DocID #34720v1
CITY OF RICHMOND
CONTRACT AMENDMENT
The parties to this Contract Amendment do mutually agree and promise as follows:
1. Parties. The parties to this Contract A mendment are the City of Richmond, a public body corporate and politic, and the following named Contractor:
Contractor Name:
Street Address:
City, State, Zip Code:
Contact Person:
Telephone: Email:
Business License No:
A California: corporation, limited liability corporation, general partnership, limited partnership, individual, non-profit corporation, individual dba as [specify:] _________________________________________ other [specify:] ___________________________________________________
2. Purpose. This Contract Amendment is being entered into t o amend the following Contract between City and Contractor (list terms in effect on the date of initial Contract approval):
City Council Approval Date/City
Manager Execution Date: ____________________________
Effective Date: ___________________; Termination Date: ____________________________ Payment Limit: ___________________.
[check box if applicable] The Contract was previously amended, as described in the amendment history attached to this Contract Amendment, and the terms and conditions of any amendments shall be deemed to be a part of the Contract.
3. Contract Provisions. The parties hereto agr ee to continue to abide by those terms and conditions of the Contract, including any amendments thereto, which are unaffected by this Contract Amendment, and which shall remain in full force and effect.
Department:
City Project Manager:
City Project Manager E-mail:
City Project Manager Phone No:
Vendor No:
Contract No:
Description of Services:
Amendment No. ___ modifies the (check all that apply):
Term Payment Limit Service Plan Complete the Amendment History page if this Amendment is the 2nd or subsequent amendment.
DocID #34720v1 Modified January 14, 2025
4. Amendment Provisions. This Contract Amendment is subject to the Amendment Provisions attached hereto, which are incorporated herein by reference, and which control over any conflicting provisions of the Contract.
5. Cit
y of Richmond Business License Active Status Maintained. Pursuant to Municipal Code Section
7.04.030, the Contractor must maintain its City of Richmond business license for this Contract Amendment to be deemed to be in effect.
6. Insur
ance Coverage Updated and Maintained. Pursuant to the Contract, th e Contractor shall provide the City with updated insurance certificates, and the Contractor shall maintain insurance coverage, for this Contract Amendment to be deemed to be in effect.
7. Author
ity; Counterparts; Signatures. Each of the signatories her eto represents and warrants that he or she has the authority to execute this Contract Amendment for the Party on whose behalf he or she is executing this Contract Amendment. This Contract Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties may rely on electronic or scanned signatures as originals. Delivery of an executed signature page of this Contract Amendment by electronic format (including pdf) shall be the same as delivery of an original executed signature page.
CIT
Y OF RICHMOND,
a municipal corp
oration
By: _______________________________
_
Tit
le: ______________________________
Dat
e Signed: ________________________
I he
reby certify that this Amendment has been
approved by the City Council or executed by the
City Manager.
By: ________________
_______________
City Clerk
Appr
oved as to form:
By: _______________________________
City Attorney
[CONTRACTOR NAME]
(*If applicable, the Corporation Chairperson of the
Board, President, or Vice-President should sign
below.)
By: ____________________________________
Title: __________________________________
Date Signed: ____________________________
(*If applicable, the Corporation Chief Financial Officer or Assistant Treasurer, or Secretary or Assistant
Secretary should sign below.)
By: ___________________________________
Title: __________________________________
*(NOTE: Pursuant to California Corporations
Code Section 313, if Contractor is a corporation or
nonprofit organization, this Contract (1) should be
signed by the Chairperson of the Board, President
or Vice-President and the Chief Financial Officer
or Assistant Treasurer, or Secretary or Assistant
Secretary; (2) should have both signatures
conform to designated representative groups
pursuant to Corporations Code Section 313.)
DocID #34720v1 Modified January 14, 2025
AMENDMENT PROVISIONS (TERM, PAYMENT LIMIT AND/OR SERVICE PLAN) Check all that apply:
TERM
PAYMENT
LIMIT
SERVICE
PLAN
Paragraph 2 (Term) of the Contract is hereby amended to extend the Contract term. Paragraph 2 of the Contract is amended to read as follows:
"2. Term. The effective date of this Contract is
________________________________________________________ (Insert Contract Effective Date)
and it terminates
________________________________________________________. (Insert new Contract termination date)
unless sooner terminated as provided herein."
Paragraph 3 (Payment Limit) of the Contract is hereby amended to increase the payment limit by $__________________. Paragraph 3 of the Contract is amended to read as follows:
"3. Payment Limit. City's total payments to Contractor under this Contract shall not exceed $_____________________ including expenses."
“The City shall not pay for services that exceed the Contract Payment Limit without the prior written approval of the City Council or executed by the City Manager if the total Contract amount does not exceed $10,000 or without the prior approval of the City Council if the total Contract amount is over $10,000.” The Service Plan (Exhibit A) of the Contract is hereby amended to include the following tasks and/or services:
(Insert description of additional tasks/services. Use additional pages if necessary.)
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Appendix 1
To align with the services Nomad Transit, LLC (“Via”) is actually providing and protect our intellectual property rights, please make the following changes to Exhibit D:
Exhibit D, Section 3. City Property:
Update Section 3 as set forth below:
The rights to applicable plans, drawings, reports, calculations, data, specifications, videos, graphics or other materials prepared for or obtained pursuant to this Contract, which, upon request, are to be delivered to City within a reasonable time, shall be deemed assigned to City. If applicable, Contractor shall prepare check prints upon request. Notwithstanding the foregoing, Contractor shall not be obligated to provide to City proprietary software or data which Contractor has developed or had developed for Contractor's own use; provided, however, that Contractor shall, pursuant to Section 15 below, indemnify, defend and hold harmless City from and against any discovery or Public Records Act request seeking the disclosure of such proprietary software or data. For the avoidance of doubt, no exchange of or license to intellectual property rights is contemplated hereunder. For the avoidance of doubt, all intellectual property rights in and to the Via Solution and all of their derivative works and improvements are owned by, and are proprietary to Contractor. No right, title or interest in or to the Via Solution or any portion thereof is or shall be granted or transferred to City under this Agreement, whether by license or otherwise; and City acknowledges and agrees that it shall have no right to use, reproduce, distribute, sublicense, modify or otherwise provide to third parties, the Via Solution, in whole or in part.
Exhibit D, Section 4. Patents, Trademarks, Copyrights and Rights in Data:
Delete section 4 in its entirety
Exhibit D, Section 12. Termination Without Default:
Given the amount of upfront work required to provide the services, please remove the right of termination without cause.
Exhibit D, Section 15. Indemnification:
Strike the indemnification provision and simply have the indemnification provision in our agreement prevail.
Exhibit D, Section 20. Limitations Upon Subcontracting and Assignment:
As a venture capital backed firm, Via cannot agree to change of control restrictions. Please delete the last paragraph of section 20.
Exhibit D, Section 23. Conflicting Provisions:
The conflicting provisions should be clear - below is the proposed revision:
In the event of a conflict between these General Conditions and those of any Exhibit or attachment hereto, these General Conditions shall prevail; provided, however, that any Special Conditions as set forth in Exhibit E shall prevail over these General Conditions. In the event of a conflict between the terms and conditions of any two or more Exhibits or attachments hereto, those prepared by City shall prevail over those prepared by the Contractor, and the terms and conditions preferred by the City shall prevail over those preferred by the Contractor
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MASTER TERMS AND CONDITIONS FOR VIA TRANSIT AS A
SERVICE
THESE MASTER TERMS AND CONDITIONS FOR VIA TRANSIT AS A SERVICE (these “Terms and Conditions” or this “Agreement”) are entered into as of the effective date designated on the signature page hereto (the “Effective Date”) between NoMad Transit LLC, a Delaware limited liability company with its principal office located at 160 Varick Street, 4th Floor, New York, NY 10013 (“Service Provider”), and The City of Richmond a government entity located at 440 Civic Center Plaza, Richmond, CA 94804 (“Customer”). Defined terms have the meaning given to them in Section 14 or in the Section in which they first appear.
1. BACKGROUND AND PURPOSE.
1.1 Via Background . Via Transportation, Inc. (“ Via”), the parent company of Service Provider, is the developer and owner of a proprietary technology platform and certain related systems and methods used to establish, monitor, operate and/or manage on -demand transit networks (the “Via Solution”) that it uses to provide customers with technology and technology enabled integration services, acting as a broker coordinating the services of third party service providers to effectuate public or private transportation networks (collectively, the “Services”).
1.2 Purpose; Ordering. The purpose of these Terms and Conditions is to provide a framework under which Service Provider will provide to Customer the Services. These Terms and Conditions shall govern the provision of Services by Service Provider to Customer as described in the service order attached hereto and any other service order signed by Service Provider and Customer (each, an “Order”).
2. THE SERVICES.
2.1 The Services.
(a) The Services. Pursuant to one or more Orders, the parties intend that Service Provider shall provide the Services described in such Order. In some cases, Services will require a more comprehensive description than that contained in the applicable Order. If that is the case, the parties will enter into a mutually agreed statement of work and attach it to the applicable Order (each, a “ Statement of Work ” or “SOW”). Each Order or SOW, as needed, will set forth the particulars of the Services for each city or locality in which Customer intends to operate the Via Solution in connection with the Service, as specified in the Order.
(b) Additional Services. From time-to-time Customer may desire to engage Service Provider to perform additional services, such as development of product features and/or services directly related to the Via Solution which fall outside the scope of the Services . In such cases, the parties will negotiate toward potential execution of such SOWs as are jointly determined to be appropriate. All such services described in this Section 2.1(b) are referred to collectively as, the “Additional Services”. The Parties shall agree upon a blended hourly rate for Service Provider to bill Customer for performing such Additional Services under the relevant SOW. Service Provider shall consider proposals for such Additional Services in good faith but is under no obligation to perform the Additional Services if an SOW cannot be agreed upon with Customer.
(c) General Terms. All references to Orders include their SOWs . Service Provider shall provide the Services to the Customer in accordance with the relevant Order beginning on
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the Effective Date and continuing throughout the Term, in accordance with the terms of this Agreement. The Services to be delivered to the Customer are set forth in the relevant Order as may be amended through written agreement between Service Provider and the Customer from time to time during the Term. All Services to be performed by Service Provider shall be in accordance with the applicable Order executed by Service Provider and the Customer and Service Provider's obligations under S ection 9.1 (Regulatory Compliance). Service Provider ’s provision of the Services requires such reasonable and timely cooperation as Service Provider may require of the Customer, including access to the Customer’s information, personnel, and/or systems, and Service Provider shall not be responsible for any failures or delays caused by the Customer’s failure to so cooperate or any inaccurate information provided by or on behalf of the Customer. Unless an Order has different acceptance terms, Customer will accept the Services and any resulting deliverables upon pa yment or fifteen (15) days after their performance, whichever occurs first, and may not withhold, condition, or delay payment or acceptance after that time.
(d) Relationship Management . The Customer Manager and Service Provider Manager named in an Order shall assume operational responsibility for that Order. Changes to the scope of an existing Order or SOW (including changes to any deliverables) require mutual written consent of the parties.
3. INTELLECTUAL PROPERTY AND RELATED RIGHTS.
3.1 The Via Solution. No exchange of or license to intellectual property rights is contemplated hereunder. For the avoidance of doubt, as between Customer and Service Provider hereunder, all Intellectual Property Rights (“ IPRs” as defined in Section 14) in and to the Via Solution and all of their derivative works and improvements are owned by, and are proprietary to Via. No right, title or interest in or to the Via Solution or any portion thereof is or shall be granted or transferred to Customer under this Agreement, whether by license or otherwise; and Customer acknowledges and agrees that it shall have no right to use, reproduce, distribute, sublicense, modify or otherwise provide to third parties, the Via Solution, in whole or in part.
3.2 Rider Data. As between Customer and Service Provider, all IPR in and to Rider Data are owned by Service Provider. Service Provider shall be responsible for displaying a privacy policy to Riders. Service Provider acknowledges that it will not use the Rider Data for the provision of advertising and will not sell any Rider Data to third parties. Service Provider shall provide data reporting as set forth in the Order.
3.3 Rights to Marks. As between them hereunder, each party is and shall continue to be the exclusive owner of all IPR in an d to their respective Marks. To the extent the parties have agreed that one party requires the use of the other party’s Marks in connection with performance under an Order, such Order shall be deemed to contain a grant of license (or sublicense, as applicable) to such party’s Marks sufficient to allow full performance under such Order. In addition, Service Provider shall have the right to use Customer’s Marks in accordance with Section 12. In the event that Customer uses Via’s Marks in a way that causes material reputational harm to Via’s brand, Via reserves the right to withdraw Customer’s use of the Via Marks from the Service.
3.4 Independent Activities . The Customer acknowledges that Service Provider is in the business of performing services similar to the Services for third parties and that, subject to its confidentiality obligations hereunder, nothing herein prevents Service Provider from continuing to engage in the performance of such services and related independent activities.
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4. FEES, TAXES, EXPENSES AND PAYMENTS.
The fees for Services purchased (the “ Fees”) together with the schedule of payments and any additional payment information are listed in each applicable Order. Unless otherwise stated in the Order, all Fees will be payable by Customer within thirty (30) days of receipt of invoice.
Customer’s obligation to pay under any one Order is not contingent on Customer entering into, or Service Provider performing under, any other Order now or in the future. Fees do not include applicable taxes (including sales, us e, value-added, or excise taxes) or government charges all of which are payable by Customer (excluding taxes on Service Provider’s income), nor do they include expenses Service Provider may incur for Customer’s direct benefit, which will be incurred in accordance with Customer’s applicable expense -reimbursement policies, if so requested.
Sales or value-added taxes or similar governmental charges associated with the provision of any Services (excluding taxes on Service Provider’s income) will be separately stated on the relevant invoice and shall be paid by Customer in accordance with this Section 4. If Service Provider does not receive timely payment, Service Provider may charge the maximum monthly interest allowed by law or one percent, whichever is greater, suspend Service Provider’s performance and seek cost of collection, including reasonable attorneys’ fees. If Customer disputes invoiced amounts, Customer must submit disputes to Service Provider in writing within ten (10) business days of the date the invoice originally was due, otherwise it will be final and non-refundable.
5. TERM AND TERMINATION.
5.1 Term; Duration of Right to Place Orders. The Customer’s right to enter into Orders under these Terms and Conditions commences on the Effective Date and continues , unless earlier terminated pursuant to this Section 5, for so long as at least one Order remains continuously in effect (the “Term”).
5.2 Termination.
(a) If an obligation under this Agreement or an Order is materially breached, the non- breaching party may provide written notice specifying the nature of the breach and the breaching party will have thirty (30) days from receipt of notice to cure. If not so c ured, the non-breaching party may terminate the applicable Order or Orders affected by the breach by providing a second written notice of immediate termination. In addition, all Orders, including all Services under them, shall terminate automatically and immediately upon either party’s insolvency or any attempt by either party to obtain protection from creditors or wind down operations, unless otherwise agreed by the opposing party in a written notice.
(b) If an Order is terminated by either party or expires pursuant to its terms, then Customer must pay any outstanding amounts due to Service Provider, and all copies and embodiments of Service Provider’s Confidential Information (including the Via Solution) must be returned. Unless an Agreement is terminated by Customer under this Section 5 as a result of Service Provider’s uncured material breach, no expiration or termination of this Agreement will affect Customer’s obligation to pay for Service Provider ’s non-cancelable obligations to third parties on behalf of or benefitting Customer, , all of which will remain due and payable by Customer in accordance with the terms of the applicable Order. The notification by either party of its intent to terminate this Agreement and/or any Orders does not relieve either party of any obligations that have accrued on or before the date on which termination becomes effective.
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6. CONFIDENTIALITY AND DATA SECURITY.
6.1 Confidentiality.
(a) Non-Disclosure Obligations . Confidential Information may be provided or disclosed by one party (the “Disclosing Party”) orally, in writing or in graphical, machine-readable or other form to the other party (the “ Receiving Party”). The Receiving Party shall hold the Confidential Information in confidence and shall not make any use or disclosure of the Confidential Information to any individual or entity during the Term and thereafter without the express written consent of the Disclosing Party in each instance, except to the extent that those of the Receiving Party’s employees, service providers, legal and financial advisors, and individual independe nt contractors who are bound to substantially similar obligations of confidentiality as set forth herein and have a need to know the Confidential Information so disclosed . The Receiving Party shall handle all Confidential Information received with the same degree of care as it uses to maintain the confidentiality of its own confidential information, which shall in no event be less than reasonable care. As between the par ties, all Confidential Information shall remain the sole and exclusive property of the Disclosing Party and other than the licenses expressly granted in this Agreement or another agreement between the parties , no disclosure or permitted use of the Confidential Information under this Agreement shall be construed as the grant of any right, title or interest, by license or otherwise, in or to the Confidential Information. The remedy at law for breach or threatened breach of this Section 6.1 shall be inadequate, and in addition to any other remedy available, the non-breaching party shall be entitled to seek injunctive relief. In the event that Customer receives a request for Service Provider’s Confidential Information, including this Agreement and the terms and conditions contained herein, under the Freedom of Information Act (“FOIA”) or any similar law, Customer agrees to provide Service Provider timely notice of such a request and to assist Service Provider in seeking to protect its Confidential Information under any applicable exemption for trade secrets, to the extent possible under Applicable Law.
(b) Exclusions. The Receiving Party shall have no obligation under Section
6.1 with respect to any Confidential Information disclosed to it which: (i) the Receiving Party can demonstrate was already known to it at the t ime of its receipt hereunder; (ii ) is or becomes generally available to the public other than by means of breach of these Terms and Conditions or any other agreement any party may have with the Disclosing Party; (iii) is independently obtained from a third party (other than any authorized r ecipient) whose disclosure to the Receiving Party does not violate a duty of confidentiality and does not require further restrictions on such disclosure; or (iv) is independently developed by or on behalf of the Receiving Party without use of, reference to or reliance on any Confidential Information of the Disclosing Party, and such independent development can be reasonably evidenced by the Receiving Party. In addition, the Receiving Party may make disclosure of Confidential Information in a judicial, legislative, or administrative investigation or proceeding or to a government or other regulatory agency; provided that, to the extent permitted by, and practicable under, the circumstances, the Receiving Party shall provide to Disclosing Party prior written notice of the intended disclosure to enable the Disclosing Party the reasonable opportunity to contest or limit such disclosure or, if prior written notice is not permitted or practicable under the circumstances, prompt notice of such disclosure.
7. INDEMNIFICATION AND RELATED OBLIGATIONS.
Service Provider will indemnify, defend and hold Customer harmless from amounts Customer owes to third parties as the result of (a) Service Provider’s gross negligent provision of the Services, or (b) either a ruling by a court of competent jurisdiction or a reasonable settlement entered into by Service Provider that holds that the Via Solution provided to Customer under an Order or any component part thereof infringes or violates a third party’s IPRs, other than in respect of patent infringements asserted by non-practicing entities or their affiliates. If the Via Solution or other technology element are found to be infringing, or if at any time Service Provider reasonably
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believes that the Via Solution may be subject to a claim of infringement, then Service Provider may choose to: (a) modify the applicable portions of the Via Solution to be non -infringing; (b) obtain a license for Customer to continue using the infringing portions of the Via Solution; or (c) if neither of the foregoing is commercially practicable, terminate the applicable Order and refund a pro-rata portion of any pre -paid fees Customer paid for the Via Solution. Service Provider’s indemnity obligations shall not apply to: (i) Customer’s use of the Via Solution outside the scope of their documentation; (ii) all software, data, data feeds, or other content directly licensed by Customer from third parties or any other materials not provided by Service Provider; (iii) any infringement not reported by Customer in accordance with these Terms and Conditions (but only to the extent Service Provider is actually prejudiced by Customer’s delay or failure to report ); or (iv) any modifications to the Via Solution made b y any party (other than Service Provider or Service Provider’s subcontractors or by Customer acting at Service Provider’s express direction).
This Section 7 sets forth Customer’s only remedy and Service Provider’s only liability with respect to infringement or other violations of intellectual property rights.
The Customer will indemnify, defend and hold Service Provider harmless from all Losses arising out of or relating to any third party claim regarding Customer’s use of the Services, other than the indemnification obligations set forth in Section 7(a) above. The Customer’s indemnity obligations shall not apply to claims resulting from Via’s gross negligence or willful misconduct.
8. WARRANTIES; LIMITATION OF LIABILITY; INSURANCE.
8.1 Warranties. Service Provider warrants that: (a) from the Effective Date until the expiry or termination of this Agreement, the Services will comply in all material respects with this Agreement and with the relevant Order or SOW; (b) the Services will be carried out in a competent and professional manner. In the event the Services fail to perform as warranted in this Section 8.1, Service Provider shall use commercially reasonable to promptly correct any such failure of the Services.
8.2 Disclaimers. WITHOUT PREJUDICE TO SECTION 8.1 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW: (a) EACH PARTY EXPRESSLY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON - INFRINGEMENT); AND (b) SERVICE PROVIDER DOES NOT WARRANT THAT THE VIA SOLUTION MEETS CUSTOMER’S REQUIREMENTS, OPERATES WITHOUT INTERRUPTION, OR IS ERROR FREE. Notwithstanding anything to the contrary express or implied in this Section 8, Section 7 or elsewhere in this Agreement, Service Provider shall have no liability to Customer or any Rider (including no duty to defend, indemnify or hold Customer harmless) for any Customer Incident where “ Customer Incident” means any accident, incident or other situation involving any Rider (unless such Customer Incident is the result of Service Provider’s gross negligence or willful misconduct), or any accidents, hazards, or dangers that exist on Customer’s property.
8.3 Limits on and Exclusions from Liability. NEITHER PARTY WILL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE DAMAGES
OR LOST OR IMPUTED PROFITS OR LOST DATA EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN WITH RESPECT TO FEES PAID OR PAYABLE BY CUSTOMER EACH PARTY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION
WITH ALL AGREEMENTS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT
EQUIVALENT TO THE FEES PAID OR PAYABLE TO SERVICE PROVIDER WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. Customer must bring all claims and causes of action within six (6) months of their being discovered or one (1) year after expiration or termination of the Order out of which the claim arises, whichever occurs first. The limitations and exclusions
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in this Section 8.3 apply to all claims or causes of action under whatever theory brought and regardless of whether a party was advised of the possibility of the claim.
8.4 Insurance. Service Provider shall obtain and maintain during the Term, with financially sound and reputable insurers having A.M. Best ratings of at least B (III) or better, policies of insurance customary for the delivery of technology and services similar to the Services including commercial general liability, auto liability and professional liability. All such insurance shall be primary and not contributing with any insurance coverage maintained by Customer. Customer will receive advance written notice in the event of a cancellation or material change in any Service Provider insurance policy hereunder. Where permissible, (e.g., policies other than professional liability), Service Provider will name Customer as an additional insured.
9. REGULATORY COMPLIANCE.
9.1 Service Provider’s Obligations. Service Provider shall at all times carry out and provide the Services in compliance with all Applicable Laws. For any change in the Services required by a change in Applicable Laws, Service Provider shall mitigate the adverse effects of such change including minimization of increase in costs of the Services arising therefrom. Without prejudice to the rest of this Section 9, Service Provider shall use commercially reasonable efforts to minimise any disruption caused by any changes in A pplicable Laws introduced pursuant to this Section 9. The Customer acknowledges and agrees that the Services hereunder do not include, and neither party intends that they be construed as including, any legal, financial, tax or compliance advisory services with respect to the Transportation Laws.
9.2 Customer’s Obligations. The Customer shall comply with all Applicable Laws. Customer shall monitor and identify changes in Applicable Laws (in any jurisdictions in which Service Provider provides the Serviceson Customer’s behalf) which would impact the use of the Services by the end-users and: (a) make such modifications to its internal processes and operations as it deems necessary to remain compliant with such change in Applicable Laws; and (b) promptly notify Service Provider thereof so that the Customer Manager and Service Provider Manager may discuss any changes to the Services required for on-going compliance.
9.3 Export Laws. The parties do not intend to import or export products to one another or any third party under any Agreement. Neither party shall export or re -export the Via Solution to countries subject to U.S. government embargo (as designated by the Office of Forei gn Asset Control of the Treasury Department) and persons listed on the prohibited persons list maintained by the Bureau of Industry and Security of the Department of Commerce.
9.4 Anti-Bribery Laws. The Parties shall comply wi th all applicable anti -bribery Applicable Laws in connection with their respective performance under this Agreement.
9.5 Consents; Permits . Service Provider shall obtain all governmental registrations, licenses, permits, approvals and certifications required by Applicable Laws for the performance of the Services hereunder and shall pay all governmental fees associated therewith. Customer shall obtain all governmental registrations, licenses, permits, approvals and certifications required by Applicable Laws in connection with this Agreement (including each Order), as necessary to operate the transport network, and shall pay all governmen tal fees associa ted therewith.
Customer also shall obtain from its third party vendors, licensors, supply -chain partners, clients, customers, distributors or similar parties, any authorization or consent necessary for Service Provider to access or utilize the goods, services (including software or other proprietary materials), property or facilities of such parties if necessary for Service Provider’s performance of the Services.
10. ASSIGNMENT.
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Customer may not assign or transfer these Terms and Conditions and/or any Order unless Customer makes a request in writing in advance and Service Provider consents in writing. Service Provider may require Customer and the proposed assignee/transferee to agree to additional terms or pay additional fees. Any change of control of Customer shall be deemed to constitute a prohibited assignment for the purposes hereof.
11. DISPUTE RESOLUTION; GOVERNING LAW.
The laws of the State of New York will govern this Agreement without regard to the principles of conflicts of laws. Except for either party’s right, in connection with any matter involving any Agreement, to seek equitable or declaratory relief in any court of competent jurisdiction, all disputes not resolved informally by the parties shall be submitted for arbitration before a panel of three (3) arbitrators selected one each by the parties and one by the American Arbitration Association (the “AAA”), at least one of whom shall be an expert in the field of cloud-deployed software solutions. The arbitration shall be conducted in accordance with the provisions contained herein and in accordance with the Commercial Arbitration Rules of the AAA in effect at the time of the arbitration. A written notice of intent to arbitrate shall be provided by one party to the other party within a reasonable time after the dispute has arisen, and in no event shall such notice be provided after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. All arbitration shall be administered by the AAA and shall take place in New York, New York unless otherwise agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction; provided, however, that the arbitrators shall not have the power to award: (a) punitive damages; or (b) damages in excess of the limitations set forth in Section 8 hereof.
12. MISCELLANEOUS.
These Terms and Conditions and each Order may be signed in separate counterparts deemed to be one instrument. The parties agree and acknowledge that signatures transmitted electronically, whether sent via facsimile or as attached files to electronic mail messages ( e.g., in .pdf format), shall be acceptable to bind the parties. All notices must be sent by certified mail or overnight courier to the address specified for each party and deemed given three (3) business days after sending. The prevailing party in any dispute is entitled to the recovery of reasonable legal fees and expenses. Failures in performance beyond a party’s reasonable control are excused.
Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waive r of a breach is not waiver of other or later breaches. Nothing in an Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and except as may be expressly stated in an Order, neither party has the authority to act in the name or on behalf of or otherwise to bind the other. In performing its obligations under this Agreement, each party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and cont rol of its own employees and for the payment of their salaries and bene fits and related compensation. Service Provider may issue a press release or make other public announcements concerning these Terms and Conditions and/or Orders and may use Customer’s Marks in its marketing materials and on its website in a manner consistent with Customer’s communications policies (to the extent made available to Service Provider) but in all events reasonably. Customer shall, upon Service Provider’s request, use commerci ally reasonable efforts to provide comments with respect to the collaboration
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hereunder that Service Provider can quote in its press release. Except as expressly set forth herein, there are no other third-party beneficiaries of this Agreement.
13. ENTIRE AGREEMENT AND SURVIVAL.
These Terms and Conditions and each Order (including any SOW) are the entire Agreement between the parties with respect to the Via Solution and Services under them and supersede all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter, and cannot be modified except by written agreement referencing the specific provisions modified. Conflicts between these Terms and Conditions and an Order (including any SOW) with respect to amounts or timing of payments will be resolved in favor of the Order. All other conflicts will be resolved in favor of these Terms and Conditions, including in the event of a conflict with Customer’s general conditions. If Customer’s procurement processes require use of an internal purchase order neither it nor its terms shall supersede, replace, or amend this Agreement. Sections 3, 5.1, 6 and 8.2 each shall each survive expiration or termination of this Agreement.
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14. DEFINITIONS
“AAA” is defined in Section 11.
“Additional Services” is defined in Section 2.1(b).
“Affiliate” means, with respect to any specified entity, any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the entity specified.
“Agreement” is defined in the preamble.
“Applicable Law” means (i) any statute, statutory instrument or any other legislative instrument having the force of law; and (ii) any applicable judgment of a relevant court of law which is a binding precedent, in each case in force at any time during the Term.
“Confidential Information ” means information, data or
materials in either tangible or intangible form that are trade secrets of, or proprietary and confidential to the Disclosing Party or its clients or business partners, including as may be so designated by statute, regulation or common law including by the form of the Uniform Trade Secrets Act and privacy laws adopted under applicable law, or which are marked as
“Confidential” or which, by their nature and the context of their disclosure, should reasonably be known to be confidential.
“Control” means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
“Customer Incident” is defined in Section 8.2.
“Disclosing Party” is defined in Section 6.1(a).
“Export Laws” means the Export Administration Regulations, 15 C.F.R. §§730 -774, the International Traffic in Arms Regulations, 22 C.F.R. Parts 120 -130, and sanctions
programs implemented by the Office of Foreign Assets
Control of the U.S. Department of the Treasury and all similar laws or regulations in each applicable jurisdiction and any amendments or replacements therefor.
“Fees” is defined in Section 4.
“IPR” or Intellectual Property Rights (“IPR”) means rights in and in relation to Confidential Information, all right, title and interest in and including all registered designs, design rights, copyright rights and neighboring rights (including rights in elements of layout or design), database rights, algorithms, utility models, patent rights (including rights under all patent applications, patents, letters patent, supplementary patent certificates, inventor’s certificates, continued prosecution applications, reissues, continuations, continuations-in- part, divisions, substitutes, extensions, requests for continued examination, and other similar filings or stages thereof), rights in and in relation to inventions (whether or not patentable), domain names, trade marks, service marks, trade and business names, logos and trademark rights, as well as all proprietary rights (including trade secrets), Know How, and moral rights (including the rights of authorship and attribution and subsequent modification), all rights or forms of protection having an equivale nt or similar nature anywhere in the world, whether enforceable, registered, unregistered or registrable (including, where applicable, all applications for registration) and whether or not evidenced by certificates, applications or registrations therefor, and whether granted provisionally or permanently, or upon initial issuance or upon reissue, re-examination, division, extension, in continuation, or in continuation-in-part, and at all times further including all goodwill associated with all such rights.
"Know How" means all unpatented, secret, substantial and identified know how, expertise, technical, operational or other information including all related ideas, concepts, methods, inventions, discoveries, data, formulae, processes, methods, techniques and specifications.
"Losses" means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnifica tion hereunder and the cost of pursuing any insurance providers.
“Marks” means any word, name, symbol, logo, font, or device or any combination thereof, used to identify and distinguish goods or services from another source, including trademarks (both registered and unregistered), domain names and trade dress.
“Order” is defined in Section 1.2.
“Riders” means actual or prospective riders of the
Customer's transportation network.
“Rider Data” means all data that is input by or on behalf of Riders into the Via Solution. Portions of the Rider Data may include personally identifiable information.
“Receiving Party” is defined in Section 6.1(a).
“Services” is defined in Section 1.1.
“Term” is defined in Section 5.1.
“Transportation Laws” means any applicable law to which operators and owner s of vehicles , employer of vehicle operators, and transportation service providers are required to adhere.
“Via Solution” is defined in Section 1.1.
Confidential • Page 0 of 14
SIGNATURES OF THE PARTIES APPEAR ON THE IMMEDIATELY FOLLOWING PAGE.
Confidential • Page 1 of 14
SIGNATURE PAGE TO MASTER TERMS AND CONDITIONS FOR TRANSIT AS A SERVICE
IN WITNESS WHEREOF, the parties to these Master Terms and Conditions for Transit as a Service have caused them to be duly executed by their respective duly authorized representatives.
SERVICE PROVIDER: NOMAD TRANSIT LLC
THE CITY OF RICHMOND
_________________________________________
AUTHORIZED SIGNATURE
_________________________________________
PRINTED NAME
_________________________________________
TITLE
________________________________________
AUTHORIZED SIGNATURE
_________________________________________
PRINTED NAME
_________________________________________
TITLE
________________________________________
DATE SIGNED
________________________________________
DATE SIGNED
CUSTOMER LEGAL
NAME
THE CITY OF RICHMOND
CUSTOMER
PRINCIPAL BUSINESS
ADDRESS
[PLEASE ADD]
CUSTOMER STATE OF
INCORPORATION
[PLEASE ADD]
CUSTOMER CONTACT
INFORMATION FOR
NOTICES
[PLEASE ADD]