In the event Cooper Notification, within the
first year from the Effective Dale, terminates this Agreement pursuant to this Section
E5, Cooper Notification shall promptly refund 10 Customer a pro-raled portion of the
License Fees paid by Customer for the first period, and a pro -rated portion of any pre-
paid Support Fees based upon the unexpired period of the Maintenance Term. In
addition, in the event either party terminates this Agreement pursuant to this Section E5
after the first year, Cooper Notilication shall promptly refund to Customer a pro -rated
portion of the License Fees paid by Customer, and a pro -rated portion of any pre -paid
Support Fees based upon (he unexpired period of the Maintenance Term.
6. Immediately upon termination of this Agreement, the Customer shall: (1) pay all
amounts owed to Cooper Notification; (it) cease all use of the Licensed Product; (iii)
return to Cooper Notification all copies of the Licensed Product and any other
Confidential Information or proprietary materials of Cooper Notification in its possession
or control or in escrow; and IN) certify in writing Cuslomer's compliance with this
Section E6.
I Warranties and Discialmerm Limitation of Liability; Indemnification
1. Cooper Notification warrants that it has the full authority to grant the fights granted to
Customer herein. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY,
COOPER NOTIFICATION DISCLAIMS ANY AND ALL WARRANTIES WITH
RESPECT TO THE LICENSED PRODUCTS AND UPDATES, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY.
THE LICENSED PRODUCTS AND UPDATES ARE PROVIDED 'AS IS" AND WITH
ALL FAULTS, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT IT
ASSUMES ALL RISKS OF THE USE, QUALITY. AND PERFORMANCE THEREOF.
2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL. SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE,
OR COVER DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS,
REVENUE, DATA, OR USE. INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES (PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
APPLY WITH RESPECT TO DAMAGES FOR BODILY INJURY OR DEATH,
DAMAGES FOR BREACH OF SECTION D, OR DAMAGES FOR INFRINGEMENT
PURSUANT TO SECTION F(6)). IN ANY EVENT, COOPER NOTIFICATION'S TOTAL
AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR
ANY REASON SHALL BE LIMITED TO DIRECT DAMAGES UP TO THE TOTAL
AMOUNT OF LICENSE FEES PAID BY CUSTOMER TO COOPER NOTIFICATION
HEREUNDER DURING THE TERM. THE FOREGOING LIMITATIONS APPLY TO
ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF
CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND
OTHER TORTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE
LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER
LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW OR
OTHERWISE. LIABIL17Y FOR DAMAGES SHALL BE LIMITED AND EXCLUDED,
EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS
OF ITS ESSENTIAL PURPOSE.
3. Customer shall promptly notify Cooper Notification in writing prior to adding to
or expanding the size of Customer's licensed recipient population beyond that
indicated in Appendix A, Section C. Customer shall keep records relating to the
Licensed Product and its use. These records must be sufficient to allow Cooper
Notification to verify compliance with Customers obligations under this
Agreement. Cooper Notification has the right to review such records, upon
reasonable notice to Customer. for as long as Customer's license under Section
BI shall extend and for a period of two (2) years thereafter. If any such review
discloses use of the Licensed Product in violation of the terms of this Agreement,
upon written notice from Cooper Notification, Customer shall either immediately (1)
cease its use which is in violation of the terms of this Agreement and (b) pay to
Cooper Notification any and all fees and/or other amounts required to place
Customer in compliance with the terms of this Agreement commencing from the
date of the violation.
4. Cooper Notification agrees to indemnify and defend Customer from and against any
action, claim, demand, or liability, including reasonable attorneys fees and costs,
arising from or relating to a claim that the Licensed Product infringes upon the copyright
of a third party. If the Licensed Product is held by a court of competent jurisdiction to
infringe a third party copyright, or if in Cooper Notification's opinion, such a claim of
copyright infringement is likely to occur, Cooper Notification may. at its sole option and
expense: (i) procure for Customer the right to continue using the Licensed Product; or
(it) replace or modify the Licensed Product so that it becomes non -infringing as long as
functionality is not materially and adversely affected, or III) refund to Customer a
portion of the License Fee paid by Customer and accept Customers return of the
Licensed Product and termination of this Agreement. THIS SECTION F (4) STATES
COOPER NOTIFICATIOMS ENTIRE LIABILITY AND OBLIGATION, AND
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CUSTOMER'S EXCLUSIVE REMEDY. FOR INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS.
2. Modifications of this Agreement shall be binding only it made in writing and signed
by authorized representatives of both parties.
5. Cooper Notification shall have no liability or obligation under Section F(4) above,
arising from or related to: (i) the Running of the Licensed Product after Cooper
Notification has notified Customer to discontinue Running due to an infringement claim
(existing or prospective); (it) the combination, operation or use of the Licensed Product
with leghnology or other materials not supplied by Cooper Notification for such
purpose; (iii) the alteration or modification of the Licensed Product by Customer; or (iv)
the use of a version of the Licensed Product that has been superseded by a newer
version, if the infringement would have been avoided by use of a more current version
which Cooper Notification has provided ormade available to Customer.
6. Customer agrees to indemnity and defend Cooper Notification from and against any
action, claim, demand. or liability, including reasonable attorneys fees and costs,
arising out of Customers breach of this Agreement or Customers or its Enterprise
Users negligence or willful misconduct, or arising out of or relating to a claim that the
Licensed Product infringes the copyright or other Intellectual Property Right of a third
party due to: (i) Customers Running of the Licensed Product after Cooper Notification
has notified Customer to discontinue Running due to an infringement claim (existing or
prospective); (ii) Customees combination, operation or use of the Licensed Product
with technology or other materials not supplied by Cooper Notification for such
purpose; (iii) the alteration or modificalion of the Licensed Product by Customer; or (iv)
Custorner's use of a version of the Licensed Product that has been superseded by a
newer version, if the infringement would have been avoided by use of a more current
version which Cooper Notification has provided or made available to Customer.
7. Customer acknowledges data entered into the software product in unencrypted and
agrees to assume full responsibility for all data and information stored in or transmitted
through the software product to ensure storage of such data does not violate any
Federal, state and local laws and regulations.
G. Maintenance and Suppo
1. During the Maintenance Tenn and subject to the terms and conditions of this
Agreement, Cooper Notiffication agrees to provide the maintenance and support
services as set forth in Appendix A. Section (collectively, the "Suppont Serviceel for
the Licensed Product. The parties agree that Cooper Notification shall have no
obligation to provide any maintenance or support -related services under this
Agreement except as expressly set forth in such Appendix . At Cooper Notification's
sole choice and option, Cooper Notification may provide the maintenance and support
services set forth in Appendi B, entitled Enhanced Maintenance and Support
Services.
2. Customer will designate, in writing, no more than two (2) persons who Will be
Customer's primary support contacts for Support Services (the "Support Confactsl.
Customer agrees that all Support Services inquiries from Customers individual users
Will be directed to a Support Contact and Customers communications with Cooper
Notification for Support Services wit be solely through the Support Contacts. In
addition, Customer agrees that Cooper Notification may contact (and hereby authorizes
Cooper Notification to contact) Cuslonnees third party telecommunications carriers and
Internet Service Providers, including without limitation, cell phone, pager and similar
carriers, on Customers behalf, regarding issues relating to the technical support and
maintenance of the Licensed Product.
3. All Updates and all other deliverables and work product hereunder provided to
Customer shall be subject to the terms and conditions of this Agreement, unless
otherwise expressly agreed in writing by Cooper Notification. Support Services extend
only to the Licensed Product free of any additions or modifications that have not been
made or sold by Cooper Notification of its agents.
4. Customer acknowledges and agrees that the Support Services, Updates, and all
other results of Support Services hereunder, and all work product and deliverables
thereof (collectively, the "Cooper Notification Materials"), are the sole and exclusive
property of Cooper Notification, including all worldwide Intellectual Property Rights
embodied in, related to, or represented by, the Cooper Notification Materials.
H. General
1. The failure by either party to exercise or enforce any right under any provision of this
Agreement shall not be deemed a waiver of such provision or the right of such party
to lhereafter enforce such provision or right. or a waiver of any other provision or
fight of such party under this Agreement.
3. This Agreement (including the Attachments and Appendices hereto,) contains the
parties' entire agreement and understanding with respect to the subject matter
hereof and supersede all prior oral and written agreements and understanding$
related thereto. It any purchase order for the Licensed Product contains any
provision inconsistent with or contrary to any provision of this Agreement, such
purchase order term shall be of no effect and shall form no pan of any contract
between the parties related hereto.
4. If any provision of this Agreement is held by a court of competent jurisdiction or by
arbitration to be invalid, illegal or unenforceable, such provision shall be interpreted
or limited so as to best accomplish the intent of the parties within the limits of
applicable law, and the remaining provisions contained in this Agreement will remain
in full force and effect (so long as such remaining provisions continue to
substantially reflect the original intent of the parties).
5. Customer may not assign this Agreement without Cooper Notification's prior written
conse* This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and penifted assigns.
6. Neither party shall be responsible for any delay in performing or failure to perform
due to circumstances beyond its reasonable control, including Without limitation, acts
of God, acts of terrorism, war, Hot, embargoes, acts of civil or military authorities,
fire, flood, earthquake or labor strike fforce Majeure Event"). The party claiming
the benefit of a Force Majeure Event shall promptly notify the other party of the
occurrence and the anticipated duration of such Force Majeure Event, and shall
promptly resume performance at the end of such Force Majeure Event. Either party
shall have the right to terminate this Agreement in the event that a Force Majeure
Event continues for a perod of sixty (60) consecutive days. Notwithstanding the
foregoing, the obligation to pay amounts due and owing under this Agreement that
arose prior to the occurrence of the Force Majeure Event shall not be extinguished
or delayed by virtue of the Force Majoure Event or the termination of this Agreement
by reason thereof.
7. Customer acknowledges that the laws and regulations of the United States restrict
the export and re-exporl of certain software. Accordingly, Customer shall not export,
directly or indirectly, all or pad of the Licensed Product, or any product or other
materials derived therefrom, to any country Mthou( the appropriate United States
and/or foreign government licenses. Customer shall not export (including, Mthout
limitation, via the Internet) the Licensed Product to any country subject to US
embargo.
8. All notices required or permitted to be given hereunder shall be in writing and shall
be delivered by personal delivery, by registered or certified mail, postage prepaid
and return receipt requested, or by courier, to the address set forth in this
Agreement or to such other address as a party may designate in writing from time to
time by notice given in accordance with the provisions of this sentence.
9. Any claim or dispute arising in connection with this Agreement which is not settled
by the parties Wthin sixty (60) days after notice is first given by either party to the
other will be finally settled by arbitration under the American Arbitration Association
Commercial Arbitration Rules, and judgment upon the award rendered by the
arbitrator(s) may be entered into any court having competent jurisdiction over it. The
award rendered by the arbitrator(s) or court of competent jurisdiction shall state its
reasoning and not include any type of damages that are expressly excluded against
a particular party hereunder. Either party may request a court of competent
jurisdiction to provide interim relief without waiving this agreement to arbitrate
disputes. Each party shall pay for and bear the costs of its own experts, evidence
and legal counsel and its own pro-rata share of the cost of arbitration.
1OThe provisions of this Agreement which by their nature or express language are
intended to survive the termination or expiration of this Agreement, Including without
limitation, Sections B4-8, D, E, F, G4, and H, shall so survive.
11 Cooper Notification may include Customers name, logo and summary description of
its use of the Licensed Product in Cooper Notification's published customer list.
12The relationship of the parties under this Agreement is that of independent
contractors, and neither party shall have any authorty to bind or commit the other.
Nothing herein shall be deemed or construed to create a joint venture, partnership or
agency relationship between the parties for any purpose,
Page 3
13,This Agreement shall be interpreted, construed and governed in accordance with principles of conflict of laws.
and by the substantive laws of the Commonwealth of Virginia, without regi I
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Attachment 1
Glossary of Defined Terms
"Customer Affiliates" means any legal entity that Customer now or hereafter owns or controls, or a company that owns or controls Customer, or a
company that is owned or controlled in common with Customer. For the purpose of this definition, "own or control," means ownership or control,
directly or indirectly, of more than fifty percent (500/6) of the stock having the right to vote for directors thereof. If Customer is a governmental entity,
Customer Affiliate means any related agency, branch, federal, state, county or city governmental entity.
2. "Run"means to copy, install, use, access, display, run, and otherwise interact with, in its intended manner.
3. "Delivery Date"shall mean the day agreed upon by the parties for Cooper Notification to present the Licensed Product to Customer for delivery and
installation, provided Cooper Notification makes a reasonable attempt to do so on that day.
4. "Object Code'shall mean the human -readable version of the Licensed Product supplied to Customer hereunder.
5. "Intellectual property Rights"means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual
property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
6. "Updates" means any update, patch, bug fix or minor modification to the Licensed Products that Cooper Notification provides to Customer. Once
provided, each Update shall be deemed to be included within the Licensed Product.
7. "Confidential Information"means information that the other party considers to be confidential, business and technical information, marketing
plans, research, designs, plans, methods, techniques, processes and know-how, whether tangible or intangible and whether or not stored, compiled
or memorialized physically, electronically, graphically or in writing, and which is identified to the other party in writing or orally as "confidential"or
"proprietary."
8. "Travel Expenses" means any costs incurred by Cooper Notification associated with the transportation, storage or lodging of equipment, supplies,
Cooper Notification employees and consultants and other items necessary for business use from Cooper Notification headquarters to Customer's
facilities. Travel expenses may include, but are not limited to, airlare, hotel costs, and meals if applicable. [If Customer is a governmental entity,
any Travel Expenses paid by the Customer shall be paid at allowable government travel rates, unless otherwise first approved by the Customer's
authorized representative.)
9. "Travel Time"means the hours and minutes elapsing during transportation of Cooper Notification personnel from Cooper Notification headquarters
to Customer's facilities. Travel time shall not include the first hour of transportation from Cooper Notification headquarters to Customer's facilities or
from Customer's facilities to Cooper Notification headquarters.
Page 5
Appendix A
A. Licensed Product:
The Licensed Product includes server -side, Unux-based Roam Secure Alen Network ("RSAN') software, which consists of the RSAN database scheme, core alert
processing module and web -based user, manager and administrator interface files. RSAN is distributed as a single RPM (Red Hat Package Manager) package - the
standard method of distributing software products on this platform. Based upon the Customer's exact conliguration, installation and/or upgrades of certain other packages
that RSAN uses may be required.
Note: RSAN is engineered and tested to run at peak performance on specified server hardware. Cooper Notification makes no recommendations or warranties with
respect to performance, functionality. reliability or any other matter concerning the equipment set forth on the Standard Hardware List (including, without limitation,
performance of such equipment with the Licensed Product) and accepts no responsibility or liability with respect thereto).
Note also: RSAN is engineered to provide optimal delivery speeds and performance. Also, due to the unpredictable and uncontrollable results that may occur when using
a mail relay with RSAN, Cooper Notification makes no warranty, promise or guarantee regarding RSAN's performance should Customer deploy RSAN with a mail relay
system.
NOTWITHSTANDING ANYTHING SET FORTH IN THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN ANY ATTACHED APPENDIX), SHOULD CUSTOMER
ELECT TO IMPLEMENT PISAN USING A MAIL RELAY AND/OR NON-STANDARD HARDWARE, COOPER NOTIFICATION ASSUMES NO RESPONSIBILITY OR
LIABILITY FOR ANY FUNCTIONAL AND/OR PERFORMANCE PROBLEMS THAT MAY RESULT. DUE TO THE UNPREDICTABLE AND UNCONTROLLABLE
RESULTS THAT MAY OCCUR WHEN USING A MAIL RELAY AND/OR NON-STANDARD HARDWARE FOR RSAN, COOPER NOTIFICATION MAKES NO
WARRANTY, PROMISE OR GUARANTEE REGARDING RSAN'S ABILITY TO FUNCTION IN ACCORDANCE WITH ITS EXPECTED PERFORMANCE. COOPER
NOTIFICATION MAKES ONLY THE REPRESENTATIONS, WARRANTIES, PROMISES AND GUARANTEES EXPRESSLY SET FORTH IN THE AGREEMENT.
B. Installation Fees:
Cooper Notification will assist Customer with all installations, the costs of which are included in the License Fees and consist of Technical and Project Management
support in the amount specified below. Additional hours may be purchased in accordance with Cooper Notification's current Commercial Price Ust for such services.
Project Managementri-echnical Implementation Hours 58
C. License Fees and Other Fees:
The License Fees payable by Customer to Cooper Notification lot the license rights granted to Customer under the Agreement are as follows: $13,600 for the First Year
and $13,600 for Subsequent Annual Renewals for Support Fees and Services. All License Fees shall be payable as set forth In Section C of the Agreement. License
Fees are payable based on the size of Customer's licensed recipient population for notification messages, which is 10,000 individuals for RSAN-EMA/COOP. The
License Fees are payable for use of the Licensed Product for the RSAN servers, back -up -server software, web -hosting services. and Updates.
D. Support Fees and Services '
Support Fees for the Licensed Product are included in the License Fees set forth in Section C of this Appendix, cover a period of one year from the Effective Date and
consist of Standard Maintenance and Support Services, and which extend for a period of 4 additional years following the Effective Date ("Initial Support Tenn") and
Include, connection to the Roam Secure Information Exchange. The Support Services shall be renewable beyond the Initial Support Term according to the provisions set
forth in Section E of this Appendix.
Subject to Customer's payment of any outstanding License Fees and Support Fees, Cooper Notification will make the following Support Services available to the
Customer:
Premium SMS Delivery of Messaaes
The customer will be allowed to send 15,000 premium SMS messages per year, using the Aggregator. After this limit has been reached Premium SMS messages will be
charged at the higher of $0.05 per message or the Cooper Notification's then -current rate.
Voice Message
The customer will be allowed to send 2,500 minutes of voice messages per year. After this limit has been reached additional voice minutes will be charged at the higher
of $0.15 per minute or the Cooper Notification's then -current rate. The Customer can also buy bundles of pre -paid of 10,000 minutes for $1.500 per bundle.
Standard Maintenance and Suocort Services
The Customer shall receive a total of 28 hours of customer support by phone, email, or if necessary, site visits free -of -charge per year. Time shall be debited in half-hour
increments. Requests due to failure of or defect in the RSAN system shall not count towards the free -of -charge hours. Requests over the allocated hour limit shall be
charged on a time and materials basis at the then -current rate published in Cooper Notification's Commercial Price List (on the Effective Date, such rate is $150 per hour)
billed in minimum half-hour increments, plus Travel Expenses.
Standard Updates are included in the Support Fee and will be delivered to the Customer electronically, in a manner agreed upon by the parties,
Cooper Notification shall not be responsible for downtime due to power outages. acls of God or other Force Majeure Events, hardware failures, injury suffered as a result
of the failure of an Enterprise User to receive RSAN messages and other matters outside of Cooper Notification's control. Support in such instances shall not be covered
Page 6
by the License Fees or the Support Fees, and if requested by Customer, such support shall be billed at the then -current rate published in Cooper Notification's
Commercial Price List, billed in minimum half-hour increments, plus Travel Expenses.
Customer may at its option allow Cooper Notification technical staff to log into the RSAN server remotely in order to install Updates and/or to resolve technical problems.
Enhanced Maintenance and Support Services
The terms of the Enhanced Maintenance and Support Services are set forth in Appendix B of this Agreement.
E. Renewal of Support Services
The Customer may renew the Support Services set forth in Section D of this Appendix, including Standard Maintenance and Support, Premium SIMS messages, Voice
Minutes and Enhanced Maintenance and Support (if applicable) and connection to the Roam Secure Information Exchange, by paying an annual renewal Support Fee
each year after the Initial Support Term, The annual renewal Support Fee (for each of Standard Maintenance and Support and Enhanced Maintenance and Support)
shall be charged at Cooper Notification's then -current rates,
F Service Level Agreement
In order to deal efficiently with problems reported to Cooper Notification by the Customer. a problem ticket will be created for each problem and one of 3 priority codes will
be allocated thereto:
Level 1: Major Impact - Directly causing a total loss of the Customer's ability to send RSAN notifications using RSAN.
Level 2: Significant Impact - Directly reducing a number of features of the PISAN, such as remote email start generation.
Level 3: No Immediate Impact - causing only inconvenience to Customer. and may include scheduled network changes to Customer's network architecture.
The target maximum times for response for each level are:
Level 1: as soon as possible, targeting a response time of 1 hour (during Cooper Notification's normal business hours), or 3 hours (during other than Cooper
Notification's normal business hours). from initial notification of problem to Cooper Notification by the Customer.
Level 2: 24 hours.
Level 3: 72 hours.
Page 7
Appendix IS
Enhanced Maintenance and Support Services [Only applicable if purchased in App A Section D]
NOTE: Enhanced Maintenance and Supporl Services applicable only if elected by Customer in accordance with Section D of Appendix A, Section D to the Agreement
SECTION 1: Statement of Work
The Customer has requested additional support services related to the Roam Secure Alerl Network (RSAN). Section D of Appendix A to the Agreement provides for
certain Support Fees and standard Support Services, and additional services.
As part of the Enhanced Maintenance and Support Services, Cooper Notification shall make sevefal contacts available to the Customer, as follows:
Primary Technical Contact: Caroline Wales
Primary Number: 732-272-9190
Primary email: caroline.wates@cc)operindustries.com
Secondary Technical Contact: Michael Rudy
Primary Number: 732-272-9191
Primary email: michael.rudy@cooperindustries.com
Lead Account Contact: Fabian Escalante
Primary Number: 949-940-6428
Primary email: tablan.escalante@cooperindustries.com
During Cooper Notification's normal business hours (i.e., Monday through Friday from 8:30 AM EST to 5:30 PM EST), Customer shall use the primary email address to
contact an individual, and/or the primary number. For support after normal business hours, on weekends and on holidays, Customer shall call 703-294-6768 extension
262 or e-mail supporl@roamsecure,net.
SECTION 2. Summary of Enhanced Maintenance and Support:
General on -site support retainer:
One-year support retainer
Support personnel for level 1, 2 and 3 types of incidents will be available
Reconfigure RSAN servers due to changes in Customer's network
Provide technical advice and support regarding the effective and
efficient operation of the RSAN software
Includes original [Insert Base Support Hours] hours of support, plus an additional fifty (50) hours of support per year (Support Hours)
o Includes up to total Support Hours of phone and/or email support per year
c, Additional calls/email requests in excess of Support Hours shall be billed at the then -current rate published in Cooper Notification's Commercial Price List,
billed in minimum half-hour increments, plus Travel Expenses.
Includes twelve day -long, or 24 half -day, site visits per year to resolve reported problems
• Each day -long site visit up to eight hours each, and each hall -day site visit up to four hours each.
• Additional support onsile or off -site including visits and hours beyond original 12 day -long or 24 half -day visits, shall be
billed at the then -current rate published in Cooper Notification's Commercial Price List, billed in minimum half-hour increments, plus Travel Expenses.
Standard Updates performed on -site:
Installation. configuration and testing of standard Updates to the primary and back-ups servers on -site or via remote access are included.
Update installation, configuration and testing is estimated to take approximately 4-6 hours, the cost for such time is included.
Package includes up to four Updates per year.
This Appendix B shall remain valid until superseded by a revised addendum mutually agreed upon in writing by both partles,
Page 8
Appendix C
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Page 9
Appendix D
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Page 10
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
June 7, 2012
David Lowrey
Cooper Notification, Inc.
273 Branchport Avenue
Long Branch, NJ 07740
Re: Software License Agreement for the Use of an Electronic Notification System
Dear Mr. Lowrey:
Transmitted herewith is a fully executed original contract, as referenced above, approved by City
Council on June 5, 2012, through Resolution No. 2012-86.
If you have any questions regarding this matter, please call Andrei Yermakov at (323) 583-8811
ext. 248.
Very ly yours,
e1A G. Y
City Clerk
WGY:dj
Enclosure
c: Carlos Fandino
Andrei Yermakov
Purchasing Department
Resolution No. 2012-86
Agreement File No. 12-050
Eryhaivefy Industhaf
SOFTWARE LICENSE AGREEMENT
THis SOFTWARE LICENSE AGREEMENT (the "Agreement) is made on June 5 , 2012 (the "Effective Datd), by and between Cooper Notification, Inc., a Delaware
Corporation authorized to do business in Commonwealth of Virginia, with its principal offices located at 103 W Broad Street. Suite 500, Church Falls, VA, 22046 C'Cooper
Notificatiod), and the City of Vernon, (the "Customee):
CUSTOMER HAS READ AND AGREES TO BE LEGALLY BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS (INCLUDING THE ATTACHMENTS AND
APPENDICES THERETO), ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT. NOTWITHSTANDING ANY FAILURE OF CUSTOMER OR COOPER
NOTIFICATION TO TIMELY EXECUTE THIS AGREEMENT PRIOR TO ACCEPTANCE AND/OR USE OF THE LICENSED PRODUCT, CUSTOMER EXPRESSLY
ACKNOWLEDGES AND AGREES THAT CUSTOMER'S VOLUNTARY ACCEPTANCE AND COMMENCING IMPLEMENTATION OF THE LICENSED PRODUCT SHALL BE
DEEMED FULL AND VOLUNTARY ACCEPTANCE OF AND AGREEMENT BY CUSTOMER WITH ALL THE TERMS OF THIS AGREEMENT, BINDING ON THE CUSTOMER IN
ACCORDANCE WITH THE TERMS HEREOF EFFECTIVE AS OF THE EARLIEST DATE OF SUCH ACCEPTANCE OR USE,
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives,
COOPER NOTIFICATION, INC.
By;
Name: David Lowrey
Title: Vice President Finance
Date: 7
By:
Name: Scott Hearn
Title: President
Date: .517,411z,
A. Definitions.
CITY OF VERNON
By: , (
—,, PJIA� Nor— _V
Name: Willia�,,Day.is
Title: Mayc
Date:
By: A
Name: Wi]
Title: Cit:3
Date:
TERMS AND CONDITIONS
All capitalized terms used in this Agreement or in the Attachment or Appendixes to this
Agreement shall have the respective meanings ascribed to them in this Agreement or
in the glossary set forth in Attachment 1, hereto. All capitalized terms used in this
Agreement, unless indicated otherwise, include all derivative forms and variations of
the terms.
B. Grant and Scope of License
1. Subject to the terms and conditions of this Agreement, Cooper Notification hereby
grants Customer a non-exclusive, non -transferable license to (i) Run the software
product(s) identified in Appendix , (the "Producf) as well as any Updates provided by
Cooper Notification on Custorner's server, and (if) use the related documentation in
connection with Customer's authorized use of the Product. (The Product, any Updates
thereto, and the related documentation, are collectively referred to in this Agreement as
the "Licensed Product'.)
2. "Customer's Enterprise" means the Customer specifically named above, but
expressly excludes any Customer Affiliates. The Licensed Product may only be used
within Customers Enterprise in accordance with Customer's authorized use as defined
in Section B3 on an application service provider ("ASPI basis.
3. Authorized Use. In consideration of the License Fees payable hereunder,
Customer may send notification(s) using the Licensed Product only to the size of the
licensed recipient population identified in Appendix A, Section C. Customer may
authorize only those individuals to send notification(s) using the Licensed Product who
are: (1) pan of Customer's Enterprise, or (2) acting on behalf of Customers Enterprise
and carrying out the purpose of Customers Enterprise.
In no event shall any message(s) be transmitted for the benefit of a third party by
Customer or an outside entity using Custornef s Licensed Product. Any other use of
the Licensed Product is prohibited.
Any expansion of or addition to the size of Customers licensed recipient population
shall require payment of additional License Fees and where applicable, Support Fees
in accordance with Section C below.
4. As between the parties, all rights, title and interest in and to the Licensed Product
(and any derivative works thereto) and all underlying Intellectual Propely Rights
thereto, are and at all times will be, the sole and exclusive property of Cooper
Notification or its licensors, as the case may be, The Licensed Product may not be
used for the benefit of any third parlies not authorized herein, including without
limitation, in an outsourcing, timesharing, or ASP arrangement, or in the operation of a
service bureau. Except as expressly set forth in this Agreement, Customer acquires no
rights in or to the Licensed Product and Customer shall not use the Licensed Product
other than as specifically set forth in this Agreement,
5. Customer may make a reasonable number of copies of the Licensed Product for
bona fide back up purposes only. All such copies are subject to the terms and
conditions of this Agreement.
6. Customer shall not (and shall not permit any other party to) translate, clecompile,
reverse engineer, merge, adapt or modify the Licensed Product or any Updates in any
way, and no derivative work may be created therefrom. In addition, Customer shall not
(and shall not permit any other party to) avoid, circumvent, or disable any security
device, procedure. protocol, or mechanism that Cooper Notification may include,
require or establish with respect to the Licensed Product.
7. Customer shall not delete, alter, cover, or distort any copyright, trademark. or other
proprietary rights notice placed by Cooper Notification on or in the Licensed Product,
and shall ensure that all such notices are reproduced on all copies of the Licensed
Product.
8. All rights not expressly granted in this Agreement are reserved to Cooper
Notification.
C. License and Support Fees
1. Customer agrees to pay Cooper Notification or the contractor or reseller supplying
the Licensed Product the License Fees for the Licensed Product in the amounts as set
forth in Appendix A, Section C, (the "License Fees.") For Support Services, Customer
agrees to pay Cooper Notification or the contractor or reseller supplying the Licensed
Product the fees provided under Section G, below (the "Support Faesr), in the
amounts and according to the schedule set forth in Appendix A. Section C. All License
Fees and Support Fees for the Licensed Product and Support Services are due and
Page I
payable within Thirty (30) days of the date of invoice. Any additional andlor
subsequent License Fees and Support Fees are due and payable within thirty (30)
days of the date of Customers receipt of invoice, The invoice for the first year charges
will be raised on receipt of order and will be due within thirty (30) days of the invoice
date. Renewal / Support fees are due prior to the renewal date.
2. All License Fees and Support Fees are exclusive of all taxes. Customer is
responsible for payment of state or local sales or use taxes and state or local property
or excise taxes associated with Customers licensing, possession, or use of the
Licensed Product or any related services, (other than income taxes payable by Cooper
Notification.)
D. Confidentialit
1. Each party agrees to secure and protect the Confidential Information of the other
using at least as great a degree of care as it uses to protect own confidential
information of a similar nature, but in no event less than reasonable care. Each party
agrees to hold the Confidential Information of the other party in confidence and not
disclose it to third parties. Neither party may use Confidential Information in any way,
commercially or othenvise, except in performance of its obligations under this
Agreement.
2. Notwithstanding Section D(I), Confidential Information of a party shall not include
information which: (i) is, as of the time of its disclosure or thereafter becomes part of
the public domain without the fault of the receiving party; (ii) was rightfully known to the
receiving party without obligation of confidentiality at the time of its disclosure; (iii) is
independently developed by the receiving party without the use of the disclosing party's
Confidential Information; or (iv) is subsequently learned from a third party that has the
right to disclose the Confidential Information and is not under a confidentiality obligation
to the disclosing party. A party may disclose Confidential Information that is required to
be disclosed pursuant to a duly authorized subpoena, court order, or government
authority or that Is required to be disclosed under the United States Freedom of
Information Act, provided that the party subject to same provides prompt written notice
to the other party prior to such disclosure, enabling such other party to seek a
protective order or other appropriate remedy.
E. Term and Termination
1. The term of the License granted in Section BI shall extend until terminated as
otherwise provided herein.
2. The term for the Standard Maintenance and Support Services set forth in Appendix
A, Section D shall be deemed to have commenced on the Effective Date and shall
continue for a period of 6 years ("Maintenance Terml unless earlier terminated
pursuant to the terms of this Agreement, or if selected by Customer, as otherwise
provided in Appendix B, Enhanced Maintenance and Support Services.
Notwithstanding any failure of Customer or Cooper Notification to timely execute this
Agreement prior to acceptance and/or use of the Licensed Product, Customer
expressly acknoWedges and agrees that Customers voluntary acceptance and
commencing implementation of the Licensed Product shall be deemed full and
voluntary acceptance of and agreement by Customer with the terms of this Agreement,
binding on the Customer in accordance with the terms hereof effective as of the earliest
date of such acceptance or use.
3. In accordance with applicable regulations, either party may terminate this Agreement
with written notice it the other party fails to comply with any material term or condition of
this Agreement and fails to remedy such breach within thirty (30) days of receipt of
written notice of such breach.
4. In addition to the foregoing, either party may terminate this Agreement if the other
party makes a general assignment for the benefit of creditors, files a voluntary petition
of bankruptcy, suffers or permits the appointment of a receiver for its business or
assets, becomes subject to any proceedings under any bankruptcy law, or has
liquidated its business voluntarily or othermise, and the same has not been discharged
or terminated within forty-five (45) days.
5. In addition, Cooper NDlifiC81ion may terminate this Agreement at any time for any
reason upon thirty (30) days written notice to Customer. After one year from the
Effective Date, Customer may terminate this Agreement for any reason upon thirty (30)
days written notice to Cooper Notification. In the event Cooper Notification, within the
first year from the Effective Date, terminates this Agreement pursuant to this Section
E5, Cooper Notification shall promptly refund to Customer a pro -rated portion of the
License Fees paid by Customer for the first period, and a pro -rated portion of any pre-
paid Support Fees based upon the unexpired period of the Maintenance Term. In
addition, in the event either party terminates this Agreement pursuant to this Section E5
after the first year, Cooper Notification shall promptly refund to Customer a pro -rated
portion of the License Fees paid by Customer, and a pro -rated portion of any pre -paid
Support Fees based upon the unexpired period of the Maintenance Term.
6, Immediately upon termination of this Agreement, the Customer shall: (1) pay all
amounts owed to Cooper Notification; (ii) cease all use of the Licensed Product; ffil)
return to Cooper Notification all copies of the Licensed Product and any other
Confidential Information or proprietary materials of Cooper Notification in its possession
or control or in escrow; and (iv) cedify in writing Customers compliance with this
Section E6.
F. Warranties and Disclaimer; Limitation of Llabilitya Indemnification
1. Cooper Notification warrants that it has the full authority to grant the rights granted to
Customer herein. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY.
COOPER NOTIFICATION DISCLAIMS ANY AND ALL WARRANTIES WITH
RESPECT TO THE LICENSED PRODUCTS AND UPDATES. WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT, EXCEPT FOR THE FOREGOING EXPRESS WARRANTY,
THE LICENSED PRODUCTS AND UPDATES ARE PROVIDED "AS IS" AND WITH
ALL FAULTS, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT IT
ASSUMES ALL RISKS OF THE USE, QUALITY, AND PERFORMANCE THEREOF.
2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE.
OR COVER DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES (PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT
APPLY WITH RESPECT TO DAMAGES FOR BODILY INJURY OR DEATH.
DAMAGES FOR BREACH OF SECTION D, OR DAMAGES FOR INFRINGEMENT
PURSUANT TO SECTION Fa)). IN ANY EVENT, COOPER NOTIFICATION'S TOTAL
AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR
ANY REASON SHALL BE LIMITED TO DIRECT DAMAGES UP TO THE TOTAL
AMOUNT OF LICENSE FEES PAID BY CUSTOMER TO COOPER NOTIFICATION
HEREUNDER DURING THE TERM. THE FOREGOING LIMITATIONS APPLY TO
ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF
CONTRACT. BREACH OF WARRANTY. STRICT LIABILITY. NEGLIGENCE AND
OTHER TORTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE
LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER
LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW OR
OTHERWISE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED,
EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS
OF ITS ESSENTIAL PURPOSE.
3. Customer shall promptly notify Cooper Notification in writing prior to adding to
or expanding the size of Customers licensed recipient population beyond that
indicated in Appendix A, Section C. Customer shall keep records relating to the
Licensed Product and its use. These records must be sufficient to allow Cooper
Notification to verify compliance with Customers obligations under this
Agreement. Cooper Notification has the right to review such records, upon
reasonable notice to Customer, for as long as Customers license under Section
131 shall extend and for a period of two (2) years thereafter. If any such review
discloses use of the Licensed Product in violation of the terms of this Agreement.
upon written notice from Cooper Notification, Customer shall either immediately (i)
cease its use which is in violation of the terms of this Agreement and (b) pay to
Cooper Notification any and all fees and/or other amounts required to place
Customer in compliance with the terms of this Agreement commencing from the
date of the violation.
4. Cooper Notification agrees to indemnify and defend Customer from and against any
action, claim, demand, or liability, including reasonable attorney's fees and costs,
arising from or relating to a claim that the Licensed Product infringes upon the copyright
of a third party. If the Licensed Product is held by a court of competent jurisdiction to
infringe a third party copyright, or it in Cooper Notification's opinion, such a claim of
copyright infringement is likely to occur, Cooper Notification may, at its sole option and
expense: (i) procure for Customer the right to continue using the Licensed Product; or
(it) replace or modify the Licensed Product so that it becomes non -infringing as long as
functionality is not materially and adversely affected. or ffli) refund to Customer a
portion of the License Fee paid by Customer and accept Customers return of the
Licensed Product and termination of this Agreement. THIS SECTION F (4) STATES
COOPER NOTIFICATION'S ENTIRE LIABILITY AND OBLIGATION, AND
Page 2
CUSTOMER'S EXCLUSIVE REMEDY, FOR INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS,
2. Modifications of this Agreement shall be binding only if made in writing and signed
by authorized representatives of both parties.
5. Cooper Notification shall have no liability or obligation under Section F(4) above,
arising from or related to: (i) the Running of the Licensed Product after Cooper
Notification has notified Customer to discontinue Running due to an infringement claim
(existing or prospective); (ii) the combination, operation or use of the Licensed Product
with teihnology or other materials not supplied by Cooper Notification for such
purpose; (iii) the alteration or modification of the Licensed Product by Customer; or (iv)
the use of a version of the Licensed Product that has been superseded by a newer
version, it the infringement would have been avoided by use of a more current version
which Cooper Notification has provided or made available to Customer,
6. Customer agrees to indemnify and defend Cooper Notification from and against any
action, claim, demand, or liability, including reasonable attorney's fees and costs,
arising out of Customefs breach of this Agreement or Customers or its Enterprise
User's negligence or willful misconduct, or arising out of or relating to a claim that the
Licensed Product infringes the copyright or other Intellectual Property Right of a third
parly due to: (i) Customers Running of the Licensed Product after Cooper Notification
has notified Customer to discontinue Running due to an Infringement claim (existing of
prospective); (if) Customers combination, operation or use of the Licensed Product
with technology or other materials not supplied by Cooper Notification for such
purpose; (iii) the alteration or modification of the Licensed Product by Customer; or IN)
Customer's use of a version of the Licensed Product that has been superseded by a
newer version, if the infringement would have been avoided by use of a more current
version which Cooper Notification has provided or made available to Customer.
7, Customer acknowledges data entered into the software product in unencrypted and
agrees to assume full responsibility for all data and information stored in or transmitted
through the software product (o ensure storage of such data does not violate any
Federal, state and local laws and regulations.
G. Maintenance and Suppo
1. During the Maintenance Term and subject to the terms and conditions of this
Agreement, Cooper Notification agrees to provide the maintenance and support
services as set forth in Appendix A, Section D (collectively, the "Support Servicee) for
the Licensed Product. The parties agree that Cooper Notification shall have no
obligation to provide any maintenance or support-ralated services under this
Agreement except as expressly set forth in such Appendix . At Cooper Notification's
sole choice and option, Cooper Notification may provide the maintenance and support
services set forth in Appendix B, entitled Enhanced Maintenance and Support
Services.
2. Customer will designate, in writing, no more than two (2) persons who will be
Customers primary support contacts for Support Services (the "Support Confactd),
Customer agrees that all Support Services inquiries from Customer's individual users
will be directed to a Support Contact and Customers communications with Cooper
Notification for Support Services will be solely through the Support Contacts. In
addition, Customer agrees that Cooper Notification may contact (and hereby authorizes
Cooper Notification to contact) Customers third party telecommunications carders and
Internet Service Providers, including without limitation, cell phone, pager and similar
carriers, on Customers behalf, regarding issues relating to the technical support and
maintenance of [he Licensed Product.
3. All Updates and all other delivefables and work product hereunder provided to
Customer shall be subject to the terms and conditions of this Agreement, unless
otherwise expressly agreed in writing by Cooper Notification. Support Services extend
only to the Licensed Product free of any additions or modifications that have not been
made or sold by Cooper Notification or its agents.
4. Customer acknowledges and agrees that the Support Services, Updates. and all
other results of Support Services hereunder, and all work product and deliverables
thereof (collectively, the "Cooper Notification fWaterials), are the sole and exclusive
property of Cooper Notification, including all worldwide Intellectual Property Rights
embodied in, related to, or represented by, the Cooper Notification Materials.
H. General
1. The failure by either party to exercise or enforce any right under any provision of this
Agreement shall not be deemed a waiver of such provision or the eight of such party
to thereafter enforce such provision or right, or a waiver of any other provision or
right of such party under this Agreement.
3. This Agreement (including the Attachments and Appendices hereto,) contains the
parties' entire agreement and understanding with respect to the subject matter
hereof and supersede all prior oral and written agreements and understandings
related thereto. If any purchase order for the Licensed Product contains any
provision inconsistent with or contrary to any provision of this Agreement. such
purchase order term shall be of no effect and shall form no pal of any contract
between the parties related hereto.
4. It any provision of this Agreement is held by a court of competent jurisdiction or by
arbitration to be invalid, illegal or unenforceable, such provision shall be interpreted
or limited so as to best accomplish the intent of the parties within the limits of
applicable law, and the remaining provisions contained in this Agreement will remain
in full force and effect (so long as such remaining provisions continue to
substantially reflect the original intent of the parties).
5. Customer may no( assign this Agreement Without Cooper Notification's prior written
consenU This Agreement shall be binding upon and inure to the benefit of the
pardes hereto and their respective heirs, successors and permitted assigns.
6. Neither party shall be responsible for any delay in performing or failure to perform
due to circumstances beyond its reasonable control, including without limitation, act$
of God, acts of terrorism, war, dot, embargoes, acts of civil or military authorities.
fire, flood, earthquake or labor strike ("Force Majeure Event'). The party claiming
the benefit of a Force Majeure Event shall promptly notify the other party of the
occurrence and the anticipated duration of such Force Majeure Event, and shall
promptly resume performance at the end of such Force MajeWre Event. Either party
shall have the right to terminate this Agreement in the event that a Force Majeure
Event continues for a period of sixty (60) consecutive days. NotvAthstanding the
foregoing, the obligation to pay amounts due and owing under this Agreement that
arose pror to the occurrence of the Force Majeure Event shall not be extinguished
or delayed by virtue of the Force Majeure Event or the termination of this Agreement
by reason thereof.
7. Customer acknowledges that the laws and regulations of the United States restrict
the export and re-export of certain software. Accordingly, Customer shall not export,
directly or indirectly, all or part of the Licensed Product, or any product or other
materials derived therefrom, to any country without the appropriate United States
and/or foreign government licenses, Customer shall not export (including, without
limitation, via the Internet) the Licensed Product to any country subject to US
embargo.
8. All notices required or permitted to be given hereunder shall be in writing and shall
be delivered by personal delivery, by registered or certified mail, postage prepaid
and return receipt requested, or by courier, to the address set forth in this
Agreement or to such other address as a party may designate in writing from time to
time by notice given in accordance with the provisions of this sentence.
9. Any claim or dispute arising in connection with this Agreement which is not settled
by the partles within sixty (60) days after notice is first given by either party to the
other will be finally settled by arbitration under the American Arbitration Association
Commercial Arbitration Rules, and judgment upon the award rendered by the
arbitrator(s) may be entered into any court having competent jurisdiction over it. The
award rendered by the arbitratods) or court of competent jurisdiction shall state its
reasoning and not include any type of damages that are expressly excluded against
a particular party hereunder. Either party may request a court of competent
jurisdiction to provide interim relief without waiving this agreement to arbitrate
disputes. Each party shall pay for and bear the costs of its own experts, evidence
and legal counsel and its own pro-rala share of the cost of arbitration.
1OThe provisions of this Agreement which by their nature or express language are
Intended to survive the termination or expiration of this Agreement, including without
limitation, Sections B4-8, D. E, F, G4, and H, shall so survive.
11 Cooper Notification may include Customers name, logo and summary description of
its use of the Licensed Product in Cooper Notification's published customer list.
12The relationship of the parties under this Agreement is that of independent
contractors, and neither party shall have any authority to bind or commit the other.
Nothing herein shall be deemed orconstrued to create a joint venture, partnership or
agency relationship between the parties for any purpose,
Page 3
13.This Agreement shall be interpreted, construed and governed in accordance with principles of conflict of laws.
and by the substantive laws of the Commonwealth of Virginia, without regi
Page 4
Attachment 1
Glossary of Defined Terms
1 . "Customer Affiliates" means any legal entity that Customer now or hereafter owns or controls, or a company that owns or controls Customer, or a
company that is owned or controlled in common with Customer. For the purpose of this definition, "own or control," means ownership or control,
directly or indirectly, of more than fifty percent (50%) of the stock having the right to vote for directors thereof. If Customer is a governmental entity,
Customer Affiliate means any related agency, branch, federal, state, county or city governmental entity.
2. 'Rud'means to copy, install, use, access, display, run, and otherwise interact with, in its intended manner.
3. "Delivery Date"shall mean the day agreed upon by the parties for Cooper Notification to present the Licensed Product to Customer for delivery and
installation, provided Cooper Notification makes a reasonable attempt to do so on that day.
4. "Object Codd'shall mean the human -readable version of the Licensed Product supplied to Customer hereunder.
5. "Intellectual Property Rights"means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual
property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
6. "Updates" means any update, patch, bug fix or minor modification to the Licensed Products that Cooper Notification provides to Customer. Once
provided, each Update shall be deemed to be included within the Licensed Product.
7. "Confidential Information" means information that the other party considers to be confidential, business and technical information, marketing
plans, research, designs, plans, methods, techniques, processes and know-how, whether tangible or intangible and whether or not stored, compiled
or memorialized physically, electronically, graphically or in writing, and which is identified to the other party in writing or orally as "confidential" or
,.proprietary."
8. "Travel Expenses" means any costs incurred by Cooper Notification associated with the transportation, storage or lodging of equipment, supplies,
Cooper Notification employees and consultants and other items necessary for business use from Cooper Notification headquarters to Customer's
facilities. Travel expenses may include, but are not limited to, airfare, hotel costs, and meals it applicable. [if Customer is a governmental entity,
any Travel Expenses paid by the Customer shall be paid at allowable government travel rates, unless otherwise first approved by the Customer's
authorized representative.]
9. "Travel Time" means the hours and minutes elapsing during transportation of Cooper Notification personnel from Cooper Notification headquarters
to Customer's facilities. Travel time shall not include the first hour of transportation from Cooper Notification headquarters to Customer's facilities or
from Customer's facilities to Cooper Notification headquarters.
Page 5
Appendix A
A. Licensed Product:
The Licensed Product includes server -side, Linux-based Roam Secure Alert Network ("RSAN') software, which consists of the RSAN database scheme, core alert
processing module and web -based user, manager and administrator interface files. RSAN is distributed as a single RPM (Red Hat Package Manager) package - the
standard method of distributing software products on this platform. Based upon the Customer's exact configuration. Installation and/or upgrades ofcertaln otherpackages
that RSAN uses may be required.
Note: RSAN is engineered and tested to run at peak performance on specified server hardware. Cooper Notification makes no recommendations or warranties with
respect to performance, functionality. reliability or any other matter concerning the equipment set forth on the Standard Hardware List (including, without limitation,
performance of such equipment with the Licensed Product) and accepts no responsibility or liability with respect thereto).
Note also: RSAN is engineered to provide optimal delivery speeds and performance. Also, due tothe unpredictable and uncontrollable results that may occur when using
a mail relay with RSAN, Cooper Notification makes no warranty. promise or guarantee regarding RSAN's performance should Customer deploy RSAN with a mail relay
system.
NOTWITHSTANDING ANYTHING SET FORTH IN THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN ANY ATTACHED APPENDIX), SHOULD CUSTOMER
ELECT TO IMPLEMENT RSAN USING A MAIL RELAY AND/OR NON-STANDARD HARDWARE. COOPER NOTIFICATION ASSUMES NO RESPONSIBILITY OR
LIABILITY FOR ANY FUNCTIONAL AND/OR PERFORMANCE PROBLEMS THAT MAY RESULT, DUE TO THE UNPREDICTABLE AND UNCONTROLLABLE
RESULTS THAT MAY OCCUR WHEN USING A MAIL RELAY AND/OR NON-STANDARD HARDWARE FOR RSAN, COOPER NOTIFICATION MAKES NO
WARRANTY, PROMISE OR GUARANTEE REGARDING RSAN'S ABILITY TO FUNCTION IN ACCORDANCE WITH ITS EXPECTED PERFORMANCE, COOPER
NOTIFICATION MAKES ONLY THE REPRESENTATIONS, WARRANTIES, PROMISES AND GUARANTEES EXPRESSLY SET FORTH IN THE AGREEMENT.
B. Installation Fees:
Cooper Notification will assist Customer with all installations, the costs of which are included in the License Fees and consist of Technical and Project Management
support in the amount specified below, Additional hours may be purchased in accordance with Cooper Notification's current Commercial Price List for such services.
I Project Management/Technical Implementation Hours 1 58 1
C. License Fees and Other Fees
The License Fees payable by Customer to Cooper Notification for the license rights granted to Customer under the Agreement are as follows: $13,500 forthe First Year
and $13,500 for Subsequent Annual Renewals for Support Fees and Services. All License Fees shall be payable as set forth in Section C of the Agreement. License
Fees are payable based on the size of Customer's licensed recipient population for notification messages, which is 10,000 individuals for RSAN-EMAICOOP. The
License Fees are payable for use of the Licensed Product for the PISAN servers, back -up -server software, web -hosting services, and Updates.
D. Support Fees and Services
Support Fees for the Uicensed Product are included in the License Fees set forth in Section C of this Appendix, cover a period of one year from the Effective Date and
consist of Standard Maintenance and Support Services, and which extend for a period of 4 additional years following the Effective Date ("Initial SupportTerm") and
include, connection to the Roam Secure Information Exchange. The Support Services shall be renewable beyond the Initial Support Term according to the provisions set
forth in Section E of this Appendix.
Subject to Customers payment of any outstanding License Fees and Support Fees. Cooper Notification will make the following Support Services availableto the
Customer:
Premium SIMS Delivery of Messages
The customer will be allowed to send 15,000 premium SMS messages per year. using the Aggregator. After this limit has been reached Premium SMS messages will be
charged at the higher of $0.05 per message or the Cooper Notification's then -current rate.
Voice Messages
The customer will be allowed to send 2,500 minutes of voice messages per year. After this limit has been reached additional voice minutes will be charged at the higher
of $0,15 per minute or the Cooper Notification's then -current rate. The Customer can also buy bundles of pre -paid of 10,000 minutes for $1,500 per bundle,
Standard Maintenance and SuDDort Services
The Customer shall receive a total of 28 hours of customer support by phone, email, or if necessary, site visits free -of -charge per year. Time shall be debited in half-hour
increments. Requests due to failure of or defect in the RSAN system shall not count towards the free -of -charge hours. Requests over the allocated hour limit shall be
charged on a time and materials basis at the then -current rate published in Cooper Notification's Commercial Price Ust (on the Effective Date, such rate is $150 per hour)
billed in minimum half-hour increments, plus Travel Expenses.
Standard Updates are included in the Support Fee and will be delivered to the Customer electronically, in a manner agreed upon by the parties.
Cooper Notification shall not be responsible for downtime due to power outages, acts of God or other Force Majeure Events, hardware failures, injury suffered as a result
of the failure of an Enterprise User to receive RSAN messages and other matters outside of Cooper Notification's control. Support in such instances shall not be covered
Page 6
by the License Fees or the Support Fees, and if requested by Customer, such support shall be billed at the then -current rate published in Cooper Notification's
Commercial Price List, billed in minimum half-hour increments, plus Travel Expenses.
Customer may at its option allow Cooper Notification technical staff to log into the RSAN server remotely in order to install Updates and/or to resolve technical problems.
Enhanced Maintenance and Support Services
The terms of the Enhanced Maintenance and Support Services are set forth in Appendix B of this Agreement.
E. Renewal of Support Services
The Customer may renew the Support Services set forth in Section D of this Appendix, including Standard Maintenance and Support, Premium SMS messages, Voice
Minutes and Enhanced Maintenance and Support (if applicable) and connection to the Roam Secure Information Exchange, by paying an annual renewal Support Fee
each year after the Inilial Support Term. The annual renewal Support Fee (for each of Standard Maintenance and Support and Enhanced Maintenance and Support)
shall be charged at Cooper Notification's then -current rates.
F Service Level Agreement
In order to deal efficiently with problems reported to Cooper Notification by the Customer, a problem ticket will be created for each problem and one of 3 priority codes will
be allocated thereto:
Level 1: Major Impact - Directly causing a total loss of the Customer's ability to send RSAN notifications using RSAN.
Level 2: Significant Impact - Directly reducing a number of features of the RSAN, such as remote email alert generation.
Level 3: No Immediate Impact - causing only inconvenience to Customer, and may include scheduled network changes to Customers network architecture.
The target maximum times for response for each level are:
Level 1: as soon as possible, targeting a response time of 1 hour (during Cooper Notification's normal business hours), or 3 hours (during other than Cooper
Notification's normal business hours), from initial notification of problem to Cooper Notification by the Customer.
Level 2: 24 hours.
Level 3: 72 hours.
Page 7
Appendix 8
Enhanced Maintenance and Support Services [Only applicable if purchased in App A Section D]
NOTE: Enhanced Maintenance and Support Services applicable only if elected by Customer in accordance with Section D of Appendix A, Section D to the Agreement
SECTION 1: Statement of Work
The Customer has requested additional support services related to the Roam Secure Aled Network (RSAN). Section D of Appendix A to the Agreement provides for
certain Support Fees and standard Support Services, and additional services.
As part of the Enhanced Maintenance and Support Services, Cooper Notification shall make several contacts available to the Customer. as follows:
Primary Technical Contact: Caroline Wates
Primary Number: 732-272-9190
Primary email: caroline.wates@cooperindust(ies.00m
Secondary Technical Contact: Michael Rudy
Primary Number: 732-272-9191
Primary email: michael.rudy@coopefindustries,com
Lead Account Contact: Fabian Escalante
Primary Number: 949-940-6428
Primary email: fabian.escalante@cooperindustries.com
During Cooper Notification's normal business hours (i.e., Monday through Friday from 8:30 AM EST to 5:30 PM EST), Customer shall use the primary email address to
contact an individual, and/or the primary number. For support after normal business hours, on weekends and on holidays, Customer shall call 703-294-6768 extension
262 or e-mail suppod@roamsecure.net.
SECTION 2, Summary of Enhanced Maintenance and Support:
General on -site support retainer:
One-year support retainer
Support personnel for level 1, 2 and 3 types of incidents will be available
Reconfigure RSAN servers due to changes in Customer's network
Provide technical advice and support regarding the effective and
efficient operation of the RSAN software
• Includes original [insert Base Support Hours] hours of support, plus an additional fifty (50) hours of support per year (Support Hours)
• Includes up to total Support Hours of phone and/or email support per year
• Additional calls/email requests in excess of Support Hours shall be billed at the then -current rate published in Cooper Notification's Commercial Price List,
billed in minimum half-hour increments, plus Travel Expenses.
• Includes twelve day -long, or 24 half -day, site visits per year to resolve reported problems
• Each day -long site visit up to eight hours each, and each half -day site visit up to four hours each.
• Additional support onsite or off -site including visits and hours beyond original 12 day -long or 24 half -day visits, shall be
billed at the then -current rate published in Cooper Notification's Commercial Price List, billed in minimum half-hour increments, plus Travel Expenses.
Standard Updates performed on -site:
Installation, configuration and testing of standard Updates to the primary and back-ups servers on -site or via remote access are included.
Update installation, configuration and testing is estimated to take approximately 4-6 hours, the cost for such time is included.
Package includes up to four Updates per year.
This Appendix B shall remain valid until superseded by a revised addendum mutually agreed upon in writing by both parties,
Page 8
Appendix C
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Page 9
Appendix D
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Page 10
RECEIVED RE . CEIVED
MAY 2 9 2012 MAY 2 4 2012
CnY CLERICS OFRCE STAFF REPORT CITY ADMINISTRATION
INFORMATION TECHNOLOGY DEPARTMENT
DATE: May 15, 2012
TO: Honorable Mayor and City Council
FROM: Carlos Fandino, Director of Light& Powerl �-23-,-,
RE: ELECTRONIC NOTIFICATION SYSTEM
Purpose:
The Informatio n Technology Department recommends implementing a new electronic
notification system as a hosted solution by Cooper Notification, Inc. The annual cost of the
notification system is $13,500 for the first five years, and it will drop to $11,000 per year for
all consecutive years.
The new electronic notification system will replace the existing Reverse 911 system used by
the Police Department, as well as expand the notification services provided to the business
and residential communities. The new system will provide emergency and informational
notifications in the form of emails, text messages, social media feeds, phone calls, and
faxes.
Fiscal Impact:
The funds to implement the City's business phone system were included in the current fiscal
year budget.
Recommendation:
It is recommended that the City Council approve the issuance of a purchase order to
Cooper Notification, Inc. for the 5-year term.
DO:ay
Attachment
c: City Clerk Office
Andrei Yermakov
Document Control
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: May 15, 2012
TO: Carlos Fandino, Director of Light & Power
FROM: Willard G. Yamaguchi, Chief Deputy City Attorney
RE: Cooper Notification, Inc.
I have received and reviewed the Memorandum dated May 9, 2012, and
the attachments thereto.
I have the following suggested changes:
Page 2, Section E5 should read:
In addition, Cooper Notification or Customer may terminate this
Agreement at any time for any reason upon thirty (30) days
written notice. In the event Cooper Notification, or Customer,
within one (1) year from Effective Date, terminates this
Agreement pursuant to this Section E5, Cooper Notification
shall promptly refund to Customer a pro -rated portion of the
License Fees paid by Customer, and a pro -rated portion of any
pre -paid Support Fees based upon the unexpired period of the
Maintenance Team.
Otherwise the Software License Agreement is approved as to form.
WY: em
Yermakov, Andrei
From:
Yamaguchi, Willard
Sent:
Wednesday, May 23, 2012 03:24 IPM
To:
Yermakov, Andrei
Cc:
Muro, Evangelina
Subject:
FW: SLA
Attachments:
Software License Agreement - City of Vernon-5-16-12.docx
I believe the paragraph should read as follows:
In addition, Cooper Notification ma terminate this
notice to Customer.
written
In the event Cooper Notification, within the first year from the
Effective Date, terminates this Agreement pursuant to this Section E5, Cooper Notification shall promptly refund to
Customer a pro -rated portion of the License Fees paid by Customer for the first period, and a pro -rated portion of any pre-
paid Support Fees based upon the unexpired period of the Maintenance Term. In addition, in the event either party
terminates this Agreement pursuant to this Section E5 after the first year, Cooper Notification shall promptly refund to
Customer a pro -rated portion of the License Fees paid by Customer, and a pro -rated portion of any pre -paid Support Fees
based upon the unexpired period of the Maintenance Term.
I think this should satisfy Cooper as we are in the contract for a minimum of one year in order for them to recoup their
costs and we can get out with or without cause.
From: Yermakov, Andrei
Sent: Tuesday, May 22, 2012 4:31 PM
To: Yamaguchi, Willard; Muro, Evangelina
Subject: FW: SLA
Please review the changes by Cooper Notification, Inc.
From: Escalante, Fabian [mailto: Fabian. Escalante(cbcool2erindustries.com
Sent: Tuesday, May 22, 2012 16:22
To: Yermakov, Andrei
Subject: RE: SLA
Andrei,
I believe this will meet your requirements. If this looks good to you, then please accept the recommended changes
within the document. We can then start the signature process.
Thanks Andrei
Fabian Escalante
Cooper Notification
Systems Sales Manager
Office: (732) 272-9185 / (949) 347-0575
Mobile: (949) 940-6428
fabian.escalanteO-c000erindustries.com
www.coopernotification.com
From: Yermakov, Andrei [mailto:Avermakov(&ci.vernon.ca.us
Sent: Monday, May 21, 2012 3:07 PM
To: Escalante, Fabian
Subject: FW: SLA
Importance: High
Fabian,
Please check with your finance department if you can make the recommended changes.
Thanks,
Andrei
From: Muro, Evangelina
Sent: Monday, May 21, 2012 14:53
To: Yermakov, Andrei
Subject: FW: SLA
Importance: High
Andrei,
Please see Willard's comments below.
From. Yamaguchi, Willard
Sent: Monday, May 21, 2012 2:50 PM
To: Muro, Evangelina
Subject: FW: SLA
Importance: High
In the current form, Vernon cannot terminate the agreement until after one year unless there is some material breach. We
can stay in the agreement for a minimum of one year, but be allowed to terminate with 30 days notice after one year, with
or without cause/reason, similar to Cooper.
From: Muro, Evangelina
Sent: Thursday, May 17, 2012 3:58 PM
To: Yamaguchi, Willard
Subject: FW: SLA
Importance: High
Willard,
Please see the email correspondence below from Fabian Escalante at Cooper in regards to the revisions
requested to the agreement. I have attached a copy of the approved as to form memorandum which indicates
what you wanted the agreement to say.
Please review and advise if the revisions made by Cooper are acceptable. Also please let me know if you
need anything else to complete the review.
Thanks.
Eva hfuro
City Attorney Dept., City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Work: (323) 583-8811 x 273
Fax: (323) 826-1438
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may
contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering
it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained
in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately
notify the sender. Please destroy the original transmission and its attachments without reading or saving in any manner.
From: Yermakov, Andrei
Sent: Thursday, May 17, 2012 3:51 PM
To: Muro, Evangelina
Cc: Hunter, Audra
Subject: FW: SLA
Eva,
Please check with Willard if the amended agreement would meet the City requirements.
Thank you,
Andrei
From: Escalante, Fabian rmailto:Fabian.Escalante(acooi)erindustries.com1
Sent: Thursday, May 17, 2012 14:25
To: Yermakov, Andrei
Subject: RE: SLA
Andrei,
I received a response from our finance department regarding your recommended changes. As I indicated yesterday, we
cannot cancel during the V year because of all the work we put into getting a system operational; however, a customer
can cancel any time after the Vt year. The attached has some language changes which should be more in your favor;
however, the first year requirement cannot be removed. I hope this is okay with you and your team.
Thanks Andrei. Let me know what you think.
Fabian Escalante
Cooper Notification
Systems Sales Manager
Office: (732) 272-9185 / (949) 347-0575
Mobile: (949) 940-6428
fabian.escalante(cDcooperindustries.com
www.coopernotification.com
From: Escalante, Fabian rmalito:Fablan.Escalante(&coor)erindustries.com1
Sent: Wednesday, May 16, 2012 15:21
To: Yermakov, Andrei
Subject: RE: SLA
Andrei,
I have forwarded your change request to our VP of Finance to review. Because of the work required up front to
configure and host your system, particularly in your case with the utility system integration, typically we require the
customer to complete I full year of service before a contract can be terminated. The customer can then cancel any time
after the first year. This is what I have usually seen as acceptable language to all parties but nonetheless, I've forwarded
for review by our people. I'll let you know as soon as I have an answer.
Thanks Andrei,
Fabian Escalante
Cooper Notification
Systems Sales Manager
Office: (732) 272-9185 / (949) 347-0575
Mobile: (949) 940-6428
fabian.escalanteacooperindustries.com
www.coopernotification.com
From: Yermakov, Andrei rmailto:Avermakovc@ci.vernon.ca.usI
Sent: Wednesday, May 16, 2012 11:23 AM
To: Escalante, Fabian
Subject: RE: SLA
Hi Fabian,
Attached is the suggested change to the agreement from our City Attorney's Office. Please advise if you can
accommodate that modification.
Thanks,
Andrei
From: Escalante, Fabian rmailto:Fabian.Escalante(cbcooL)erindustries.com1
Sent: Thursday, May 10, 2012 07:10
To: Yermakov, Andrei
Cc: Miller, Jared
Subject: RE: SLA
Thanks Andrei.
Fabian Escalante
Cooper Notification
Systems Sales Manager
Office: (732) 272-9185 / (949) 347-0575
Mobile: (949) 940-6428
fabian.escalante0coor)erindustries.com
www.cooi)ernotification.com
From: Yermakov, Andrei rmailto:&vermakovC&ci.vernon.ca.usI
Sent: Thursday, May 10, 2012 7:09 AM
To: Escalante, Fabian
Cc: Miller, Jared
Subject: RE: SLA
Hi Fabian,
I haven't heard anything yet. I will check with our legal department.
Thanks,
Andrei
From: Escalante, Fabian rmailto:Fabian.Escalante(cbcooperindustries.comI
Sent: Wednesday, May 09, 2012 18:40
To: Yermakov, Andrei
Subject: SLA
Andrei,
I hope you are having a good week. Do you have any status on the SLA review process? Let me know if I can
assist in this effort in any way.
Thanks Andrei,
Fabian Escalante
Cooper Notification
Systems Sales Manager
Office: (732) 272-9185 / (949) 347-0575
Mobile: (949) 940-6428
fabian.escalanteO-COODerindustries.com
www.cooDernotification.com
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it may contain
confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended
recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this
transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender. Please destroy
the original transmission and its attachments without reading or saving in any manner.