HomeMy WebLinkAboutPowedetails, LLC Software Service Agreement - 2022 05 25 POWERDETAILS, LLC
SOFTWARE AS A SERVICE AGREEMENT
THIS SOFTWARE AS A SERVICE AGREEMENT ("Agreement") is entered into by and
between POWERDETAILS, LLC ("Vendor") and GV1 o(' ILJ;h�c� 'SCustomer"). The term
("Term") of this Agreement shall begin on the date on which bo h have executed it
("Effective Date").
Recitals
WHEREAS, Vendor provides services ("Vendor Services") using Vendor's software
("Vendor Software") and access-controlled website ("Vendor Site") which Customer desires to
use for electronic scheduling and administration of off-duty police details; and
WHEREAS, Customer desires to obtain a subscription ("Customer Subscription") for
certain Vendor Services in accordance with the provisions of (a) this Agreement and (b) one or
more quotation sheets (each a "Quotation Sheet")entered into by and between the parties,each
of which shall specify the Vendor Services included in each Customer Subscription ("Subscription
Services"), the term of the Customer Subscription (each a "Subscription Term") and the fees
applicable to the Customer Subscription ("Subscription Fees").
NOW, THEREFORE, in consideration of the parties' mutual promises contained in this
Agreement, the parties, intending to be legally bound, agree as follows:
1. Use of Subscription Services.
a) Subject to the terms and conditions of this Agreement, Vendor grants Customer and
the users ("Users") given access to the Services by Customer the limited, non-exclusive, non-
sublicensable right to use the Subscription Services included within the Customer Subscription
during the Subscription Term.
b) Neither Customer nor any User will engage in any of the following actions(collectively,
the "Restricted Activities"): (i) modify, translate, or create derivative works of the Vendor
Services, Vendor Software, Vendor Site or any other technology used to provide the Vendor
Services (collectively, "Vendor Technology"); (ii) reverse engineer, decompile, disassemble, or
otherwise attempt to derive any of the Vendor Software's source code; (iii) sublicense, resell or
distribute any Vendor Technology in any manner or form; (iv) share login credentials for the
Subscription Services other than with permitted Users; (v) "frame" or "mirror" the Vendor
Services or Vendor Site; or (vi) submit to or create within the Vendor Services any data or other
materials(collectively "Restricted Materials")that (A) are illegal or illegally created, obtained or
submitted, (B) infringe upon or otherwise violate the rights of any third party, (C) are not
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permitted, under applicable laws, regulations,contractual obligations or Customer policies,to be
disclosed by Customer to Vendor or the Users.
c) Customer is responsible for establishing, and maintaining the security and
confidentiality of, all User usernames and passwords and for all activities that occur under
Customer's User accounts. Customer agrees to notify Vendor immediately of any unauthorized
access to or use of any User account or other known or suspected breach of security.
d) Customer will have sole responsibility, and Vendor assumes no responsibility, for
the data submitted to or created within the Vendor Services by Customer or any User
(collectively, "Customer Data"). Without limiting the foregoing, if Vendor is notified that any
Customer Data might violate applicable law or third-party rights, it may provide notice to
Customer and remove such Customer Data from the Service until the potential violation is
resolved.
e) Customer shall comply with all applicable laws in using the Vendor Services.
f) Vendor may,from time to time,adopt and update rules for permitted and appropriate
use of the Vendor Services. Any use of the Subscription Services by Customer and Customer's
Users shall be subject to such rules.
g) Vendor reserves the right, in addition to any other remedies available to it,to suspend
any User account or User activity if Vendor believes such account or activity (i) is the source of
disruption of the Vendor Services or harm to the systems or infrastructure of Vendor or any third
party, (ii) is being used to conduct illegal activity or activity that could potentially expose Vendor
to legal liability, or (ii) otherwise materially violates the terms and conditions set forth in this
Agreement or any rules adopted by Vendor with respect to the use of the Vendor Services.
h) The Vendor Services are subject to modification from time to time at Vendor's sole
discretion; provided that any such modification will not degrade the functionality of the
Subscription Services in any material manner, except as required by applicable law. Vendor will
use reasonable efforts to give Customer prior written notice of any material modification. To
the extent of any conflict between this Agreement, the Quotation Sheet, or the terms and
conditions of the online "Software as a Service Agreement (SAAS)" posted on the Vendor's
website and referenced in the Quotation Sheet,this Agreement shall control.
2. Fees. Subscription Fees for each Customer Subscription shall be payable in the amounts
and upon the terms specified in the Quotation Sheet. Except as expressly provided in this
Agreement, Subscription Fees are nonrefundable. Late payments shall be governed by the Local
Government Prompt Payment Act, s. 218.70 et. seq., Florida Statutes.
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3. Customer Data.
a) As between Customer and Vendor, all Customer Data submitted to the Vendor
Services by Customer or by Customer's Users will remain the sole property of Customer or such
Users. Customer grants to Vendor a non-exclusive;perpetual license to use, copy, store,transmit
and display Customer Data to the extent reasonably necessary to provide, maintain and improve
the Vendor Services.
b) Except as authorized by Customer or required under applicable law, Vendor shall not
disclose any Customer Data to anyone other than Customer's Users and Vendor's employees and
subcontractors who are bound by confidentiality obligations and who need to know the same to
perform Vendor's obligations hereunder. The confidentiality obligations set forth in this
paragraph do not apply to Customer Data which is already in the possession of Vendor and not
subject to a confidentiality obligation to Customer, independently developed by Vendor, publicly
disclosed through no fault of Vendor or rightfully received by Vendor from a third party that is
not under any obligation to keep such information confidential.
c) Vendor shall deliver to Customer all Customer Data in a commonly used digital format
upon the termination of this Agreement. Vendor shall retain Customer Data until the Vendor
provides the Customer Data as described herein following termination of the Agreement.
d) To the extent Vendor is deemed to be a third-party agency under Section 501.171,
Florida Statutes, Vendor shall notify the City as soon as possible, but no later than ten (10)
business days following the determination of any breach or potential breach of personal and
confidential data held on the City's behalf. Further, Vendor shall provide the City with all
information necessary to comply with notice requirements of Section 501.171, Florida Statutes,
and shall, at its own cost and expense, provide notices on behalf of the City to affected parties as
provided in Section 501.171, Florida Statutes. Vendor shall also at its own cost and expense
implement measures deemed appropriate by the City to avoid or mitigate potential injury to any
person due to a breach or potential breach of personal and confidential data and indemnify and
hold harmless the City for the cost of the same. Vendor shall cause each of its subcontractors
having access to personal information as defined in Section 501.171, Florida Statutes, to comply
with the provisions of this Section.
4. Ownership of Vendor Technology. Vendor retains all rights in the Vendor Technology,
including,without limitation, any intellectual property developed by Vendor during the course of
its performance of any services for Customer. Except as expressly provided in this Agreement, no
license or other right is granted to Customer or its Users in the Vendor Technology. The Vendor
name, the Vendor logo, and the product names associated with the Vendor Technology are
trademarks of Vendor or third parties, and they may not be used without Vendor's prior written
consent.
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5. Indemnification.
a) Vendor will defend, indemnify, and hold Customer (and its Users, officers,
directors, employees and agents) harmless from and against all costs, liabilities, losses, and
expenses(including reasonable attorneys' fees) (collectively, "Losses") incurred in connection
with any third party claim, suit, action, or proceeding arising from the actual or alleged
infringement of any United States copyright, patent, trademark, or misappropriation of a trade
secret by the Subscription Services. In case of such a claim,Vendor may, in its sole discretion and
at its sole cost, procure a license that. will protect Customer against such claim, replace the
Subscription Services with a comparable non infringing service, or terminate the Subscription
Service without fault, provided that in case of such a termination, Customer will receive a pro-
rata refund of the applicable Subscription Fees. The obligations contained in this paragraph will
not apply to the extent that the alleged infringement would not exist without: (i) modification of
any Vendor Technology by Customer or any User, (ii) combination by Customer or any User of
any Vendor Technology with any third party technology, (iii) continued use of any Vendor
Technology by Customer or any User more than thirty (30) days after Customer is notified of the
alleged infringement or modifications that would have avoided the alleged infringement, or. (iv)
use by Customer or any User of any Vendor Techno!ogy in breach of this Agreement.
b) Customer will defend, indemnify, and hold Vendor (and its officers, directors,
employees and agents) harmless from and against all Losses incurred in connection with any
Restricted Activities, subject to the limitations of s. 768.28, Florida Statutes.
C) In case of any claim that is subject to indemnification under this Agreement, the
party that is indemnified ("Indemnitee"). will. provide the indemnifying party ("Indemnitor")
reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own
expense, any demand, action, or suit on any claim subject to indemnification under this
Agreement. Each party will cooperate in,good faith with the other to facilitate the defense of any
such claim and will tender the defense and settlement of any action or proceeding covered by
this Section to the Indemnitor upon request.
6. Disclaimers and Limitations.
a) THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND
EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE OR NONINFRINGEM ENT.THE VENDOR
TECHNOLOGY IS PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS. VENDOR
DOES NOT WARRANT THAT USE OF THE VENDOR TECHNOLOGY WILL BE ERROR-FREE OR
UNINTERRUPTED.
b) Except with respect to liability for Restricted Activities or third party claims of
infringement of intellectual property rights, and any express obligations under this Agreement to
provide indemnification with respect thereto, in no event will either party's aggregate liability
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exceed the coverage limits of applicable insurance. In no event will either party be liable for any
indirect, special, incidental, consequential damages of any type or kind (including, without
limitation, loss of data, revenue, profits, use or other economic advantage).
C) If the Subscription Services are impacted by any incident resulting in data loss,
Vendor will take commercially reasonable steps to restore the Customer Data from the most
recent existing, unaffected backup available. Vendor makes no representations or warranties
regarding its ability to recover any Customer Data lost, and Customer acknowledges that it may
obtain a back-up copy of Customer Data by written request to Vendor. Vendor agrees that it
shall backup Customer Data at least on a daily basis and retain such backups indefinitely until
Customer Data is transferred to the Customer upon termination of the Agreement, which shall
be stored in regionally diverse locations to mitigate the impact of a regional disaster. Vendor
shall provide,the Vendor Software in such a manner that Customer's users will be prohibited
from deleting data from the software. In addition, Vendor agrees that it shall be prohibited
from purging or deleting any Customer data from the database.
7. Term and Termination
a) Except as renewed by mutual agreement of the parties or terminated pursuant to
this Section 7, (i) the Term of this Agreement shall begin on the Effective Date and end on the
first anniversary of the Effective Date, and (ii). the Subscription Term of each Customer
Subscription shall be as set forth in the Quotation Sheet for the Subscription.
b) Either party may terminate this Agreement and any Quotation Sheet at any time
in the event that the other party (i) breaches an-y material term of this Agreement or such
Quotation Sheet and fails to cure such breach within thirty(30) days after written notice thereof;
or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or
permits the appointment of a receiver for its business or assets, becomes subject to any
proceeding under any bankruptcy or insolvency law, or is wound up or liquidated, voluntarily or
otherwise.
C) Upon termination of this Agreement for any reason,Customer and Users shall cease
all use of Vendor Services and, except as provided in Section 8 (Survival of Provisions), all rights
and obligations of the parties hereunder, apart from Customer's accrued financial obligations,
shall automatically cease. Notwithstanding the foregoing, termination shall not affect or
prejudice any right or remedy that a party possesses with respect to any breach of this Agreement
occurring on or before the date of termination.
8. Survival of Provisions. The following Sections, and all defined terms used therein, shall
survive termination: all definitions, 1(b)(Use of Subscription Services), 3 (Customer Data), 4
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(Ownership of Vendor Technology), 5 (Indemnification), 6 (Disclaimers and Limitations), 7 (Term
and Termination), 8 (Survival of Provisions), 9 (Notice), and 10 (Miscellaneous).
9. Notice. Any notice or other communications required by this Agreement shall be in
writing and sent as follows: Vendor shall provide all formal contract notices, such as
termination, notices of default, and notices of force majeure events, in writing and either by
personal delivery, overnight courier services, or by registered or certified mail and U.S. Mail,
postage prepaid, addressed to the City Manager. Any Notice given as provided herein shall be
deemed received as follows:if delivered by personal service,on the date so delivered; if delivered
to an overnight courier service, on the business day immediately following delivery to such
service; and if mailed, on the third business day after mailing. Day-to-day correspondence
relating to the software may be sent to _ Customer by email. Customer may give notice to
Vendor by email to contracts@powerdetails.com. A party may, by giving notice, change its
applicable address, email, or other contact information.
10. Insurance. Liability Amounts. During the term of this Agreement, Vendor shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a.. Cyber Liability Insurance. Information Security/Cyber Liability Insurance
must include: Internet Media Liability including cloud computing and mobile
devices, for protection of private or confidential information whether
electronic or non-electronic, network security and privacy; privacy against
liability for system attacks, digital asset loss, denial or loss of service,
introduction, implantation or spread of malicious software code, security
breach, unauthorized access and use; including regulatory action expenses;
and notification and credit monitoring expenses with at least the minimum
limits of not less than $2,000,000 per claim, $2,000,000 aggregate.
Coverage must be maintained in effect during the period of the Agreement
and for not less than two (2) years after termination or completion of the
Agreement. Information/Cyber Liability Insurance must be written on a
"claims-made" basis covering Vendor, its employees, subcontractors and
agents for expenses, claims and losses resulting from wrongful acts
committed in the performance of, or failure to perform, all services under
this Agreement, including, without limitation, claims, demand and any other
payments related to electronic or physical security, breaches of
confidentiality and invasion of or breaches of privacy
b. General Liability. Vendor shall maintain comprehensive general liability
insurance in the amount of$1,000,000.00 as the combined single limit for
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each occurrence and $2,000,000 in the aggregate, with a deductible no
greater than $5,000.00, unless a higher deductible is pre-approved by the
City Manager,to protect Vendor from claims of property damages and
personal injury which may arise from any Services performed under this
Agreement,whether such Services are performed by Vendor or by anyone
directly employed by or contracting with Vendor.
c. Automobile Liability. Vendor shall maintain comprehensive automobile
liability insurance in the amount of$1,000,000 per occurrence combined
single limit for bodily injury, including wrongful death, and property damage,
which may arise from the ownership, use or maintenance of owned and non-
owned automobiles, including rented automobiles, whether such operations
be by Vendor or by anyone directly or indirectly employed by Vendor.
d. Workers' Compensation.Vendor shall maintain, during the life of this
Agreement, adequate Workers' Compensation Insurance and Employers'
Liability Insurance in at least such amounts as are required by law for all of its
employees performing Work for the City pursuant to this Agreement.
Current, valid insurance policies meeting the requirements herein identified shall be
maintained during the term of this Agreement. Renewal certificates shall be sent to the City
thirty (30) days prior to any expiration date.There shall also be a thirty (30) day advance
written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage.The City shall be an additional named insured on stipulated insurance
policies, except professional liability and worker's compensation policies. In the event that
Vendor shall fail to comply with the foregoing requirement,the City is authorized, but in no
event shall be obligated,to purchase such insurance, and the City may bill Vendor.Vendor shall
immediately forward funds to the City in full payment for said insurance. It is expressly agreed
that neither the provision of the insurance referred.to in this Agreement nor the City's
acceptance of the terms, conditions or amounts of any insurance policy shall be deemed a
warranty or representation as to adequacy of such coverage. All insurance coverage shall be
with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and rating service as
reasonably determined by the City Manager) and licensed by the State of Florida to engage in
the business of writing of insurance or provided through the London Market for Professional
Liability Insurance. Vendor shall cause its insurance carriers, prior to the effective date of this
agreement to furnish insurance certificates specifying the types and amounts of coverage in
effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance
under such policies will be canceled without thirty(30) days' prior written notice to the City in
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compliance with other provisions of this Agreement. If the City has any objection to the
coverage afforded by or other provision of the insurance required to be purchased and
maintained by Vendor in accordance with this Article on the basis of its not complying with the
Agreement, the City shall notify Vendor in writing thereof within thirty (30) days of the date of
delivery of such certificates to the City. For all Work performed pursuant to this Agreement,
Vendor shall continuously maintain such insurance in the amounts, type and quality as required
by the Agreement.
11. Miscellaneous
a) Choice of Law and Venue.This Agreement will be interpreted in accordance with the
laws of the State of Florida and applicable federal law, without regard to conflict of laws
principles. Venue for any state action or litigation shall be Seminole County, Florida. Venue for
any federal action or litigation shall be Orlando, Florida.
b) Severability. If any provision of this Agreement is held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, the invalid, illegal, or unenforceable
provision will not affect any other provisions, and this Agreement will be construed as if the
invalid, illegal, or unenforceable provision is severed and deleted from this Agreement.
c) No Agency. No joint venture, partnership, employment, or agency relationship exists
between Customer and Vendor as a result of this Agreement or use of any Vendor Services.
d) No Waiver. The failure of a party to enforce any right or provision in this Agreement
will not constitute a waiver of such right or provision.
e) Force Majeure. If the performance of this Agreement by either party (other than the
payment of Subscription Fees by Customer) is prevented, hindered, delayed or otherwise made
impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes,
act of God or any other causes beyond the control of such party,that party will be excused from
such performance to the extent that it is prevented, hindered or delayed by such causes,
provided that prompt notice of such failure to perform or delay is given by such party to the other
and each of the parties hereunto shall be diligent in attempting to remove such cause or causes
of the Force Majeure Event. If any circumstance of a Force Majeure Event remains in effect for
sixty days, either party may terminate this Agreement.
f) Authority. Each of the undersigned represents and warrants that he or she has full
legal authority to bind the party for which he or she purports to execute this Agreement by
signing below.
g) Assignment. This Agreement may not be assigned by Customer without the prior
written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an
acquirer of all or substantially all of Vendor's assets involved in the operations relevant to this
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Agreement, or (iii) a successor by merger or other combination. Any purported assignment in
violation of this Section will be void. This Agreement may be enforced by and is binding on
permitted successors and assigns.
h) Third-Party Beneficiaries. There are no third-party beneficiaries under this
Agreement.
I) Entire Agreement. This Agreement and any Quotation Sheets in effect between the
parties comprise,together,the entire agreement between Customer and Vendor and supersede
all prior or contemporaneous negotiations, discussions or agreements, whether written or oral,
between the parties regarding the subject matter contained herein. No amendment or
modification to this Agreement shall.be binding unless in writing and signed by an authorized
representative of each party.
j) Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of
Vendor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record
whether in the possession or control of the Customer or Vendor. Said record, document,
computerized information and program, audio or video tape, photograph, or other writing of
Vendor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed
without the specific written approval of the Customer's City Manager. Upon request by the
Customer,Vendor shall promptly supply copies of said public records to the Customer.All books,
cards, registers, receipts, documents, and other papers in connection with this Agreement shall
at any and all reasonable times during the normal working hours of Vendor be open and freely
exhibited to the Customer for the purpose of examination and/or audit. Failure by Vendor to
grant such access and comply with public records laws and/or requests shall be grounds for
immediate unilateral cancellation of this Agreement by the Customer upon delivery of a written
notice of cancellation. If Vendor fails to comply with this Section, and the Customer must enforce
this Section, or the Customer suffers a third party award of attorney's fees and/or damages for
violating Chapter 119, Florida Statutes, due to Vendor's failure to comply with this Section, the
Customer shall collect from Vendor prevailing party attorney's fees and costs, and any damages
incurred by the City, for enforcing this Section against Vendor. And, if applicable, the Customer
shall also be entitled to reimbursement of all attorneys' fees and damages which the Customer
had to pay a third party because of the Vendor's failure to comply with this Section. The terms
and conditions set forth in this Section shall survive the termination of this Agreement. The
Vendor acknowledges that the Customer is a Florida municipal corporation and subject to the
Florida Public Records Law.Vendor agrees that to the extent any document produced by Vendor
under this Agreement constitutes a Public Record; Vendor shall comply with the Florida Public
Records Law.
k) E-Verify. Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021,
Contractors, which shall include Vendor, shall register with and use the U.S. Department of
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Homeland Security's E-Verify system, https:He-verify.uscis.gov/emp, to verify the work
authorization status of all employees hired on and after January 1, 2021,
1 Subcontractors
a) Vendor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during
the term of this Agreement.
b) Vendor shall obtain from all such subcontractors an affidavit stating the
subcontractor does not employ, contract with, or subcontract with an
unauthorized alien, as defined in section 448.095, Florida Statutes.
c) Vendor shall provide a copy of all subcontractor affidavits to the City upon
receipt and shall maintain a copy for the duration of the Agreement.
2 Vendor must provide evidence of compliance with section 448.095, Florida
Statutes. Evidence shall consist of an affidavit from Vendor stating all employees
hired on and after January 1, 2021 have had their work authorization status verified
through the E-Verify system and a copy of their proof of registration in the E-Verify
system.
3 Failure to comply with this provision is a material breach of the Agreement, and
shall result in the immediate termination of the Agreement without penalty to the
City. Vendor shall be liable for all costs incurred by the City securing a replacement
Agreement, including but not limited to, any increased costs for the same services,
any costs due to delay, and rebidding costs, if applicable.
IN WITNESS WHEREOF,the parties hereby execute this Agreement to be effective on the
date on which both parties have signed it.
VENDOR CUSTOMER
POWERDETAILS, LLC
By: By:
i
Title: President Title: i' IC
Date: 5/20/2022 Date: k--05- 2-OZ2--
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