Services Agreement (General) Page 1 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
SERVICES AGREEMENT (GENERAL)
Tablet Command Software
City Agreement No. _________________
City Budget Code: __________________
This Services Agreement (General) for Tablet Command Software (“Agreement”) by and between the City of Napa, a California charter city (“City”), Tablet Command, Inc, a Delaware Corporation (“Service Provider”), is effective on the date last signed by the City, which is identified on the signature page as the “Effective Date.”
RECITALS
A. The City desires to obtain the services more particularly described in this Agreement and Exhibit “A and A -1,” and generally including a standardized command system application programming interface (API) named Tablet Command.
B. The City believes that a shared incident command system will produce a more reliable and standardized operational picture.
C. City will serve as the single point of billing for the Service Provider.
NOW, THEREFORE, the City and the Service Provider, for the mutual consideration described herein, agree as follows:
1. SCOPE OF SERVICES.
1.1. Services. Service Provider will perform the services described in the Scope of Services and Schedule of Performance, attached hereto as Exhibit “A and A-1” and incorporated herein by reference (“Services”), in accordance with the terms and conditions of this Agreement and to the satisfaction of the City’s authorized representative , Gus Ulloth, Communications Manager (“City’s Authorized Representative”). Prior to use of the Services and Mobile Application (as defined in the EULA), City users will be required to agree to the terms of an End User License Agreement (“EULA”) , attached hereto as Exhibit “C”. The terms of the EULA are binding on the City and are incorporated by reference into this Agreement.
1.2. Standard of Care. In performing the Services, Service Provider will meet or exceed the applicable standard of care for and exercise the degree of skill and diligence ordinarily used by reputable service providers within the greater San Francisco Bay Area who provide the same or similar type of services as the Services required under this Agreement . Service Provider will require and ensure that all of its employees, Service Providers, or agents performing or contributing to the Services will comply with the requirements of this Agreement.
1.3. Independent Contractor. Service Provider will control the manner and means for performing the Services, acting as an independent contractor and not as an employee of the city. Service Provider will not be entitled to any of the benefits that the city provides to its employees, including, but not limited to, health or retirement benefits.
1.4. Subcontracting. If Service Provider subcontracts with a sub-service provider to perform any of the Services, the City are deemed an intended beneficiary of that subcontract and the Service Provider will owe a duty of due care to the City. The City reserves the right to approve or reject any proposed sub-service provider, based on the sub-service provider’s qualifications, relevant experience, or reputation.
1.5. Third Party Beneficiaries. Except to the extent expressly stated herein, this Agreement will not Attachment 2
Services Agreement (General) Page 2 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
be construed to create any rights in third parties.
1.6. Time for Performance . Time is of the essence for the performance of all Services and duties under this Agreement. Service Provider will commence and complete all Services by the date and within any timeframes set forth in Exhibit “A .” Services for which times for performance are not specified in this Agreement will be commenced and completed by Service Provider in a reasonably prompt and timely manner based upon the circumstances and direction from the City’s Authorized Representative . Service Provider will submit all requests for extensions of time to the city in writing no later than ten days after the start of the circumstances or events giving rise to the delay, and no later than the time by which performance is due. The City’s approval of any extension of time for performance of the Services will not operate to waive the City’s rights or remedies with respect to damages caused by Service Provider’s delay.
2. COMPENSATION.
2.1. Payment. The City will pay Service Provider for services rendered pursuant to this agreement at the times and in the manner set forth in Rates and Charges attached hereto as Exhibit “B” and incorporated herein by reference , as compensation in full for Services satisfactorily performed in compliance with this Agreement. Service Provider’s total compensation for performing the Services may not exceed $125,000 per fiscal year without prior written authorization from the City. If the City authorizes Service Provider to perform services in addition to the Scope of Services set forth in Exhibit “A,” Service Provider will be compensated in accordance with the rates and charges in Exhibit “B.” Service Provider will not be entitled to any compensation for additional services performed without the City’s prior written consent, or which exceed the scope of the City’s written consent.
2.2. Invoices. Service Provider will submit an annual itemized invoice to the City’s Authorized Representative for the Services and user licenses provided. At a minimum, the invoice must identify the Services performed, user license s provided , one time and annual costs by agency and any authorized expenses based on the rates and charges authorized in Exhibit “B.” The City will pay the Service Provider pursuant to the terms of Exhibit “B”, with the exception of any disputed amounts. The Service Provider and City agree on single point billing. All payments associated with this agreement will be issued by the City.
3. AUTHORIZED REPRESENTATIVE . Service Provider hereby assigns Jake Pelk and John Wickenhaeuser, to serve as the Service Provider ’s authorized representative (“ Service Provider ’s Authorized Representative”), to personally participate in and manage the Services provided under this Agreement, and to serve as the primary point of contact for all matters pertaining to this Agreement .
3.1. Substitutions. As a material inducement to entering into this Agreement, the City has relied upon Service Provider’s representations regarding Service Provider’s qualifications (including the qualifications of Service Provider ’s Authorized Representative, its personnel, and its Service Provider s, if any , as identified on Exhibits “A” and “B” ). Service Provider will not replace Service Provider ’s Authorized Representative (or any of its personnel or its Service Providers, if any, as identified on Exhibits “A” and “B”) without the City’s prior written consent ; provided that Service Provider can substitute an Authorized Representative upon notice and without consent if an Authorized Representative’s service to Service Provider terminates.
4. NOTICES. All notices or requests required or contemplated by this Agreement will be in writing and delivered to the other party’s Authorized Representative by personal delivery, U.S. Mail, nationwide overnight delivery service, email , or as otherwise specified herein . Delivery is deemed effective upon the first to occur of: (a) actual receipt by a party’s Authorized Representative, (b) actual receipt at the address identified below, or (c) three business days following deposit in the U.S. Mail of registered or certified mail sent to the address identified below. A party’s contact information, below, may be changed by providing written notice of any change to the other party.
Services Agreement (General) Page 3 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
TO CITY: Gus Ulloth
CITY OF NAPA
P.O. Box 660
NAPA, CA 94559-0660
TO SERVICE PROVIDER: William Pigeon
President, CEO and Co-Founder
Tablet Command, Inc.
822 Hartz Way, Suite 235
Danville, CA 94526-3473
5. TERM. The term of this Agreement begins on the Effective Date, and ends upon Service Provider’s completion of the Services required by this Agreement, unless terminated earlier as provided herein . The following provisions will survive expiration or termination of this Agreement: Section 7.2 (Dispute Resolution), Section 8.1 (Confidentiality), Section 8.4 (Records of Performance), Section 10 (Indemnification), Section 13.3 (Taxes), and Section 14 (General Provisions).
6. RIGHT TO TERMINATE. Either party may terminate this Agreement for convenience (with or without cause) by providing written notice of termination to the other party , effective upon the date stated in the notice. If the City terminate s the Agreement, it will pay Service Provider for all Services performed up to and including the effective date of the termination, subject to the provisions of Sections 2.
7. DEFAULT AND DISPUTE RESOLUTION.
7.1. Default. Service Provider will be deemed in default of this Agreement if Service Provider is not complying with the terms of this Agreement. If either of these circumstances exist, the City may give written notice of default to Service Provider and demand that the default be cured or corrected within ten days of the notice, unless the City determines that additional time is reasonably necessary to cure the default . If Service Provider fails to cure the default within of the time specified in the notice, and the Service Provider fails to give adequate written assurance of due performance within the specified time , then the City may terminate this Agreement in accordance with Section 6, or the City may pursue dispute resolution in accordance with Section 7.2.
7.2. Dispute Resolution. If any dispute arises between the parties in relation to this Agreement, the Authorized Representatives for each party will meet, in person, as soon as practicable, to engage in a good faith effort to resolve the dispute informally. If the parties are unable to resolve the dispute, in whole or in part, through informal discussions, the parties agree to participate in mediation. Notwithstanding the existence of a dispute, the Service Provider will continue providing the Services during the course of any dispute, unless otherwise directed by the City.
7.2.1. Either party may give written notice to the other party of a request to submit a dispute to mediation, and a mediation session must take place within 60 days of the date that such notice is given, or sooner if reasonably practicable. The parties will jointly appoint a mutually acceptable mediator. The parties will share equally the costs of the mediator; however, each party will pay its own costs of preparing for and participating in the mediation, including any legal costs.
7.2.2. Good faith participation in mediation pursuant to this Section is a condition precedent to either party commencing litigation in relation to the dispute. In addition, any claims by Service Provider arising from or related to this Agreement are subject to the claim presentment requirements in the Government Claims Act (Government Code section 900 et seq.).
8. INFORMATION AND RECORDS.
8.1. Confidentiality. Service Provider will not disclose any information or records related to the performance of this Agreement , including information and records received from the City, as well as Services Agreement (General) Page 4 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
information and records created by the Service Provider, to any person other than a City employee, unless and only to the extent that the City provides the Service Provider with prior written consent to make a disclosure. Service Provider will notify the City’s Authorized Representative of any request for disclosure of information, or any actual or potential disclosure of information, under this Agreement.
8.1.1 Service Provider is authorized to share Automatic Vehicle Location (AVL) data with other Tablet Command Customers that have opted to participate in AVL Sharing. AVL Sharing is a reciprocal opt in – opt out feature.
A. Definition. “Confidential Information” means any non-public information that relates to Company or Customer, as applicable, including without limitation, the terms and conditions of this Agreement, technical data, know-how, trade secrets, product plans, markets, services offerings, customer lists and customers, software, research and developments, inventions, processes, formulas, designs, drawings, hardware configurations or finances. Confidential Information does not include information that (i) is known to either Party at the time of disclosure as evidenced by written records, (ii) has become publicly known and made generally available through no wrongful act of the receiving Party or (iii) has been rightfully received by a Party from a third party who is authorized to make such disclosure.
B. Nonuse and Nondisclosure. Neither Party will during or subsequent to the term of this Agreement, (i) use the Confidential Information for any purpose other than the performance of this Agreement or (ii) disclose Confidential Information to any third party. Confidential Informatio n will remain the sole property of the disclosing Party. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of such Confidential Information.
8.2. The Parties agrees that all copyrights, moral rights, notes, records, drawings, designs, inventions, improvements, developments, discoveries, computer programs (e.g. source code, object code, listings), work-in-progress, deliverables, drawings, designs, logos, images, trademarks, and trade secrets conceived, discovered, developed or reduced to practice by Service Provider (collectiv ely, “Inventions”), solely or in collaboration with others, that relate in any manner to the business of Service provider are the sole property of Service Provider, except the extent of any City confidential information . All original documents or records ( “work product”), whether paper or electronic , required by this Agreement to be prepared by Service Provider (including its employees and Service Provider s), whether complete or in progress, are the property of the City . Service Provider will promptly deliver all such work product to the City at the completion of the Services, upon termination, or upon demand by the City. However, the Service Provider may make and keep copies of the work product. Under this agreement the City is licensed to utilize Tablet Command systems and services. The City acknowledges that Tablet Command does not grant ownership rights to intellectual property or trade secrets that are utilized to provide this service.
8.3. Contract Cost Disclosure . For any document or report prepared in whole or in part by Service Provider pursuant to this Agreement, Service Provider will include the numbers and dollar amounts of related contracts or subcontracts as further specified by Government Code Section 7550.
8.4. Records of Performance. Service Provider will maintain adequate records of performance under this Agreement (including Services provided, invoices for payment, and payments received) and make these records available to the City for inspection, audit, and copying, during the term of this Agreement and until four years after the Agreement has expired or been terminated unless City requests Service Provider to delete such information.
8.5. Electronic Communications . Service Provider will use reasonable good faith efforts to avoid transmitting electronic viruses or other damaging coding , and will promptly advise the City if Service Provider discovers that an electronic virus or similar destructive coding may have been transmitted to the City.
8.6. Copyrights/Patents. In performing the Services under this Agreement, Service Provider will not unlawfully infringe on any copyrighted or patented work. Service Provider is solely responsible for the cost Services Agreement (General) Page 5 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
of any authorizations necessary to use any copyrighted or patented work.
9. ACCIDENT REPORT. If any death, personal injury, or property damage occurs in connection with the performance of the Services, Service Provider will promptly submit to the City Clerk’s Office a written notice of the incident of damage with the following information:
9.1. A description of the damage including date, time, and location, and whether any City property was involved;
9.2. Name and contact information of any witness;
9.3. Name and address of the injured or deceased person(s); and
9.4. Name and address of Service Provider’s insurance company.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY . To the full extent permitted by law , Service Provider will indemnify, hold harmless, release , and defend the City (including its officers, elected or appointed officials, employees, volunteers, and agents ) from and against any and all liability or claims (including actions, demands, damages, injuries, settlements , losses, or costs [including legal costs and attorney's fees]) (collectively, “Liability”) of any nature, arising out of , pertaining to, or relating to Service Provider’s infringement of any third party intellectual property rights . Consistent with Civil Code Section 2782, Service Provider will not be obligated to indemnify City for the proportionate share of the Liability caused by the City’s active negligence, sole negligence , or willful misconduct. Service Provider ’s indemnification obligations under this Agreement are not limited by any limitations of any insurance held by Service Provider, including, but not limited to, workers’ compensation insurance.
EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES AND INDEMNITIES, EXPRESS OR IMPLIED,
IN THE PROVISION OF SERVICES HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF NON - INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE . IN NO EVENT SHALL TABLET COMMAND, INC.’S TOTAL CUMULATIVE LIABILITY TO ANY USER OR OTHER PARTY UNDER THESE TERMS OF SERVICE OR OTHERWISE EXCEED $50.00.”
11. INSURANCE. Without limiting Service Provider ’s indemnification obligations in Section 10, Service Provider will procure and maintain throughout the period of this Agreement the following policies of insurance and endorsements from insurers (if other than the State Compensation Fund) with a current A.M.
Best rating of no less than A:VII or its equivalent against injury/death to persons or damage to property which may arise from or in connection with the activities hereunder of Service Provider , its agents, employees or subcontractors:
11.1. General Liability Policy. Commercial General Liability Insurance (CGL) at least as broad as CG 00 01, covering premises and operations and including but not limited to, owners and contractors protective, product and completed operations, personal and advertising injury and contractual liability coverage with a minimum per oc currence limit of $1,000,000 covering bodily injury and property damage; General Aggregate limit of $2,000,000; Products and Completed Operations Aggregate limit of $2,000,000 and Personal & Advertising Injury limit of $2,000,000, written on an occurrence form . If the Services involve explosive, underground or collapse risks, XCU will be included. If a general aggregate limit is used, either the general aggregate limit will apply separately to this Agreement or the general aggregate will be twice the required occurrence limit.
11.2. Cyber Liability Policy . Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy Services Agreement (General) Page 6 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
shall provide coverage for breach response costs, regulatory fines, and penalties as well as credit monitoring expenses.
11.3. Technology Professional Liability Errors & Omissions. Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failu re, data recovery, business interruption, cyber extortion, so cial engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of priva te information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines, and penalties as well as credit monitoring expenses.
11.4. Endorsements. The CGL and liability policies will contain or be endorsed with the following provisions:
11.4.1. The City, its officers, elected or appointed officials, employees, volunteers, and agents, are covered as additional insureds for liability arising out of the operations performed by or on behalf of Service Provider. The coverage will contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, volunteers, and agents.
11.4.2. The Service Provider’s insurance is primary and non-contributory with respect to all obligations assumed by Service Provider pursuant to this Agreement or any other services provided. Any insurance carried by City shall not contribute to, or be excess of insurance maintained by Service Provider, nor in any way provide benefit to Service Provider, its affiliates, officers, directors, employees, subsidiaries, parent company, if any, or agents.
11.4.3. The inclusion of more than one insured will not operate to impair or limit the rights of one insured against another, and the coverage will apply as though separate policies have been issued to each insured.
11.5. All Policies.
11.5.1. For all insurance policies required under this Agreement, prior to City’s execution of this Agreement, Service Provider will furnish the City with certificates and original endorsements effecting the required coverage. Each certificate of insurance will state that the coverage afforded by the policy or policies will not be reduced, cancelled, or allowed to expire without at least 30 days written notice to City, unless due to non-payment of premiums, in which case at least 10 days written notice is required. Notice required under this subsection will be sent by certified mail. Each required policy will include an endorsement providing that the insurer agrees to waive any right of subrogation it may have against the City. The endorsements will be on forms provided by City or as approved by City’s Risk Manager.
11.5.2. Any deductible or self-insured retention of $100,000 or more will be disclosed to the City prior to City’s execution of this Agreement and is subject to approval by the City.
11.5.3. If Service Provider does not keep all required insurance policies in full force and effect, the City may, in addition to other remedies under this Agreement, terminate or suspend this Agreement.
The coverage types and limits required pursuant to this Agreement shall in no way limit the liability of Service Provider.
12. CONFLICTS OF INTEREST. Service Provider warrants that as of the Effective Date of this Agreement it has no interest and will not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the Services. Service Provider further warrants that in the performance of the Services, Service Provider will not employ or enter into a subcontract with any person or entity having Services Agreement (General) Page 7 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
any such conflict of interest.
12.1. Financial Interest. Service Provider will not make or participate in making or in any way attempt to use Service Provider ’s position to influence a City decision in which Service Provider knows, or has reason to know, Service Provider has a financial interest other than the compensation promised by this Agreement. Service Provider represents that it has diligently conducted a search and inventory of its financial interests, as defined in the regulations promulgated by the Fair Political Practices Commission, and has determined that Service Provider does not, to the best of Service Provider’s knowledge, have a financial interest that would conflict with Service Provider’s duties under this Agreement. Service Provider will immediately notify the City in writing if Service Provider learns of a financial interest that may conflict with Service Provider’s obligations under this Agreement.
12.2. Covenant Against Contingent Fees. Service Provider warrants that it has not employed, retained, or entered into a contract with any person or entity, other than a bona fide employee working for the Service Provider, to solicit or secure this Agreement; and that it has not paid or agreed to pay any person or entity, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the making of this Agreement. For breach or violation of this warranty, the City may void this Agreement without liability or any further obligation to Service Provider, or, alternatively, may elect to deduct from payments due or to become due to Service Provider, the full amount of such fee, commission, percentage, brokerage fee, gift, or other consideration.
12.3. Statement of Economic Interest. If the City determines Service Provider (or any of its employees or Service Providers) is subject to disclosure requirements under the Political Reform Act (Government Code section 87100 et seq.), Service Provider (including any required employees or Service Providers) will complete and file a “Statement of Economic Interest ” (Form 700) with the City Clerk’s Office disclosing Service Provider’s financial interests.
13. COMPLIANCE WITH LAW.
13.1. Legal and Licensing Compliance. Service Provider will comply with all applicable federal, state and local laws, rules , and regulations related to the Services under this Agreement. Service Provider represents and warrants to City that Service Provider has and will keep in effect during the term of this Agreement all licenses, permits, qualifications , and approvals of whatsoever nature which are legally required for Service Provider to practice Service Provider's profession or perform the Services.
13.2. Nondiscrimination. At all times during the term of this Agreement, Service Provider will comply with all applicable federal, state, and local laws, rules, and regulations prohibiting discrimination based on race, ethnicity, color, national origin, religion, marital status, age, sex, sexual orientation, disability (including any physical or mental impairment that substantially limits a major life activity), medical condition, or any protected class.
13.3. Taxes. Service Provider will file tax returns as required by law and pay all applicable taxes on amounts paid pursuant to this Agreement. Service Provider will be solely liable and responsible to pay such taxes and other obligations, including, but not limited to, state and federal income and FICA taxes.
13.4. Provisions Deemed Inserted. Every provision of law required to be inserted or referenced in this Agreement will be deemed to be inserted or referenced.
14. GENERAL PROVISIONS.
14.1. Headings. The heading titles for each section of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
14.2. Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement will be Services Agreement (General) Page 8 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
construed as not containing that term, and the remainder of this Agreement will remain in full force and effect; provided, however, this section will not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
14.3. Governing Law, Jurisdiction, and Venue . The interpretation, validity, and enforcement of this Agreement will be governed and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement will be filed and heard in a court of competent jurisdiction in the County of Napa.
14.4. Attorney’s Fees . If any litigation is commenced to enforce or interpret this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred.
14.5. Assignment and Delegation . This Agreement will not be assigned or transferred in whole or in part, nor will any of the Service Provider’s duties be delegated without the City’s prior written consent. Any attempt to assign, transfer, or delegate this Agreement, in whole or any part, without the City’s prior written consent will be void and of no force or effect. A ny consent by the City to one assignment , transfer, or delegation will not be deemed to be consent to any subsequent assignment, transfer, or delegation.
14.6. Modifications. This Agreement may not be amended or modified orally . No amendment or modification of this Agreement is binding unless it is in a writing signed by both parties.
14.7. Waivers. No waiver of a breach, default, or duty under this Agreement will be effective unless it is in writing and signed by the party waiving the breach, default, or duty. Waiver of a breach, default, or duty under this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach, default, or duty under this Agreement.
14.8. Entire Agreement. This Agreement, including all documents incorporated herein by reference and the EULA, comprises the entire integrated understanding between the parties concerning the Services.
This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. If any provision in any document attached or incorporated into this Agreement conflicts or is inconsistent with a provision in the body of this Agreement, the provisions in the body of this Agreement will control over any such conflicting or inconsistent provisions.
14.9. Interpretation. Each party to this Agreement has had an opportunity to review the Agreement, and to consult with its respective legal counsel regarding the meaning of the Agreement. Accordingly, Civil Code Section 1654 will not apply to interpret any uncertainty in the meaning of the Agreement.
[Signature page follows.]
Services Agreement (General) Page 9 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
15. SIGNATURES.
15.1. Counterparts. This Agreement may be executed in counterparts, each one of which is deemed an original, but all of which together constitute a single instrument.
15.2. Signatures; Electronic Signatures . The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Service Provider and the City. The parties agree that this Agreement may be executed and transmitted electronically and that electronic signatures shall have the same force and effect as original signatures in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq.; the California Uniform Electronic Transactions Act, Civil Code Section 1633.1 et seq. and California Government Code Section 16.5.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective on the Effective Date set forth below.
CITY: SERVICE PROVIDER:
CITY OF NAPA, a California charter city Tablet Command, Inc., a Delaware corporation
By: By:
Steve Potter, City Manager William Pigeon, Chief Executive Officer
By:
Andrew Bozzo, Secretary
Date:
(“Effective Date”)
COUNTERSIGNED:
Joy Riesenberg, City Auditor
APPROVED AS TO FORM:
Michael W. Barrett, City Attorney
Services Agreement (General) Page 10 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
EXHIBIT “A”
SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE
Scope of Services
Service Provider shall provide the City with an application programming interface (API).
City shall direct incident data to the API at https://api.tabletcommand.com. Service Provider shall work with the City’s Information Technology Division to activate the CAD - integrated system and will launch the API upon completion of integration services and testing. Service Provider shall provide initial user training and orientation, and ongoing customer support.
Data Ownership
The City will own all right, title and interest in its City Data that is related to the services provided by this Agreement. Service Provider shall not access City user accounts or City Data, except (1) in the course of data center operations, (2) in respo nse to service or technical issues, (3) as required by the express terms of this Agreement or (4) at the City’s written request. The City acknowledges that, in the course of performing the services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, along with Service Provider’s Mobile Application and all intellectual property related thereto, the “Pre-existing Materials”) and that the same shall remain the sole and exclusive property of Service Provider.
Service Provider is authorized to share Automatic Vehicle Location (AVL) data with other Tablet Command Customers that have opted to participate in AVL Sharing. AVL Sharing is a reciprocal opt in – opt out feature.
Data Protection
Protection of personal privacy and data shall be an integral part of the business activities of the Service Provider to ensure there is no inappropriate or unauthorized use of City information at any time. To this end, the Service Provider shall safeguard the confidentiality, integrity and availability of City information and comply with the following conditions:
a. The Service Provider shall implement and maintain appropriate administrative, technical, and organizational security measures to safeguard against unauthorized access, disclosure or theft of personal data and non-public data. Such security measures shall be in accordance with recognized industry practice and not less stringent than the measur es the Service Provider applies to its own personal data and non -public data of similar kind.
b. All data obtained by the Service Provider in the performance of this Agreement shall become and remain the property of the City. c. All Personal Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, the Service Provider is responsible for encryption of the Personal Data. Any stipulation of responsibilities will Services Agreement (General) Page 11 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
identify specific roles and responsibilities and shall be included in the SLA attached as Exhibit A-1.
d. Unless otherwise stipulated, the Service Provider shall encrypt all Non - Public Data at rest and in transit. The City shall identify data it deems as Non-Public Data to the Service Provider. The level of protection and encryption for all non-public data shall be identified and made a part of this contract.
e. At no time shall any data or processes – that either belong to or are intended for the use of a City or its officers, agents or employees – be copied, disclosed or retained by the Service Provider or any party related to the Service Provider for subsequent use in any transaction that does not include the City.
f. The Service Provider shall not use any information collected in connection with the service issued from this proposal for any purpose other than fulfilling the service.
Data Location
The Service Provider shall provide its services to the City and its end users solely from data centers in the U.S. Storage of City Data at rest shall be located solely in data centers in the U.S. The Service Provider shall not allow its personnel or contra ctors to store City Data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Service Provider shall permit its personnel and contractors to access City Data remotely only as requir ed to provide technical support.
The Service Provider may provide technical user support on a 24/7 basis using a Follow- the-Sun model, unless otherwise prohibited in this contract.
Security Incident
Service Provider shall inform the City of any Security Incident or Data Breach. a. Incident Response: The Service Provider may need to communicate with outside parties regarding a Security Incident, which may include contacting law enforcement, fielding media inquiries and seeking external expertise as mutually agreed upon, defined by law or contained in the contract.
Discussing Security Incidents with the City should be handled on an urgent as-needed basis, as part of Service Provider communication and mitigation processes as mutually agreed upon, defined by law or contained in the contract.
b. Security Incident Reporting Requirements: The Service Provider shall report a Security Incident to the appropriate City Identified Contact immediately.
c. Breach Reporting Requirements: If the Service Provider has actual knowledge of a confirmed data breach that affects the security of any City content that is subject to applicable data breach notification law, the Service Provider shall (1) promptly noti fy the appropriate City Identified Contact within 24 hours or sooner, unless shorter time is required by applicable law, and (2) take commercially reasonable measures to address the data breach in a timely manner.
Services Agreement (General) Page 12 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
Breach Responsibilities
This section only applies when a data breach occurs with respect to personal data within the possession or control of the Service Provider.
a. The Service Provider, unless stipulated otherwise, shall immediately notify the appropriate City Identified Contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident.
b. The Service Provider, unless stipulated otherwise, shall promptly notify the appropriate City Identified Contact within 24 hours or sooner by telephone, unless shorter time is required by applicable law, if it confirms that there is, or reasonably beli eves that there has been a data breach. The Service Provider shall (1) cooperate with the City as reasonably requested by the City to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) documen t responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary.
Notification of Legal Requests
The Service Provider shall contact the City upon receipt of any electronic discovery, litigation holds, discovery searches and expert testimonies related to the City’s data under this contract, or which in any way might reasonably require access to the data of the City.
The Service Provider shall not respond to subpoenas, service of process and other legal requests related to the City without first notifying the City, unless prohibited by law from providing such notice.
Termination and Suspension of Service
a. In the event of a termination of the contract and upon request, the Service Provider shall promptly and securely delete all City Data, in all of its forms, in Service Provider’s systems or otherwise in its possession or under its control. City Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)-approved methods. Certificates of destruction shall be provided to the City.
b. During any period of service suspension, the Service Provider shall not take any action to intentionally erase any City Data.
c. The City shall be entitled to any post-termination assistance generally made available with respect to the services unless a unique data retrieval arrangement has been established as part of the SLA.
Background Checks
The Service Provider shall conduct criminal background checks and not utilize any staff, including subcontractors, to fulfill the obligations of the Agreement who have been convicted of any crime of dishonesty, including but not limited to criminal fraud, or Services Agreement (General) Page 13 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
otherwise convicted of any felony or misdemeanor offense for which incarceration for up to 1 year is an authorized penalty. The Service Provider shall promote and maintain an awareness of the importance of securing the City’s information among the Service Provider’s employees and agents.
Access to Security Logs and Reports
The Service Provider shall provide reports to the City, upon City request, in a format agreed to by both the Service Provider and the City. Reports shall include latency statistics, user access, user access IP address, user access history and security logs for all City files related to this contract.
Agreement Audit
The Service Provider shall one time per calendar year allow the City to audit conformance to the Agreement terms. The City may perform this audit or contract with a third party who is subject to a written confidentiality agreement with Service Provider at its discretion and at the City’s expense. Such audit will be limited to Service Provider’s relevant books and records and shall be conducted during Service Provider’s regular business hours.
Data Center Audit
The Service Provider shall provide certifications from its data center provider. The Service Provider is preparing for a (SOC) 2 audit.
Change Control and Advance Notice
The Service Provider shall give 5 business days advance notice to the City of any upgrades (e.g., major upgrades, minor upgrades, system changes) that may impact service availability and performance.
Non-disclosure and Separation of Duties
The Service Provider shall enforce separation of job duties, require commercially reasonable non-disclosure agreements, and limit staff knowledge of City Data to that which is absolutely necessary to perform job duties.
Import and Export of Data
Service Provider shall import or export data, either in piecemeal or in its entirety, and provide to it the City upon request.
Responsibilities and Uptime Guarantee
The City shall be responsible for the acquisition and operation of all hardware, and network support that is physically located on City premises related to the services being provided. The Service Provider shall provide the interface software that will be hosted on City premises and will provide ongoing support for the deployment, configuration, and testing of said software. Additionally, the City shall be responsible for hardware that is located within facilities, including within vehicles, under City’s co ntrol. The technical and professional activities required for establishing, managing and maintaining the interface are the responsibilities of the Service Provider and will be executed with the supervision Services Agreement (General) Page 14 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
and support of City IT staff. Service Provider’s services shall be redundant and fault tolerant. The system shall be available 24/7/365 (with agreed -upon maintenance downtime), with an average uptime greater than 99.9%, and provide service to customers as defined in the SLA. Service Provider is not responsible for uptime of the associated Computer Aided Dispatch (CAD) system or any City maintained infrastructure utilized in support of the interface.
Subcontractor Disclosure
The Service Provider shall identify all of its subcontractors providing services in connection with this Agreement.
Business Continuity and Disaster Recovery
The Service Provider shall provide a business continuity and disaster recovery plan upon request and ensure that the City’s recovery time objective (RTO) of 24 hours is met.
Web Services
The Service Provider shall use Web services exclusively to interface with the City’s data in near real time when possible.
Encryption of Data at Rest
The Service Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140 -2, Security Requirements for Cryptographic Modules for all personal data, unless the City approves the storage of personal da ta on a Service Provider portable device in order to accomplish work as defined in this Statement of Work.
Initial User Training
a. Upon launch of the API, Service Provider shall provide formal end user training to City users in one of two formats, as agreed to by City and Service Provider: web-based training or on-site direct delivery training. b. Training shall consist of a general orientation to the Tablet Command user interface and a review of application and device settings. City users shall be trained to the various ways Tablet Command Support can be accessed (telephone, email, email from within the Tablet Command Application). c. City users shall be exposed to the incident management progression from call dispatch through call conclusion. Specific training is provided in the following areas: (i) acknowledge Apple Push Notification and switch to Overview screen; (ii) review feat ures of overview screen; (iii) review map view and layer access setting; (iv) review access to turn by turn navigation; (v) select “Manage Incident” and switch to Units View; (vi) review selection and use of Templates and Checklists; (vii) review resource management in the Units View; (viii) review detail available in Resource Tiles; (ix) review PAR Timer setting and use; (x) review Map View setting and access to agency map layers; (xi) review strategies to manage resources spatially in Map View; (xii) revi ew the features of Real Time Sync; (xiii) peer -to-peer Services Agreement (General) Page 15 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
incident sharing; (xiv) transfer of command; (xv) transfer of command provisions for device failure and/or abandoned device; (xvi) Activity View; (xvii) review Add Notes to Incident; (xviii) review weather URL access; (xix) review export Activity Log/Map; and (xx) review End Incident.
Post Deployment Support.
Service Provider shall provide ongoing post deployment support to City users and account administrators, as provided in the SLA.
Services Agreement (General) Page 16 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
Exhibit “A-1”
Service Level Agreement
Uptime
Service Provider provides a guarantee of 99.9% uptime for its API (8.76 Hours downtime per year). However, Service Provider strives for 100% uptime for all services.
Since inception, Service Provider has achieved better than 99.99% uptime. Its system is distributed across multiple data centers in multiple availability zones in order to achieve high availability. Fundamentally, even without connectivity or updates from CAD, the application will continue to function and be able to manage incident(s).
Response Time
Service Provider support will acknowledge critical customer requests within 2 hours between the hours of 8:00 am and 5:00 pm Pacific Standard Time (PST) Monday through Sunday. Service Provider will acknowledge requests received outside these hours by 10:00 am PST the following day. Service Provider will acknowledge routine support requests within 2 business days.
Support Requests
Service Provider support can be accessed in the following ways:
• Through the Tablet Command support website: support.tabletcommand.com • Support Request from within the Tablet Command Application • Directly by e-mail: [email protected]
• Telephone support: 877-998-2639
Service Provider shall monitor all interfaces 24/7/365.
Notifications
Service Provider requires that the City provide two notification methods or contacts including email and SMS numbers that can be utilized to report issues related to Tablet Command. These two methods will be used to notify the customer’s agency(ies) appropriately. A minimum of one operational contact and one technical contact will be provided by the City.
Service Provider support staff shall be alerted if calls are not received from CAD at intervals custom configured by the Service Provider. When an interruption is detected it will be confirmed and an email message will be sent to City identified contacts. Service Provider will communicate any loss of connection related to the CAD interface provided that the interface provides a heartbeat. Service Provider will provide notification of loss of service within 1 hour between the hours of 8:00 am and 5:00 pm PST. Service Services Agreement (General) Page 17 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
Provider will communicate loss of connection outside these hours by 9:00 am PST the following day. Service Provider will also monitor the interval between updates received from the interface. If updates are interrupted, notification will be made in accordance with the timing outlined above.
Service Provider shall notify Customer in advance of any activities that have the potential to impact service (infrastructure updates, redeployments, etc.)
Services Included in Service Level Agreement:
• Guarantee 99.9% uptime for CAD Interface API
• Tablet Command Apple Push Notification Service
• Tablet Command CAD API
• Tablet Command Synchronization API (Not including Real Time Sync) • Web Portal - api.tabletcommand.com
Interface Software
Service Provider strives to build the most reliable interface software possible. Due to the fact that the interface is dependent on a number of variables within the City’s infrastructure, Service Provider is unable to assume responsibility for service interruptions at the customer interface level. Service Provider operates robust monitoring and notification services to ensure that changes in the City’s interfaces are detected and resolved in the most timely and efficient manner possible.
Monitoring
Service Provider is monitored by third party monitoring service Pingdom. The City can view the status of Tablet Command API at any time at:
http://status.tabletcommand.com/
Not covered by Service Level Agreement:
• System wide internet outages including issues such as DNS provider failure, etc. • Internet connectivity of customer interface, or devices. • Network changes affecting Tablet Command interface.
• Scheduled downtime that the customer is notified for
• Real Time Sync is excluded
• TabletCommand.com website is excluded
• Incident notifications as these are dependent upon connectivity of the device and also Apple or Google Push Notification service.
• APN of incidents delivered to Apple. Tablet Command is not responsible for notifications
not being delivered by Apple or due to no or poor data connectivity of the customer’s
device.
Services Agreement (General) Page 18 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
• Connectivity of the device to the Internet is not included • Mapping is not included as it is dependent on ESRI ArcGIS Online service.
City Identified Contacts:
Name Phone E-Mail
Operations Gus Ulloth 707-257-9665 [email protected] Dispatch Center (24/7) On-Duty Dispatch
Supervisor
707-257-9223
IT Support CAD Manager Travis Enders 717-576-7937 [email protected] Chief Information Officer Scott Nielson 707-257-9400 [email protected] Tablet Command Notification Contacts:
Website Application Support Web Service Telephone
Tablet
Command
Support
support.tabletcommand.com Settings>
App Support
[email protected] 877-998-2639
Services Agreement (General) Page 19 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
EXHIBIT “B”
RATES AND CHARGES
1. The total cost for Services rendered by Service Provider under this Agreement shall not exceed $ 125,000 per fiscal year of the Agreement following the Effective Date, consistent with the following:
Services Agreement (General) Page 20 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
2. The City’s obligation to pay Service Provider for services under this Agreement shall commence on the effective date of this Agreement. Service Provider shall issue invoices annually on the anniversary of the Effective Date. City shall pay Service Provider within 30 days after receipt of Service Provider’s invoice.
3. Beginning one (1) year after the Effective Date, Service Provider may, by written notice delivered to City sixty (60) days in advance, increase the prices for those Services listed above that are provided on an annual subscription basis. Any such price increase shall not exceed 5% in any consecutive twelve (12) month period or Service Provider’s then-current retail pricing.
4. City may implement changes to the services listed above at any time throughout the term of this Agreement by providing thirty (30) days written notice to Service Provider. At the time of such change requests, Service Provider will provide to City an itemized quote detailing any credits or additional costs generated by the changes. Credits will be applied to the City’s account; additional costs will be invoiced to City. City agrees to pay such amounts within thirty (30) days after receipt of the invoice.
5. NON-REIMBURSABLE EXPENSES
Service Provider shall be responsible for all costs and expenses incurred by Service Provider, personnel of Service Provider and subcontractors of Service Provider, in connection with this Agreement, including, without limitation, payment of salaries, fringe benefit contributions, payroll taxes, withholding taxes, and other taxes or levies, office overhead expenses, travel expenses, telephone and other telecommunication expenses, and document reproduction expenses.
Services Agreement (General) Page 21 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
EXHIBIT “C”
EULA
TABLET COMMAND END USER SOFTWARE LICENSE AGREEMENT AND TERMS OF
SERVICE
1. ACCEPTANCE OF TERMS
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT AND TERMS OF SERVICE (“TERMS”) BEFORE CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING TABLET COMMAND, INC.’S MOBILE APPLICATION (THE “MOBILE APPLICATION”) ACCOMPANYING THIS LICENSE. BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE MOBILE APPLICATION, YOU (“YOU”, “YOUR” OR “USER”)
ARE ENTERING INTO AND AGREEING TO BE BOUND BY THESE TERMS AND THE TERMS AND CONDITIONS OF THE TABLET COMMAND, INC. PRIVACY POLICY LOCATED AT WWW.TABLETCOMMAND.COM/PRIVACY (THE “PRIVACY POLICY”) AND INCORPORATED HEREIN BY THIS REFERENCE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE “ACCEPT” BUTTON AND YOU MAY NOT USE THE MOBILE APPLICATION.
If you are accessing the Mobile Application in your capacity as an employee, agent, or representative of a Tablet Command, Inc. customer who has entered into a separate agreement for services with Tablet Command, Inc., your use of the Mobile Application also is subject to such agreement. In the event of a conflict between such agreement and these Terms, such agreement will prevail.
Tablet Command, Inc. reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms periodically. Such modifications shall be effective immediately upon your accessing the Mobile Application. Your continued use of the Mobile Application following the posting of changes to these Terms will mean that you accept those changes. Tablet Command, Inc. reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Mobile Applicati on (or any part thereof). Tablet Command, Inc. shall not be liable to any user or other third party for any such modification, suspension or discontinuance except as expressly provided herein. By using the Mobile Application, you warrant to Tablet Command, Inc. that you will not use the Mobile Application, or any of the content obtained from the Mobile Application, for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the Mobile Application automatically terminates. You represent and warrant that you are of legal age in your jurisdiction to create binding contractual and financial obligations and to assume any liability that you may incur as a result of your use of the Mobile Application. If you are accepting these Terms on behalf of an entity, you represent and warrant that you have the prior authority and approval by such entity to accept and agree to these Terms.
2. LICENSE GRANT
Tablet Command, Inc. grants you a revocable, non-exclusive, non-transferrable, non-assignable limited right to install and use the Mobile Application on a device controlled by you (each a “Mobile Device”), and to access and use the Mobile Application on such Mobile Device strictly in accordance with the terms and conditions of these Terms and the applicable rules described in Section 9. You shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Mobile A pplication; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Mobile Application; (iii) Services Agreement (General) Page 22 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
violate any applicable laws, rules or regulations in connection with your access or use of the Mobile Application; or (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Tablet Command, Inc. or its affil iates, partners, suppliers or the licensors of the Mobile Application or otherwise obscure or modify the any manner in which the material is displayed by means of the Mobile Application. In addition, you grant Tablet Command, Inc. the irrevocable, royalty -free, fully paid-up right to view, record and analyze your use of the Mobile Application, including but not limited to technical information about your iOS device (including Device UUID), computer, your physical location, system and application software, and peripherals. RESTRICTED USE OF MOBILE APPLICATION
The Mobile Application is not a substitute for sound fire management techniques and practices IN EMERGENCY SITUATIONS. The Mobile Application is not intended to be used, and shall not be used, by you, or any entity that you represent, to protect or be used as a resource, tool, application or otherwise for fire safety or rescue on behalf of the public or for any employee or agent of the entity that you represent. IF YOU DO NOT AGREE WITH any statements in this section 3, OR DO NOT INTEND TO ACT IN ACCORDANCE WITH OR ABIDE BY THE STATEMENTS IN THIS section 3, THEN DO NOT CLICK THE “ACCEPT” BUTTON AND YOU MAY NOT USE THE MOBILE APPLICATION. TABLET COMMAND, INC., AND ITS OFFICERS,
DIRECTORS, STOCKHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS
AND ASSIGNS SHALL NOT BE LIABLE OR RESPONSIBLE FOR YOUR USE OF THE MOBILE
APPLICATION IN VIOLATION OF THE TERMS OF RESTRICTED USE DESCRIBED IN THIS SECTION 3.
4. DESCRIPTION OF SERVICES
The Mobile Application is owned and operated by Tablet Command, Inc. for the purpose of assisting users in managing their human resources and apparatus during an emergency (the “Purpose”). Using the Mobile Application shall not be used as a substitute for using sound risk management techniques when dealing with emergency situations. THE MOBILE APPLICATION
SHALL NOT BE USED BY YOU IN VIOLATION OF THESE TERMS, INCLUDING, BUT NOT
LIMITED TO, THE RESTRICTED USE OF THE MOBILE APPLICATION AS DESCRIBED IN SECTION 3.
5. NO RESALE OF SERVICE.
You agree not to sell, resell, or offer for any commercial purposes, any portion of the Mobile Application, use of the Mobile Application, or access to the Mobile Application.
6. GENERAL PRACTICES REGARDING USE AND STORAGE
Tablet Command, Inc. may establish general practices and limits concerning use of the Mobile Application. In addition, you will use the Mobile Application in compliance with all applicable international, state, federal and local laws and in accordance with these Terms. You may not access or use the Mobile Application for any purpose other than that for which Tablet Command, Inc. makes it available. Without limiting any other remedies, Tablet Command, Inc. may suspend or terminate your Mobile Application account if we suspect that you have engaged in unlawful or prohibited activity in connection with the Mobile Application. Tablet Command, Inc. reserves the right, in its sole discretion to investigate and take appropriate legal action against anyone who, in Tablet Command, Inc.’s sole discretion violates this provision. You acknowledge and understand that certain portions of the Mobile Application may require and utilize phone service, data access or text messaging capability.
7. TERMINATION
Tablet Command, Inc. may terminate a user’s account in Tablet Command, Inc.’s absolute Services Agreement (General) Page 23 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
discretion and for any reason. Tablet Command, Inc. is especially likely to terminate for reasons that include, but are not limited to, the following: (1) violation of these Terms; (2) use of the Mobile Application in a manner inconsistent with the Purpose; (3) a user’s request for such termination; or (4) as required by law, regulation, court or governing agency order. Tablet Command, Inc.’s termination of any user’s access to the Mobile Application may be effected without notice and, on such termination, Tablet Command, Inc. may immediately deactivate or delete user’s account and/or bar any further access to such files. Tablet Command, Inc. shall not be liable to any user or other third party for any termination of that user’s access or account hereunder. In addition, a user’s request for termination will result in deactivation but not necessarily deletion of the account.
8. INDEMNITY; DISCLAIMER; LIMITATIONS OF LIABILITY
Each user shall indemnify, defend and hold harmless Tablet Command, Inc., and its affiliates and their respective officers, employees and agents, from any and all claims, demands, damages, costs, and liabilities including reasonable attorneys’ fees, due to or arising out of that user’s acts or omissions, including claims arising out of that user’s use of the Mobile Application; or his or her violation of these Terms.
EACH USER’S USE OF THE MOBILE APPLICATION IS AT HIS OR HER SOLE RISK. THE MOBILE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TABLET COMMAND, INC. ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS,
DELETION, MISDELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. TABLET COMMAND, INC. EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPECIFICALLY, TABLET COMMAND, INC. MAKES NO WARRANTY THAT (i) THE MOBILE APPLICATION OR ANY SERVICE THEREON WILL MEET YOUR REQUIREMENTS AND (ii) ANY USER ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR -FREE. EXCLUDING ONLY DAMA GES ARISING OUT OF TABLET COMMAND, INC.’S WILLFUL MISCONDUCT, TABLET COMMAND, INC. SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY USER’S USE OR INABILITY TO USE ANY MOBILE APPLICATIO N OR SERVICES THEREON. IN NO EVENT SHALL TABLET COMMAND, INC.’S TOTAL CUMULATIVE LIABILITY TO ANY USER OR OTHER PARTY UNDER THESE TERMS OF SERVICE OR OTHERWISE EXCEED $50.00.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING HEREIN SHALL BE DEEMED TO CREATE AN AGENCY, PARTNERSHIP,
JOINT VENTURE, EMPLOYEE -EMPLOYER OR FRANCHISOR -FRANCHISEE RELATIONSHIP OF ANY KIND BETWEEN TABLET COMMAND, INC. AND ANY USER OR
OTHER PERSON OR ENTITY NOR DO THESE TERMS OF SERVICE EXTEND RIGHTS TO ANY THIRD PARTY. SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS
REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEM PORARILY INTERRUPT SERVICES OR ACCESS TO THE MOBILE APPLICATION. THE DISCLAIMERS OF
WARRANTY AND LIMITATIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO ANY
DAMAGES OR INJURY CAUSED BY THE FAILURE OF PERFORMANCE, ERROR,
OMISSION, INTERRUPTION, DELETION, DEF ECT, DELAY IN OPERATION OR
TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR
DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY
ASSET, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOUR, NEGLIGENCE OR ANY OTHER C OURSE OF ACTION BY TABLET COMMAND, INC. Any claim or cause of action arising out of or related to use of the Mobile Application or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Services Agreement (General) Page 24 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
9. GENERAL
The Terms constitute the entire agreement between each user and Tablet Command, Inc. and govern each user’s use of the Mobile Application, superseding any prior or contemporaneous agreements. Each user may be subject to additional terms and conditions that may apply when that user uses affiliate services, third party content or third party software. The Terms and the relationship between each user and Tablet Command, Inc shall be governed by the laws of the State of California without regard to its conflict of law provisions and the parties agree that the exclusive venue for any dispute arising hereunder shall be the state and federal courts located in the City and County of San Francisco, California. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Tablet Command, Inc. reserves the right to share or transfer personally identifiable information and aggregate information to a third party should Tablet Command, Inc. ever file for bankruptcy or in the event of a sale, merger or acquisition of Tablet Command, Inc. The Mo bile Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S.
Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
10. PRIVACY COMPLIANCE
A. Personal Information Defined . “Personal Information” for purposes of this section means information that Tablet Command, Inc. processes on your behalf that identifies, relates to, describes, or is reasonably capable of being associated with or linked to a particular identifiable person or household and includes, without limitation, “personal information” as defined by the California Consumer Privacy Act of 2018, as amended, and as defined by the Personal Information Protection and Electronic Documents Act (Canada). For avoidance of doubt and not limitation, de-identified or aggregated information that is no longer reasonably capable of being associated with or linked to a particular identifiable person or household (“Anonymized Information”), will not be deemed Personal Information even if such information was derived from Personal Information. Tablet Command, Inc. may use and disclose Anonymized Information without limitation or restriction.
B. Restrictions on Use. Unless specifically directed or authorized by you, Tablet Command, Inc. will not (i) sell or share (for cross-context behavioral advertising purposes) Personal Information; (ii) retain, use, or disclose Personal Information for any purpose other than the specific purpose of performing the services contemplated by these Terms, including retaining, using, or disclosing Personal Information for a commercial purpose other than providing the services contemplated by these Terms; (iii) retain, use, or disclose Personal Information outside of the direct business relationship between you and Tablet Command, Inc.; or (iv) combine your Personal Information with Personal Information Tablet Command, Inc. processes on behalf of third parties or it self to the extent prohibited by applicable privacy and data security laws. Notwithstanding the foregoing, Tablet Command, Inc. may retain, use, or disclose Personal Information as reasonably necessary to fulfill or demonstrate compliance with its legal obligations.
C. Consent for Use. You will provide all notices and obtain all consents required by applicable laws and regulations for Tablet Command, Inc. to process Personal Information in connection with the Mobile Application and services contemplated by these Terms including, withou t limitation, Tablet Command, Inc.’s transfer to and processing of Personal Information in the United States of America, Canada, and Australia. You will use the Mobile Application and services contemplated by these Terms in compliance with all applicable laws and regulations.
Services Agreement (General) Page 25 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
D. Data Security. Tablet Command, Inc. will implement reasonable administrative, technical, and physical safeguards to protect Personal Information in its control from unauthorized or unlawful access, disclosure, or use. Without limiting the generality of the foregoing, T ablet Command, Inc. will (i) encrypt all Personal Information while in transit from/to you or a third party designated by you to/from Tablet Command, Inc. via SSL 256 bit AES encryption or equivalent; (ii) store Personal Information on se rver(s) located in SSAE 16 certified data center(s); and (iii) not disclose Personal Information to third-party subcontractors unless such subcontractors have entered into a written agreement with Tablet Command, Inc. imposing privacy, data security, and confidentiality obligations on such subcontractors no less stringent than those imposed on Tablet Command, Inc. in these Terms. You give your consent to Tablet Command, Inc.’s use of subcontractors to process Personal Information on your behalf so long as t he foregoing criteria are satisfied, and you waive any right you may have under applicable privacy and data security laws to receive notice of Tablet Command, Inc.’s appointment or removal of any subcontractor.
You will not knowingly introduce, or negligently permit to be introduced, into our computer systems, databases, hardware, or software, any virus, malware, ransomware, or other contaminants (including, but not limited to, codes, commands, instructions, devices, techniques, bugs, or flaw) that may be u sed to access, alter, delete, threaten, infect, damage, disable, or inhibit our full use of our computer systems, databases, hardware, or software.
E. Cooperation. Tablet Command, Inc. will reasonably cooperate with you, at your cost, (i) in response to data subject requests for access, correction, deletion, or to exercise any other right provided by applicable laws and regulations to the use of such data subject’s Personal Information and (ii) in response to your requests for assistance in connection with a data protection impact assessment, risk assessment, or similar analysis required by applicable privacy and data security laws. In the event Tablet Command, Inc. receives a data subject request relating to Personal Information, Tablet Command, Inc. will notify such data subject that it is unable to respond to the request without authorization from you and will direct such data subject to contact you directly to make their request.
F. User IDs. You will use best efforts to protect the confidentiality of user IDs, passwords, and other access credentials used by you or your employees, agents, representatives, and authorized users to access any of the services provided by Tablet Command, Inc. You will provide prompt notice to Tablet Command, Inc. of any actual or suspected compromised user IDs, passwords, or other access credentials.
G. Notice of Noncompliance. Tablet Command, Inc. will provide notice to you if Tablet Command, Inc. determines it can no longer process your Personal Information in compliance with these Terms or applicable privacy and data security laws. You may, at your cost and upon at least thirty (30) days prior written notice to Tablet Command, Inc., take reasonable and appropriate steps to mitigate Tablet Command, Inc.’s processing of Personal Information that is not in compliance with these Terms or applicable privacy and data security laws.
H. Audit. No more than once per twelve -month period, at your cost, you or your designee may audit Tablet Command, Inc.’s data security and privacy practices related to Personal Information.
You will provide at least thirty (30) days’ prior written notice of your i ntent to conduct such audit and will reasonably cooperate with Tablet Command, Inc. to minimize disruption to Tablet Command, Inc.’s day-to-day business operations as a result of such audit.
I. Personal Information Retention. Upon termination of your account, Tablet Command, Inc. will return or destroy, at your option, the Personal Information Tablet Command, Inc. processes on your behalf. Notwithstanding the foregoing, if return of such Personal Information is impractical, T ablet Command, Inc. may destroy such Personal Information. Further notwithstanding the foregoing, Tablet Command, Inc. may retain such Personal Information (i) stored in an archive or backup system until such Services Agreement (General) Page 26 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
Personal Information is deleted from such system in the normal course of Tablet Command, Inc.'s business and (ii) as reasonably necessary to fulfill or demonstrate compliance with its legal obligations or to defend or pursue a legal claim.
L. Opt -In Data Disclosures. From time to time Company may make available features or integrations that permit Customer to make certain data, which may include Personal Information, available to other Company customers or to third parties. If Customer opts -in to the use of such features or integrations, Customer authorizes Company to make Customer’s data available as explained during the opt -in process. Customer agrees that company will have no liability to Customer related to data disclosed to other Company customers or third parties in connection with such features or integrations. Customer may withdraw its consent at any time by providing written notice to Company at the address for notice listed below, or via an email message sent to [email protected].
I. M. AVL Data. Company is hereby authorized to share Automatic Vehicle Location (“AVL”) data with other Company customers. Customer acknowledges and agrees that Company will have no liability to Customer related to AVL data shared with other Company customer s. Company acknowledges and agrees that Customer retains the ability to opt out of participation in this AVL data sharing agreement at any time by providing written notice to Company at the address for notice listed below, or via an email message sent to [email protected].
11. ADDITIONAL OBLIGATIONS SPECIFIC TO YOUR MOBILE DEVICE.
Without limitation, your use of the Mobile Application with any Apple® device, including iPhone®, iPod touch® and iPad ™ mobile digital device, is subject to the rules established by Apple Inc., including those terms set forth in the App Store Terms and Conditions located at http://www.apple.com/legal/itunes/ww/, the applicable provisions of which are incorporated herein by this reference. In the event of any failure of the Mobile Application to conform to any applicable warranty, You may notify Apple Inc. a nd Apple Inc. will refund to you the purchase price for the Mobile Application, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever to you with respect to the Mobile Application. Apple Inc. is not liable for any claims by you or any third party relating to the Mobile Application, or your possession or your use of the Mobile Application, including, but not limited to, (i) any product liability claims; (ii) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. iPhone, iPod touch and iPad are trademarks of Apple Inc.
Supplemental Terms For Apple iPhone, iPod Touch and iPad Users
These terms supplement and are in addition to the terms of the License for users who purchase and/or install the Mobile Application on Apple, Inc. (“Apple”) iPhone, iPod touch and/or iPad products (collectively, “Apple Devices”):
1. Through your purchase, provided that you comply with the terms of this License, you are acquiring and Tablet Command, Inc. grants you a personal, limited, non -exclusive and non - transferable license to install and use the Mobile Application on authorized Apple Device(s) for personal, non-commercial use and subject to the rules set forth in Apple’s App Store Terms and Conditions, the applicable provisions of which are incorporated herein by this reference. This License does not entitle you to receive from Tablet Command, Inc. hard -copy documentation, support, telephone assistance or enhancements or updates to the Mobile Application.
2. You agree that Apple has no obligation whatsoever to furnish any maintenance and support services regarding the Mobile Application.
3. In the event of any failure of the Mobile Application to conform to any applicable warranty, You may notify Apple Inc. and Apple Inc. will refund to you the purchase price for the Mobile Application, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever to you with respect to the Mobile Application.
Services Agreement (General) Page 27 of 27 Form 2.1.1 (2022-09-01) Tablet Command Software
4. Apple shall not be responsible for any claims by you or any third party relating to your possession and/or use of the Mobile Application, including but not limited to: (i) product liability claims; (ii) any claim that the Mobile Application fails to confor m to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection laws or similar legislation; and (iv) claims by any third party that the Mobile Application or your possession and use of the Mobile Application infringes on the intellectual property rights of the third party.
5. You represent and warrant that you are not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
6. You agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms and that upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.