12-045 Consultant Services Agreement for Notification Services, Everbridge, Inc~everbridge 500 1' Brand Blvd. Suite 1000
Glendale CA 91:?03 USA
tel: 888.366 49:U
lax: 818.464 2299
-·-·--·-··-~---~-----------··-·-~---·-------·~·------~~---------------
Prepared Rick Kitson
for: The Ci!y of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 1n-32a2
rlckk@cupertlno.org
Contract Summary lnfO-rmation
Contract Period: 1 Year
Contract Star! Dato: July 1, 2014
Contract End Date: June 30, 2015
Annual Subscription
: Prod.!!£!
' Aware Annual Fee
Smar!GIS • Custom Layers Annual Fee (up to 5 Layers)
, Everbrldge SmartGIS-Unllmlled Annual Fee
1. Additional rates apply for all International calls.
Quotation Date:
Quote Expiration Oat&:
Rop:
May29, 2014
June 27, 2014
Elhel Olague
QUOTATION
Quote Number: 00011730
Confldentlal
1 of2
(818) 230-9752
e!hel.olague@everbrldgemall.com
Aware Members up to: 1,000
SmartGIS Households up to: 24,000
Fee_Tl(f?O illll list Price
Recurring $18,995.00
Recurring $'10,000.00 .
Rectming $24.100.00 .
Pricing summary:
Initial Year One-time Fees and Year One Annual Rocurrlr1g Fees:
One-time Implementation and Set Up Fees:
Total YiJatOrui Foos:
Total Prlc1!
$0.00
$600.00
$10,000.00
$10,500.00
$0.00 !
$10,500.()0
2. Quote subject lo terms & conditions of the Everbridge Services Agreement
3. Subject lo salas taxes where applicable.
4. Except for currency designation, the supplemental notes below, If any, supplied in this Quote are for Informational purposes and not
Intended to be legally binding or override negotlaled language of !he Everbrldge Inc. Service Agreement.
Supplemental Noles:
-This quole allows Iha City of Cupaliino, CA lo exercise !heir optional year 2 of Iha 4 written Into the original contracl.
~everbridge
Authorized by Everbrldge:
.,,, .. ~-
n~~L~l!f::!ld
Print Name v
500 N Brand Blvd. Suite 1000
Glendale. CA 91203 USA
t:o/t"l&"t
Date
c;__,..
1.fJ. -:1-H"""'" c. --:n-uo--
\'el: 888.366.491i
faJC 818.484.2299
www.everb1ldge.com
QUOTATION
Quote N11mber: 00011730
Confidential
2of2
AGREEMENT BETWEEN THE CITY of CUPERTINO AND
EVERBRIDGEFOR CONSULTANT SERVICIES FOR NOTIFICATION
4 V'RVTCR
THIS AGREEMENT, for reference dated April 24, 2012, is by and between
CITY of CUPS TINo, a municipal corporation (hereinafter referred to as "City"), and
VIBI-, Inc., a Delaware corporation, whose address is 505 North Brand Street,
Suite 700, Glendale!, CA 91203 hereinafter referred to as "Consultant"), and is made with
reference to the following:
RECITALS
A. City is municipal corporation duly organized and validly existing under
the laws ofthe State of Calif rni . with the power to -carry on its business as it is now
being conducted under the Constitution and, the statutes of the State of California and the
Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to perform the
special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein,
D. City and Consultant desire to enter into an agreement for alert and
commiLmication services upon the terms and conditions herein..
NOW, THEREFORE, it is mutually agreed y. and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on May 1, 2012, and shall terminate
on June 30, 2017, unless terminated earlier as set forth herein,
2. SERVICES TO BE PE, RF0M1:
Consultant shall provide access to and use of the service set forth in Exhibit "B"
which is attached hereto and incorporated herein by this reference, in accordance with the
terms and conditions attached to Exhibit "B ", together with the terms and conditions set
forth herein..
3. COMPENSATION To CONSULTANT:
Consultant shall be compensated for .services performedl pt suant to this
Agreement in the amount set forth in Exhibit "A" which is attached hereto and
incorporated herein by this reference. Payment shall be made by cheeps drawn oil the
treasury of the City, to be takenen from the Public Affairs oft e (3300-6116) fund.
If the City exceeds the Member count as specified in Exhibit "A ", then. Consultant
reserves the right to a -lually review the Member usage and invoice the City as necessary
E -031 s1
at the current rates and the City shall pay within . o days of invoice. Fees for professional
services, if applicable, shall be set forth in a separate Statement of Wort ("SOW").
4. SERVICE AVAILA ILI Y9
Consultant shall make the service available for use by the City no later than June
l,ol.
5. STANDARD OF CAR:
Consultant agrees to perform all services hereunder in a mannerr commensurate
with the prevailing standards _oflife professionals in the San Francisco Bay Area and
agrees that all services shall be performed by qualified and experienced personnel who
are not employed by the City nor have any contractual relationship with City.
Consultant shall have no liability fore any unavailability of the service caused by
circumstances beyond verbridge's reasonable control, including without limitation, acts
of God, acts of government, flood, fire, earthquakes, civil wrest, acts ofterror, strifes or
other labor problems, computer, telecommunications, Internet service provider or hosting
facility failures or delays involving hardware, software or power systems, and network
intrusions or denial of service attack, in each case, which are not within verbridge's
possession or reasonable control. The service delivers messages for supported, contact
paths to the public private networks and carrriers, but cannot guarantee delivery of the
messages to the recipients. Final delivery of messages to recipients is dependent on and
is the responsibility of the designated public private networks o.r carriers,
INDEPENDENT PARTIES:
City and Consultant intend. that the relationship between them created by this
Agreement i
Consultant's employee or subcontractor on the basis of race, reli
consequential damages however caused and, whether in contract, tort or under any other
theory of liability, whether or not the party has been advised of the possibility of such
damage. Notwithstanding anything in this Agreement to the contrary, in no event shall
Consultant's aggregate liability, however arising out of or related to this Free ent,
whether in contract, tort or under any other theory of liability, exceed the total
compensation quoted for services perforrned pursuant to this Agreement for all five years
contemplated by Exhibit "A" to this Agreement, whether or not City has actually paid the
Consultant for Consultant's performance prior to the event giving rise to Consultant's
liability.
12. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall
furnish City with certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with
paragraphs 11 A, B, C, D and E. The certificates shall contain an endorsement stating that
the insurance is primary coverage. If the insuwance is cancelled or materially reduced in
coverage limits by the insurer, Consultant shall provide the City thirty days prior written
notice of the cancellation or reduction. IfConsultant's insurer cancels or reduces
Consultant's insurance without providing thirty clays' notice to Consultant, Consultant
shall provide the City written notice ofthe cancellation oar reduction Within 2 business
days of Consultant's receipt of such notice. It is agreed. that Consultant shall maintain in
force at all times during the performance of this Agreement all appropriate coverage of
insurance required by .this Agreement with Chubb insurance company or an insurance
company with a substantially similar A.M. Best Financial Strength rating that is licensed
to do insurance business in the State of Califomia, Endorsements naming the City as
additional insured shall be submitted with the insurance cer°tifi.cates.
A. COVERAGE
Cons- Ldtant shall maintain the following insurance coverage:
1. Wor ers' Comipensatlon:
Statutory coverage as required, by the State of California.
2) Liabilily:
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,0 0
each occurrence
1MUM
aggregate — all other
Property Damage: $1 00,000 each occurrence
250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of $1,000,5000 will be considered equivalent:
to the required minimum limits shove above.
3) Automotive:
Comprehensive automotive liability coverage in the following
minimum limits;
Bodily injury: $500,000 each occurrence
REar -0 1 1
Property Damage: $10 ,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
4) P7r fessional Liabili :
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Consultant in the
amount of at least $1,000,000.
B. SUBROGATIONWAIVER:
Consultant agrees that in the event of loss due to any of the perils for which
he/she has agreed to provide comprehensive general and automotive liability insurance,
Consultant shall loop solely to his/her insurance for recovery. Consultant hereby grants
to City, on behalf of .ny insurer providing comprehensive general and automotive
liability insurance to either Consultant or City with respect to the services of Consultant
herein, a waiver of any right to subrogation which any such insurer of said Consultant
may acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE To SECURE
If Consultant at any time during the terra hereof should fail to secure or maintain
the foregoing insurance, City, upon not less than tern 10 business clays prior written
notice to Consultant, shall be permitted to obtain such insurance in the Consultant's name
or as an agent of the Consultant and shall be reimbursed by the Consultant for the costs of
the insurance prenuurns computed from the date such insuwance goes into effect.
D. ADDITIONAL INSURE:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance coverages, except
any professional liability insurance, required by this Agreement. The naming of an
additional insured shall not affect any recovery to which such additional insured would
be entitled under this policy if not named as such additional insured, An additional
insured named herein shall not be held liable for any premium, deductible portion of any
loss, or expense of any nature on this policy or any extension thereof. Any other
insurance hey. d by an additional insured shall not be required to contribute anything
toward any loss or expense covered by the insurance provided by this policy,
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to
protect Consultant. Consultant is advised to confer with Consultant's insurance broker to
determine adequate coverage for Consultant.
13. CONFLICTIC of IN'T'EREST:
Consultant wzmTants that it is not a conflict of interest for Consultant to perform
the services required by this Agreement, Consultant may be required to fill out a conflict
of interest fonn ifthe services provided under this Agreement require Consultant to mai e
certain governmental decisions or serve in a staff capacity as defined- in Title 2, Division
6, Section 18700 of the California Code of Regulations,
14. PROHIBITION AGAINST TRANSFERS:
Except in the event of a sale of all or substantially all of its assets or controlling
RE3- 031812
interest, in which event, provided that the assignee agrees to provide the service without
significant loss of features or - functionality, thi Agreement may be assigned by
Consultant upon written notice to the City.neither party shall assign, sublease,
hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by
operation of law or otherwise, without prior written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed. Any attempt to do
so without said consent shall be null and void, and any assignee, sublessee, hypothecate
or transferee shall acquire no right or interest by reason of such attempted assignment,
hypothecation or transfer. However, claims for money by Consultant from City under
this Agreement may be assigned to a bank, trust company or other financial institution
without prior written consent. Written notice of such assignment shall be promptly
furnished to City by Consultant.
15, SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those subcontractors
whose names and resumes are attached to this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required
to carry general, automobile and professional liability insurance in reasonable conformity
to the insurance carried by Consultant. In addition, any work, or services subcontracted
hereunder shall be subject to each provision of this Agreement.
16. PERMITS AND LICE, NSES,
Consultant, t his /her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, certificates and licenses including, but not
limited to, a City Business License, that may be required in connection with the
performance ofservices hereunder,
17. RECORDS
Consultant shall maintain adequate records of services provided in sufficient
detail to permit an evaluation of services. All such records shall be maintained in
accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Not more than once 'per year, Consultant shall provide free access
to such boobs and records to the representatives of City or its designees at all proper
times during normal business hours and upon not less than ninety 90 days prior written
notice, and gives City the right to examine and audit sane, and to make transcripts
therefrom as necessary, and to allow inspection of all work, data, documents, proceedings
and activities related to this .Agreement. Such right of access shall be subject to the
execution of a mutually acceptable non - disclosure agreement. Such records, together
with supporting documents, shall be Dept separate from other doc- Lunents and records and
shall be maintained for a period of three years after receipt of final payment.
18. NOTICES:
All notices, demands, requests or approvals to be given ruder this Agreement
shall be given in writing and conclusively shall be deemed served when delivered
personally or on the second business clay after the deposit thereof in the United States
Mail, postage prepaid, registered or certified, addressed as hereinafter
REV 3 -8 181
0
provided.
All notices, demands, requests, or approvals from Consultant to City shall be
addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: City Manager's office
All notices, demands, requests, or approvals from City to Consultant shall be
addressed to Consultant t:
EVERBIRJDGE, INC.
505 North Brand. Street, Suite 700,
Glendale, CA 91203
Attn.: Chief Financial officer
19. TERMINATION:
In the event either party fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, such party shall be deemed in default in
the performance of this Agreement. If such default is not cured within thirty 30 days of
receipt ofwritten not*ce of default, specifying the aftwe o such default and. tl' steps
necessary to cure such default, the non - defaulting party may terminate the Agreement
forthwith by giving to .the defaulting party written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven days' prior written notice to Consultant as provided
herein. Upon termination of this Agreement, the pwlies agree that there will be no refund
ofservices fees paid., whether or not such service fees have been f' re i t r a, servicepp
term post termination.
20. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City.
1. CONFLICT of LAW:
This Agreement shad be interpreted under, and enforced by the laws of the State
of California excepting any choice of law rules which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the parties are subject to all
valid laws, orders, rules, and regulations of the authorities having jurisdiction over this
Agreement r the successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Santa Mara, State of California.
22. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any kind
pertaining to the services perforri -ied under this Agreement unless prior written approval
R E -o 1 81
has been secured from City to do otherwise.
3. WAIVER:
A waiver by either party of any breach of any tern -i, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of the same
or any other tern, covenmat, or condition contained herein, whether ofthe same or a
different character.
24. INTEGRATED CONTRACT:
This Agreement, together with the terms and conditions set forth in or attached to
Exhibit "B" represent the full and complete understanding of every find or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements
of whatsoever I ind or nature are merged herein. In the event of a conflict between the
terms and conditions of this Agreement and the tens and conditions of Exhibit "B ", the
terms and conditions of this Agreement shall control. No verbal agreement or implied
covenant shall be held to vary the provisions hereof. Any modification of this Agreement
will be effective only by written execution signed by both City and Consultant.
25. INSERTED PROVISIONS:
Each provision and clause required by lave to be inserted into the Agreement shall
be deemed to be enacted herein, and the Agreement shall be read and enforced as though
each were included herein. If through mistake or otherwise, any such provision is not
inserted or is not correctly inserted, the Agreement shall be amended to male such
insertion on application by either party.
6. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way af'f'ect; limit or amplify the terms or provisions of this
Agreement..
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT CITY of CI..JIERTII
A Municipal - Corporation
l
By B
Title ' , . T:
Date :E; t-( 12- D
REVSA3 -03181
RECOMMEND`] FOR APPROVAL.
B L Lr,
APPROVED AS TO FORM:
City m y
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EXHIBIT
Everbridge, Inc.
Bernice Agreement
This Service Agreement ("Agreement ") is entered into by and between Everbridge Inc. "E erbrld e" , and the City of Cupertino
Customer"), on March 1, 2012 (the "Effective Date"). Everbridge and Customer are each hereinafter sometimes referred to as
Party" and collectively, the "Parties."
THE PARTIES AGREE TO THE FOLLOWINGLOWIN TERMS AND CONDITIONS VEI NIN THE USE OF EVERBF II E'
SERVICE:
1. DEFINITIONS. As used herein, the following terms shall have the meanings ascribed to them as set forth below:
Everbridge Technology" includes, without limitation, the Software, all proprietary technology (including software, hardware,
products, processes, algorithms, user interfaces, know -how, techniques, designs, and other tangible or intangible technical
material or information) made available to Customer through the Service or otherwise in connection with this Agreement.
Appiicable Laver" means any domestic or foreign law (statutory, common, or otherwise), order, writ, injunction, decree, award,
stipulation, ordinance or administrative doctrine, ordinance, equitable principle, code, rule, regulation, executive order, request, or
other similar authority enacted, adopted, promulgated, or applied by any overnmental Body, each as amended including, without
limitation, the Telephone Consumer Privacy Act (TCPA, 47 USC Section 227) and implementing Federal Communications Rules
47 CFR 64.1200), the CAN -SPAM Act (15 USC Section 7701 et seq.) and the FCC's implementing rules (47 CFR Section
64.3100, with respect to communications to wireless devices) (47 CFR 64.3100 ), and the Federal Trade Commissicn's
implementing rules (16 CPR Section 316.3, with respect to communications to computers). "AUP" means the Acceptable Use
Policy of Everbridge, available at http://www.everbridae-com/agp, as may be amended from time to time to time. "Customer Data"
Weans the names and contact paths for Members, and any and all electronic data provided by Customer to Everbridge in
connection with the use of the Service. "Governmental Body" means any legislature, agency, bureau, branch, department,
division, commission, court, tribunal, magistrate, justice, multi - national organization, quasi - governmental body, or other s[mllar
recognized organization or body of any federal, state, county, municipal, local, or foreign government or other similar recognized
organization or body exercising similar powers or authority. "Intellectual Property nights" means patented or unpatented
inventions: patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain Marne rights,
mask work rights, know -how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms
of protection of a similar nature anywhere ire the world.
Member" or "Members" shall mean Customer's employees, agents, representatives, clients, customers, subscribers, members
andlor other persons or entitles wham Customer may wish to contact using the Service, provided, however, that each Member
Record, if more than one for any Member, shall be deemed to represent a separate Member for all purposes hereunder.
Member record" includes, without lImIta #ion, the Customer Data for a Member. "Quote" ,Weans the description of Services
purchased by Customer, subject to the terms and conditions hereof, which is attached hereto as Exhibit A and incorporated herein
by this reference. "Software" means the computer source code and object code, including, without limitation, the software,
provided or used by Everbridge in connection with the Service provided hereunder. "Users" ,Weans Members, Customer's
employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications
and passwords by Customer (or by Everbridge at Customer's request).
SERVICE. Subject to the provisions of this Agreement, Everbridge shall provide Customer access to the service utilizing
the Software, applications and services that comprise the Everbridge Mass Notification System "System "), an automated system
for delivery of messages to multiple Members via ,multiple communication paths, and for processing responses thereto, as set
forth in the Quote (the "Service "). Unless explicitly .stated otherwise, any new features that augment or enhance the current
Service, including any new Service, will be subject to the provisions of this Agreement, Everbridge shall make the Service
available to Customer pursuant to tine terms and conditlons set forth in this Agreement. Customer agrees that its purchase of the
Service is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written
public comments made by Everbridge with respect to future functionality or features.
3. USE OF THE SERVICE.
1 Everbridge Responsibilities. Everbridge shall: (1) in addition to its confidentiality obligations pursuant to Section
10, not use, edit or disclose to any party other than Custorrer, the Customer Data, unless otherwise required by a Gove rnrnentaI
Body; (ii) subject to the provisions of Paragraph 5 of the Agreement to which these terms and conditions are attached, use
PEVSA -03181
commercially reasonable efforts to provide the Service herein contemplated; and use commercially reasonable efforts to provide
support for the Service.
3.2 Customer Responsibilities.
a) Customer Is responsible for all activities that occur under Customer's account. Customer shall: (i ) provide
Everbridge with the Customer Data for Members that Customer and Customer's authorized users want to communicate with using
the Service; (ii) provide Everbridge with this Customer Data in a form and format specified by Everbridge, if so required; (iii) have
sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data;
1v ) maintain a copy of all Customer Data it provides to Everbridge; (v) designate certain Users to access and use the Service on
Customer' behalf; (vt ) ensure that Users shall at all times use the Service in accordance and in compliance with this Agreement,
and the AUP, as each may be updated periodically by Everbridge; {vii} prevent unauthorized access to, or use of, the Service, and
notify Everbridge promptly of any such unauthorized use and, notwithstanding anything to the contrary in this Agreement,
Everbridge shall have no liability for any losses, damages, claims, suits or other actions arising out of or in connection with such
unauthorized or improper use of the Service by Customer, lasers or Members; and (viii) comply with all Applicable Laws; (ix)
cause such number ofits employees, as determined by Customer, to undergo initial setup and training, as set forth in the quote;
x) not cause any disturbances, outages or take any other actions that may adversely affect the Service; and (A) be responsible
for, and/or its Users shall be responsible for, payment of any service fees, tent messaging fees, and any other third party fees or
expenses, associated or incurred in connection with, the access or use of the Service by Customer and/or its Users. Customer
acknowledges that it is solely responsible for the content of any information that it makes available through the Service and that
Everbridge will not, except as otherwise expressly herein set forth, monitor Customer or Customer's use of the Service to examine
the content passing through it. Notwithstanding anything to the contrary in this Agreement, in no event shall Everbridge be liable
to Customer, a Member or any other third party for any failure on the part ,of Customer to fulfill its responsibilities pursuant to this
Section 3.2 and Everbridge expressly disclaims any liability arising therefrom.
b ) Customer agrees to: (i) provide true, accurate, current, up -to -date and complete Customer Data and
information about itself; and (ii) maintain and promptly update the Customer Data to keep it truer accurate, current and complete.
If Customer authorizes Everbridge to do so, Customer's Members will be allowed access to their personal Customer Data to make
modifications or changes thereto. If Customer or any Member provides any information that is untrue, inaccurate, not current or
incomplete, Customer understands, acknowledges and agrees that any notifications sent utilizing the Service may not reach the
intended Member.
c ) Customer may designate up to the number of Users permitted under its account, which corresponds to the
level of Service purchased by Customer as set forth in the Quote. Customer shall be responsible for the confidentiality and use of
its Users' identifications and passwords. Customer shall be responsible for all electronic communications (Including maintenance
of Customer Data) and the sending of messages to Members ( "Electronic Communications") entered through or under a User's
identification and/or password(s). Everbridge will act as though any Electronic Communications sent by Customer shall comply
with Applicable Law, and shall have been sent by an authorized User, and shall be permitted to rely thereon for all purposes.
Customer agrees to immediately notify Everbridge if it becomes aware of any loss or theft of a User's identification and /or
password (s) or any unauthorized use of the Service and /or identification and /or password {s} used in connection therewith.
4. Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this
Agreement and shall not: (1) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise
commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; or {ii} use the
Service in vioiation of the AUP or Applicable Law.
5. NIA
SUSPENSION.
Eve rbridgo may, at its option, suspend the Service or terrninate this Agreement, effective upon notice, should Cu tornerrs. or
a User's use of the Service (i) violate the provisions of Section 3. 2 hereof, or (H ) in the event Customer fails to pay any fees or
changes when due. In the event of a suspension of the Service, Customer's account shall not be reactivated until such time as
Customer shall be in cornpiiance with the AP, Section 3,2 and /or shall have paid all past die amounts, as the case may be, plus
Customer shall have paid a reconnection fee of $1 ,000.
7, NIA
PAYMENT TERMS; TAXES.
1 Payment. Unless otherwise set forth in Exhibit A, Everbridge shall invoice Customer in advance for the Initial Term
t EVSA - 031812
and annually in advance for any Renewal Term. All payments, including, without limitation, fees for professional services, shall be
trade within thirty ( 0) days from the date of invoice. If any tee is not paid within thirty ( 0) days after it is due, in addition to any
other nights and remedies that Everbridge may have hereunder (Including, without limitation, pursuant to Section .2), Everbridge
reserves the right to charge interest at a rate of one and one -half percent (l 2 %) per month or the highest rate allowed by
Applicable law, whichever is lower,
8.2 'Taxes. unless otherwise provided for in Exhibit A, or in a SOW, - as the case may be, Everbridgers Pricing and fees
for professional services do not include any local, state, federal or foreign takes, levies or duties of any nature ( "Taxes").
Customer is responsible for paying all Taxes, excluding only taxes based on Everbridge's income, If Everbridge has the legal
obligation to pay or collect Takes for which Customer is responsible under this section, the appropriate amount shall be invoiced
to and paid by Customer unless Customer provides Everbridge with a valid tax exemption certificate authorized by the appropriate
taking authority.
PROPRIETARY F I HT .
9.1 Grant of License. Everbridge hereby grants to Customer, during the Term, a non- exclusive, non-transferable right
to use the Service, solely for Customer's own internal business purposes, subject to the terms and conditions of this Agreement,
Upon suspension of the Service as herein contemplated, or upon termination of this Agreement for any reason, all licensed rights
granted to Customer pursuant to this Agreement shall terminate immediately, and Customer shall promptly discontinue all further
use of the Service.
2 Restrictions, trictions, Customer will not: (i) copy, modify, port, adapt, translate, localize, reverse engineer, de- cornpiie,
disassemble or otherwise attempt to discover the source code of the Software, the Service or any portion thereof for any
purposes, including, without limitation, to ( build a competitive product or service; () build a product using similar ideas,
features, functions or graphics of the Service; or (z ) copy any ideas, features, functions or graphics of the Service; ii create
derivative works based on the Software, the Service or any portion thereof or merge any of the foregoing with any third party
software or services; (iii) remove, obscure or alter any proprietary notices or labels on the Software, or any portion of the Service;
iv) transfer, lease, assign, sublicense, pledge, rent, share, distribute or allow any lien or encumbrance to be placed on the Service
or Software or any portions thereof; (v) disclose the results of any performance, functional or other evaluation or benchmarking of
the Software or Service; provided, however, Customer may distribute the reports and other data generated by the Service
excluding any Everbridge intellectual property or confidential information included therein); (vi) use the Software, the Service or
any portion thereof to provide services to any third party or for the benefit of any third party, including, without limitation, any entity
or individual that markets, distributes or provides notification software . or services; {vii} create Internet "links" to or from the
Service, or "frame" or "mirror" any content forming part of the Service, other than on Customer's own intranets or otherwise for its
own internal business purposes; (viii) use, post, transmit or Introduce any device, software or routine which interferes or attempts
to interfere with the operation of the Service or the Software; or (ix) permit access to the Software, the Service or any portion
thereof by any third party other than Customer's Users who (a) are bound by the terms of a written agreement with Customer
which will protect Everbridge and its Intellectual Property Fights in a manner no less protective as the terms hereof and (b) use
the Software and the Service solely for the benefit of Customer (each a "P rmitted_ Contractor"). Customer shall be liable to
Everbridge for any breach of the terms of this Agreement by any of its Permitted Contractors to the same extent that Customer
would be liable hereunder had it committed the same breach.
9.3 Reservation of Rights. Other than as expressly set forth in this Agreement, no license or other rights in or to the
Everbridge Technology or intellectual Property bights therein are granted to Customer, and all such licenses and rights are
hereby expressly reserved. In furtherance of, and not in limitation of the foregoing, Everbridge owns all rights, title and interest,
including any and all related Intellectual Property Fights, in and to Everbridge Technology and the Service and any suggestions,
ideas, enhancement requests, feedback, recommendations or other information provided by Customer or a User, relating to the
Service. Customer acknowledges and agrees that Everbridge will retain ali right, title and interest to beach marring data,
abstracted derivative data, transactional, performance data and rnetad to (but not to Customer Data) related to use of the Service
or the Software and the Service which Everbridge may aggregate, benchmark and collect in such a way as to not allow
identification of Customer or a User (including Software use optimization and product marketing), provided that such use does not
reveal the identity of Customer or Users or specific Software use characteristics that may be identified to Customer (collectively,
the "Transactional Data"), This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to
the Service, Everbridge Technology or Intellectual Property Fights owned by Everbridge, provided, however, that as between
Everbridge and Customer, all Customer Data that is not Transactional Data shall be owned exclusively by Customer.
10. CONF]DENTIAL IN FORMATION.
10.1 Definition; Protection. As used herein, "Confidential Information " means all confidential and proprietary
information of a party ("Disclosing Party" ) disclosed to the other party ("Receiving Party"), whether orally or in writing, that is
designated as confidential or that reasonably should be understood to be confidential given the nature of the information
REVSA -03131
and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other
terms reflected herein and in all Order Forms hereunder), the Customer Data, the Service, the Everbridge Technology
and Intellectual Property Fights therein, business and mar etling plans, technology and technical information, product
designs, reports and business processes. Confidential Information (except for Customer Data) shall not include any
information that: i is produced in compliance with applicable law, securities reporting requirement or a government or
court order, provided the other party is given notice and an opportunity to intervene;(li) is or becomes generally known to
the public without breach of any obligation owed to the Disclosing Party, (iii) was known to the Deceiving Marty prior to its
disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iv) was independently
developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or ) is received from a
third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose or use any
Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing
Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information cf the other party in
the same manner that it protects the confidentiality of its awn proprietary and confidential information of like Kind, but in no event
small either party exercise less than reasonable care in protecting such Confidential information. If the Receiving Party discloses
or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 10, the
Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it
being specifically acknowledged by the parties that any other available remedies are inadequate. Its furtherance of, and not in
limitation of anything set forth in this Section 10 or elsewhere in this Agreement, the terms and conditlans of this Agreement shall
be Confidential Information of Everbridge.
11. WARRANTIES DISCLAIMERS,
11.1 Warranties. Customer represents and warrants that it has the legal power to enter into this Agreement and shall
perform the responsibilities required by it pursuant to Section 3.2. By purchasing the Service, Customer authcri es Everbridge to
collect, store and process Customer Data subject to the terms of this Agreement. Customer shall ensure that, during use of the
Service, Customer shall have a privacy policy that clearly and conspicuously Notifies the Members of the way in which Customer
Data shall be used. Customer represents and warrants that the collection, storage and processing of such Customer Data, and
the use of the Service, as provided in this Agreement, will at all tires comply with i) its oven policies regarding privacy and
protection Of user information; and (ii ) all Applicable Lags, including those related to processing, storage, use, reuse, disclosure,
security, protection and handling of Customer Data.
11.2 Disclaimer, claimer, Except as expressly provided herein, Everbridge makes no warranty of any kind, whether express;
implied, statutory, or otherwise. Everbridge hereby specifically disclaims all implied warranties, including any warranty of
merchantability or fitness for a particular purpose, to the maximum extent permitted by Applicable L.a .
12. PROFESSIONAL SERVICES. Everbridge may provide professional services to Customer from time to time. Such
professional services small, unless otherwise expressly therein set forth, be provided in accordance with, and subject to, the
provisions hereof and any additional terms related thereto which are set forth in a Statement ofWork ("SOW "),
13. N/A
14. N/A
IS. MISCELLANEOUS.
16.1 Non- Solicitation and ikon- Interference. As additional protection for Everbridge's proprietary information, for so
long as this Agreement remains in effect, and for one year thereafter, Customer agrees that it shall not, directly or indirectly,
solicit, hire or attempt to solicit any employees of Everbridge. in the event that Customer hires any such employee (whether as an
employee or consultant or otherwise engages the services of such employee), Customer shall pay to Everbridge an amount equal
to 100% ofthe total first -year compensation which Customer pays such individual as a fee, salary, or other compensation.
16.2 No Third -Daffy Beneficiaries, There are no third party beneficiaries to this Agreement.
15.3 Entire Agreement. This Agreement, the Exhibits, agreements and documents referenced herein and therein, and
the AUP, (the "Transaction Documents") constitute the entire agreement between the Parties and supersedes any and all other
agreements and understandings between EverWdge and Customer, whether oral or written, with respect to the subject ratter
hereof. This Agreement and, except as otherwise herein provided for, the Transaction Documents, shall not be Modified or
amended in any manner except by a writing signed by authorized representatives of both Parties. Nothing contained in a
Transaction Document shall, except as otherwise herein provided for, modify any of the express terms or conditions set forth in
REV A3- 031812
this Agreement, and if any provision in a Transaction Document conflicts with a provision of this Agreement,-such conflict small be
resolved in favor of this Agreement, unless the provision of such Transaction Document expressly provides otherwise.
16.4 Marketing. Customer agrees to be referenced as are Everbridge customer in a press release within thirty { 0} days
of the Effective Date. Expenses related to the creation and distribution of this press release will be borne by Everbridg.
15.6 urvivarl. Sections 1, 3, 4, 5, 6, and Sections 8 through 15 shall survive the expiration or earlier termination -of this
Agreement.
16.6 Counterparts. This Agreement and any Transaction Document may be executed in one or more counterparts, all
of which together shall constitute one original document. In lieu of the original, a facsimile transmission or copy of the original
shall be as effective and enforceable as the original.
15.7Export Compliant. Neither party shall export, directly or indirectly, any technical data acquired from the other
pursuant to this Agreement or any product utilfzing any such data to any country for which the U.S. Government or any agency
thereof at the time of export requires an export license or other governmental approval without first obtaining such license or
approval•.
IN WITN ESS VI HEIREOF, the Parties have caused this Agreement to be duly executed as of the date set forth above.
EVERBRIDGE, ID E, III .
By:
Print Name,
Title:
Date:
Address;
505 N. Brand Blvd., Suite 700
Glendale, CA 91203
CITY OF CUPERTINO
B:
Print Name:
Title:
Date:
Address:
Approved as to form
Cupertino City Attorney
By:
Print Name;
Date:
EVA -0181