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16-106 Connected Signals, Inc., Traffic Signals Data Application AgreementtJ o Po 15-029A TRAFFIC SIGNALS DAT A APPLICATION REVISED AGREEMENT This TRAFFIC SIGNALS DATA APPLICATION agreement, made and entered into the 1ffh day of ~s..f-" , 2016 (the "Agreement"), by and between Connected signals, Inc ., a Delaware~oration (hereinafter "CONNECTED SIGNALS") and the City of Cupertino (hereinafter "AGENCY"). CONNECTED SIGNALS and AGENCY are sometimes referred to herein each individually as a "Party" or collectively as the "Parties." RECITALS: WHEREAS, CONNECTED SIGNALS has developed an application (the "Application") that provides real-time traffic signal and travel routing information to vehicles for drivers; and WHEREAS, CONNECTED SIGNALS is willing to deploy the Application in Cupertino (the "Location") provided Transportation Department of AGENCY (the "TD"), makes the real- time traffic-signal operational data (the "Data") described hereto available to CONNECTED SIGNALS; and WHEREAS, AGENCY desires that the Application be deployed in the Location and is willing to make the Data available to CONNECTED SIGNALS in accordance with the terms of this Agreement. WHEREAS, the services of AGENCY will be of benefit to CONNECTED SIGNALS and to the people of the Location; and WHEREAS , the Parties are willing and able to perform the services described herein. NOW, THEREFORE, in consideration of the above premises and of the mutual covenants herein contained, it is agreed as follows: AGREEMENT ARTICLE I -AGENCY AGREES 1. AGENCY shall provide the Data to CONNECTED SIGNALS without cost as a Data stream (the "Data Stream") of the most current traffic signal timing data information available on the existing traffic signal system. CONNECTED SIGNALS will extract the information it needs from the Data Stream via secure one-way communication with AGENCY. 1.1 AGENCY provides a limited, non-exclusive, non-transferrable, royalty-free, fully revocable, worldwide license to use, copy, store, modify (including standardize , optimize, crop or otherwise reformat for distribution (only with AGENCY 's prior written consent, which consent shall not be unreasonably withheld), broadcast, perform and display (publicly or otherwise) the Data to CONNECTED SIGNALS solely as part of CONNECTED SIGNALS Authorized Use ("Data License "). 1.2 CONNECTED SIGNALS may only use the Data pursuant to the terms and restrictions set forth herein and only in connection with the Application and Studies ("Authorized Use"). 2. AGENCY at its sole discretion reserves its right to terminate the Data Stream at any time and for any reason without notice . Page 1 of 7 Rev. 7 /22/16 3. The Data Stream provided for each traffic signal includes but is not limited to: A. Identification: the intersection id number and intersection name; B . Timing: time of the last update, and seconds into the current timing plan; C. Status: on-line/off-line state, current timing plan, and operational mode (e.g., free-run, flashing, transit override); D. Phase: current green, yellow, overlays, and pedestrian phases; and E. Call information: vehicle calls and pedestrian calls. ARTICLE II -CONNECTED SIGNALS AGREES 4. CONNECTED SIGNALS shall extract the traffic signal timing Data information from the Data Stream via secure one-way communication with AGENCY. CONNECTED SIGNALS shall have no ability to write to, upload to, modify, delete, execute, or other otherwise change or provide data to AGENCY's server or other computer or operating system . 5. CONNECTED SIGNALS acknowledges that AGENCY makes no warranty as to the accuracy and timeliness of the Data Stream or that the Data Stream will operate continuously and unimpaired. Connected Signals acknowledges that all data provided by AGENCY is on as "AS IS", "AS AVAILABLE" and "WITH ALL FAUL TS" basis . Connected Signals also acknowledges that AGENCY makes no warranty of any kind for the Provided Data, express or implied , including but not limited to any warranties of merchantability or fitness for a particular purpose, nor shall the distribution of the Provided Data constitute any warranty. CONNECTED SIGNAL represents and warrants that its use of the Data Stream and any hardware or other equipment utilized in connection with this Agreement, will not result in any harm, damage or injury to the AGENCY's Data Stream, technical systems, server, technology equipment, internet service, or cause any interruption of AGENCY's business . 6. CONNECTED SIGNALS will use the Data to develop, deploy, and maintain the Application. In addition, CONNECTED SIGNALS will use the Data and data collected from users of the Application in the Location to develop location, corridor, or other studies (the "Studies") that will anonymize the identities of users of the Application and be sold by CONNECTED SIGNALS to third parties. 7. CONNECTED SIGNALS shall not: (a) use the Data for any purpose other than as set forth in this Agreement, (b) use AGENCY's name or logo to market or promote the Application other than in describing the Location covered by the Application without AGENCY's explicit written permission, or ( c) market or promote the Application as being sponsored, endorsed , or funded in any manner by AGENCY. 8. CONNECTED SIGNALS shall provide the Application and raw data used in the Studies to AGENCY and local agency traffic departments. 9. CONNECTED SIGNALS shall pay for any TD operating expenses due to the Data Stream connecting equipment, if required. 10. In the event that any necessary hardware equipment is required, CONNECTED SIGNALSi shall set up any necessary equipment at the TD Traffic Management Center (TMC) in order to obtain the Data Stream. CONNECTED SIGNALS is exclusively responsible for any costs related to the purchase and installation of said equipment. TD personnel have the exclusive Page 2 of 7 Rev. 7/22/16 right to determine at what location within the TMC CONNECTED SIGNALS equipment may be placed (so as to ensure that equipment is by no means and in any way, disruptive to AGENCY), and reserve the right to inspect the installation of all CONNECTED SIGNALS equipment. TD must approve of all equipment installed in TMC. Under no circumstances will the placement and installation of said equipment interfere with TMC 's equipment or the activities of TMC personnel. The service, maintenance, and upkeep of any and all of CONNECTED SIGNALS installed equipment, is exclusively the responsibility of CONNECTED SIGNALS. TD personnel must be given at least two working days' advance written notice of any maintenance or repair visits of CONNECTED SIGNALS, its employees, agents, or representatives . Said visits must be scheduled at such times and in such a manner so as to not interrupt or otherwise obstruct TMC operations. CONNECTED SIGNALS assumes any and all liability for the cost of any damage to the TD system caused in any manner by the installation of the CONNECTED SIGNALS equipment or by the equipment once installed. 11. CONNECTED SIGNALS warrants that (i) the Application is an original work of authorship of CONNECTED SIGNALS and is free and clear of any and all liens, claims, or rights of any type whatsoever, and (ii) the use of the Application will not infringe upon the rights of copyright, patent, design trademark, trade dress or other intellectual property rights of any other person or entity. CONNECTED SIGNALS hereby agrees to obtain a written release or assignment from any person or entity required to make CONNECTED SIGNALS representations and warranties hereunder true, complete and correct in all respects. CONNECTED SIGNALS hereby agrees to indemnify, defend and hold harmless AGENCY from and against all claims , demands, suits, liabilities, obligations and expenses (including attorneys' fees) of whatsoever kind or nature arising out of or connected with an alleged infringement of any rights of others rights of copyright, patent, design trademark, trade dress or other intellectual property rights of any other person or entity directly related to the use of the Application. 12. CONNECTED SIGNALS shall (a) maintain appropriate technical, organizational and physical measures to protect the Data that it collects, accesses, processes or receives from AGENCY and AGENCY's equipment, technical systems, server, technology equipment, internet service, under the terms of this Agreement against unauthorized or unlawful transfer, processing or alteration and against accidental access, loss , damage, processing, use, transfer or destruction; (b) protect the AGENCY's equipment, software, and internet service, including all technical systems, servers, technology equipment from any unauthorized breach, use or other intrusion; ( c) take , and hereby represents and warrants that it has taken, all steps to ensure the reliability and security of systems operated by or on behalf of AGENCY; (d) immediately notify AGENCY of any (i) breach or suspected breach of the security of any such systems that may have resulted in the compromise of the Data, or (ii) other unauthorized access to or use of (whether electronically or physically) the Data (or CONNECTED SIGNALS ' reasonable belief that such access or use may have occurred), and without limiting AGENCY's rights with respect thereto, cooperate with AGENCY, with respect to any such breach or unauthorized access or use; and (e) act only on AGENCY's instructions in relation to the collection, accessing, processing , use, disclosure, transfer or destruction of any data that AGENCY provides to or CONNECTED SIGNALS gathers on AGENCY's behalf. ARTICLE Ill -IT IS MUTUALLY AGREED 13. Termination. Either Party may terminate this Agreement by providing at least 30 days' prior written notice, except that AGENCY may terminate this Agreement immediately under section Page 3 of 7 Rev. 7/22/16 2 above, or if AGENCY's network is compromised or impaired as a result of CONNECTED SIGNALS extraction of information from the Data Stream. Unless the Parties mutually agree to extend the term of this Agreement in writing, the Agreement will terminate on J lµ,..g._ ~, :UtJ. . 13.1 The Parties acknowledge and agree that neither Party will be entitled to damages or other remedy solely by virtue of the other Party 's termination of the Agreement. 14. Indemnification. CONNECTED SIGNALS shall indemnify, defend , and hold AGENCY harmless from and against all claims, actions , liabilities , and costs , including reasonable attorney fees , arising out of or in any way related to its performance of this agreement, including without limitation, acts , errors, or omissions of CONNECTED SIGNALS or its subcontractors, agents, and employees, including, but not limited to, any and all claims of injury to property or person that may arise as a result of the Application . If AGENCY intends to seek indemnification with respect to a claim made by any third party (a "Third Party Claim"), it shall promptly notify CONNECTED SIGNALS in writing of the Third Party Claim and CONNECTED SIGNALS shall have the right to assume the defense of such Third Party Claim w ith counsel reasonably satisfactory to AGENCY. In any such proceeding the defense of which CONNECTED SIGNALS shall have so assumed , AGENCY shall have the right to participate therein and retain its own counsel at its own expense. AGENCY shall cooperate in all reasonable respects with CONNECTED SIGNALS in conne ction with any Third Party Claim and the defense or compromise thereof. 15. Assignment. CONNECTED SIGNALS shall not assign this Agreement , in whole or in part, or any right o r obligation hereunder, without AGENCY's prior written approval, wh ich approval shall not be unreason a bly withheld or delayed . A change in ownership of CONNECTED SIGNALS resulting from a voluntary transfer of stock , or a transfer of stock upon death or disability of any owner, shall not constitute an assignment. 16. Compliance with Laws. CONNECTED SIGNALS shall comply with all applicable Federal, state and local laws , rules , ordinances, and regulations at all times. 17. Ownership of Application and Studies. AGENCY acknowledges and agrees that CONNECTED SIGNALS is the sole owner of, and that AGENCY shall have no ownership or other interest in , the Application or the Stud ies . 18 . Dispute Resolution. 18 .1 Continued Performance. Unless the Agreement is terminated , neither Party shall suspend perfo rmance of its obligations hereunder pending the resolution of a dispute . 18.2 Negotiation/Mediation. The Parties shall attempt to resolve all disputes by negotiation and voluntary mediation. The Parties shall share equally in all common costs of mediation . 18.3 Construction of Agreement. This Agreement shall not be construed against either Party regardless of which Party drafted it. Other than as modified by written agreement , the applicable rules of contract construction and evidence shall apply . This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflict of laws . Pa g e 4 of 7 Rev. 7/22/16 18.4 No Waiver . Nothing in this Agreement shall be construed as a waiver by AGENCY of any form of defense or immunity, whether sovereign immunity, governmental immunity, or otherwise . 18 .5 Governing Law; Forum. The Agreement will be governed by the laws of California and its choice of law rules. Both Parties irrevocably consent to the exclusive personal jurisdiction and venue of the federal and state courts located in Santa Clara County, California, with respect to any dispute arising out of or in connection with the Agreement, and agree not to commence or prosec'ute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts . 18.6 Amendments. This Agreement, together with the attachments and/or addenda, represents the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations , representations, or agreements, either written or oral. This Agreement may be amended, modified or added to only by written instrument properly signed by both parties hereto. 19. Survival. Any duty, liability, or obligation of a Party which arises under this Agreement, including without limitation, obligations with respect to indemnification, shall survive the termination or expiration of this Agreement and shall be legally enforceable until satisfied by performance or payment, or until enforcement is legally precluded by lapse of time. 20. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement. The Parties agree and intend that this Agreement shall be enforceable only by the Parties and their duly authorized representatives. It is specifically agreed between the Parties executing this Agreement that it is not intended by any of the provisions of any part of this Agreement to create in the public or any member thereof a third party beneficiary status hereunder, or to authorize anyone not a party to this Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Agreement. 21. Insurance and Risk of Loss. CONNECTED SIGNALS shall maintain insurance of at least $2 million to protect CONNECTED SIGNALS ' business against all applicable risks. CONNECTED SIGNALS Will cause AGENCY to be named as additional insured on the policy required under the Agreement and shall cause its insurance to be primary to any insurance carried by the indemnified parties . CONNECTED SIGNALS will provide AGENCY with certificates of insurance and other supporting materials as AGENCY reasonably may request to evidence CONNECTED SIGNALS's continuing compliance with this Section. CONNECTED SIGNALS will be liable for all loss or damage, other than ordinary wear and tear, to AGENCY's property in the CONNECTED SIGNALS possession or control that is caused by CONNECTED SIGNALS . In the event of any such loss or damage, CONNECTED SIGNALS will pay AGENCY the full current replacement cost of such equipment or property within thirty (30) days after its loss or damage . In no event shall AGENCY be liable for any damages , claim or loss incurred by CONNECTED SIGNALS resulting from loss of Provided Data or inability to use Provided Data irrespective of AGENCY's have been informed of, knew of, or should have known of the likelihood of loss of use of Provided Data. 22. Independent Contractor. CONNECTED SIGNALS shall be and act as an Independent Contractor (and not as the employee, agent, or representative of AGENCY) in the performance of the Services for the AGENCY. The Agreement shall not be interpreted or Page 5 of 7 Rev. 7/22/16 construed as creating or evidencing an association , joint venture, partnership or franchise relationship among the parties or as imposing any partnership, franchise, obligation, or liability on any party. 23. Notices. This Agreement and other documents may be open to public inspection and copying . The Parties will have the duty to disclose unless a particular record is deemed confidential by law or a common law balancing of interests. Each Party shall keep confidential all information, in whatever form, produced, prepared , observed or received by that Party to the extent that such information is confidential by law or otherwise required by this Agreement. The Parties hereto represent and warrant that the person executing this Agreement on behalf of each Party has full power and authority to enter into this Agreement and that the Parties are authorized by law to perform the services set forth herein. Any notice permitted or required by the Agreement shall be in writing and be deemed given when personally delivered or upon deposit in the United States mail, postage fully prepaid, certified, and with return receipt requested, to the persons and addresses shown below. In addition, if directions for telephonic transmission ("FAX") are set forth below, notices may be delivered by FAX, and if directions for email transmission ("Email") are set forth below, notices may be delivered by Email. Notices sent by certified mail will be deemed delivered three business days after placement in the mail and notices sent by FAX or Email will be deemed delivered when successful transmission is confirmed. FOR CONNECTED SIGNALS : Matthew Ginsberg Connected Signals, Inc. 355 Goodpasture Island Road , Suite 200 Eugene, OR 97401 Email : mginsberg@connectedsignals.com FOR AGENCY: David Stillman City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Phone : ( 408) 777-3249 Email: davids@cupertino.org Each Party shall notify the other of any change in the name, address, FAX , or Email instructions to be used for delivery of notices . This Agreement constitutes the entire agreement of the Parties and such is intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Unless an integrated attachment to this Agreement specifically displays a mutual intent to amend a particular part of this Agreement, general conflicts in language between any such attachment and this Agreement shall be construed consistent with the terms of this Agreement. Unless otherwise expressly authorized by the terms of this Agreement, no modification or amendment to this Agreement shall be binding upon the Parties unless the same is in writing and signed by the respective Parties hereto . Page 6 of 7 Rev. 7/22/16 IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written. CONNECTED SIGNALS , INC . David Brandt, City Manager ~ /(z_ "fD~ ©t r'I ~IUJ ft. Y 1 f?.-A1\J DO Lf 14 Page 7 of 7 Rev. 7 /22/16