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Customer Agreement
This Customer Agreement (the “Agreement”), effective as of _____________________, 2023 (“Effective Date”), is entered into by and between Nightingale Intelligent Systems, Inc., a Delaware corporation, located at 8450 Central Avenue, Suite 1A, Newark, CA 94560, USA (“Nightingale), and the City of San Pablo, a municipal corporation having an address at City Hall, 1000 Gateway Ave nue, San Pablo, CA 94806 (“Customer”), and together with Nightingale, the “Parties,” and each a “Party.”
WHEREAS, Nightingale is in the business of manufacturing and selling unmanned aircraft (aka drones);
WHEREAS, Nightingale and Customer entered into a prior purchase and service agreement dated August 17, 2021 (“Prior Agreement”), which included continuing annual support and maintenance;
WHEREAS, Nightingale and Customer desire to terminate Prior Agreement and continue support and maintenance for all Goods (as defined below) purchased by Customer from Nightingale under the current Agreement or under the Prior Agreement;
WHEREAS, Customer wishes to purchase certain Goods (as defined below) from Nightingale; and WHEREAS, Nightingale desires to manufacture and sell the Goods to Customer.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
l. Sale of Goods . Nightingale shall sell to Customer and Customer shall purchase from Nightingale those US-I Aircraft and related goods and services set forth on Exhibit A (the "Goods") in the quantities and at the Prices (as defined in Section 5) and upon the terms and conditions set forth in this Agreement. Customer may purchase additional Goods under a subsequent mutually agreed upon order form in the same form as Exhibit A.
2. Delivery.
(a) The Goods will be delivered within a reasonable time after the date of this Agreement but no later than 120 days of receipt of the City's purchase order. (b) Nightingale shall deliver the Goods to the San Pablo Police Department, 13880 San Pablo Avenue, San Pablo, CA 94806 (the "Delivery Point"). Delivery shall be considered made once received by the San Pablo Police Department.
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(c) Nightingale may, in its sole discretion, without liability or penalty, make partial delivery/shipments of Goods to Customer. Each delivery/ shipment will constitute a separate sale, and Customer shall pay for the units delivered/ shipped, once received whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement. (d) Customer will purchase the maintenance and repair or support services and any other services as set forth on Exhibit A and any subsequent mutually agreed upon order form,
3. Title and Risk of Loss. Title and risk of loss to the Goods passes to Customer upon delivery of the Goods at the Delivery Point; provided that no intellectual property rights in and to the Goods transfer to Customer and such rights are reserved by Nightingale. As collateral security for the payment of the purchase price of the Goods until payment to Nightingale, Customer hereby grants to Nightingale a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, until delivery and payment by C ustomer. Upon payment, the lien is extinguished. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
4. Inspection and Rejection of Nonconforming Goods.
(a) Customer shall inspect the Goods within ten (10) business days of receipt ("Inspection Period"). Customer will be deemed to have accepted the Goods unless it notifies Nightingale in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Nightingale. "Nonconforming Goods" means the following: (i) product shipped is different than identified in this Agreement or fails to meet any material condition of this Agreement; (ii) product's label or packaging incorrectly identifies its contents; or (iii) Goods are not free from all material defects in design, material and workmanship. (b) If Customer timely notifies Nightingale of any Nonconforming Goods, Nightingale shall, in its sole discretion, (i) repair or replace such Nonconforming Goods with conforming Goods as soon as practicable, or (ii) credit or refund the Price for such Nonconforming Goods within 10 calendar days of the Customer's notification if payment has been made. Customer will make the Goods available for pickup by Nightingale upon notification of Nonconforming Goods. If Nightingale exercises its option to replace Nonconforming Goods, Nightingale shall ship/deliver to Customer at Nightingale’s expense, the replaced Goods to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies set forth in Section 4(b) are Customer's exclusive remedies for the delivery of Nonconforming Goods.
5. Compensation. Customer shall purchase the Goods from Nightingale at the prices (the "Prices") set forth in Exhibit A and for subsequent purchases as the parties mutually agreed upon in a new order form. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer.
Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Nightingale's income, revenues, gross receipts, personnel or real or personal property or other assets. As full compensation for Goods, Customer hereby
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agrees to pay Nightingale a sum not to exceed Six Hundred Forty-Four Thousand Three Hundred Eleven Dollars ($644,311) as set forth in Exhibit A.
6. Payment Terms. Customer shall pay all invoiced amounts due to Nightingale within thirty (30) days from receipt of Nightingale's invoice. Customer shall make all payments hereunder by wire transfer, check or credit card in US dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per mon th or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Nightingale for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
7. Proprietary Rights and Data.
(a) Restrictions on Use. Customer acknowledges that the intellectual property in or related to the Goods and their structure and organization, may constitute valuable trade secrets of Nightingale. Except as expressly permitted by this Agreement, Customer agrees that it shall not, nor permit any third party to, (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the technology for the Goods, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or (b) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Goods; or (c) modify or resell the Goods. (b) Feedback. Any suggestions, comments or other feedback provided by Customer to Nightingale with respect to the Goods (collectively, "Feedback") may be used by Nightingale as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise, except to the extent such feedback is protected by privacy rights of individuals under applicable state or federal law. Except as limited in the prior sentence, Customer assigns all Feedback to Nightingale, recognizing that such Feedback from the Customer may be de emed to be a public record under the California Public Records Act.
(c) Operational Data . Customer acknowledges and agrees that Nightingale may monitor, collect, use and store operational data regarding (and/or obtained via) the use of the Goods by Customer, solely for Nightingale's business and product improvement purposes. Operational data does not include any video or images taken by the Goods.
(d) License. Subject to the terms and conditions of this Agreement, Nightingale hereby grants to Customer a nonexclusive, nontransferable, non-sublicensable, revocable, royalty free license to use: (i) the software embedded on or in connection with the operation of the Goods for public safety response and security monitoring; and (ii) any services solely to operate and use the Goods as authorized hereunder. All other uses of the Goods are strictly prohibited unless approved in writing by the Parties.
8. Warranties.
(a) Nightingale warrants to Customer that for a period of twelve (12) months from the date of acceptance of the Goods ("Warranty Period"), such Goods will conform to the specifications set
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forth in Exhibit A; shall be free from all material defects in, material and workmanship and design defects that prevent the Goods from meeting the specifications; and that Nightingale has legal title to Goods and can sell them to Customer.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8 (a),
NIGHTINGALE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY
AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; (v) WARRANTY OF SAFETY, COMPLIANCE WITH LAW, OR OPERATIONAL CONTROL; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Nightingale shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Custom er gives written notice of the defect, reasonably described, to Nightingale within Warranty Period and within the thirty (30) days of the time when Customer discovers or reasonably should have discovered the defect; (ii) Nightingale is given a reasonable opportunity after receiving the notice to examine such Goods and Customer (if requested to do so by Nightingale ) returns such Goods to Nightingale's place of business at Nightingale's cost for the examination to take place there; and (iii) Nightingale reasonably verifies Customer's claim that the Goods are defective. (d) Nightingale shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Customer makes any further use of such Goods after giving thenotice set forth in Section 8(c); (ii) the defect arises because Customer failed to follow Nightingale's written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Customer alters or repairs such Goods without the prior written consent of Nightingale or Customer violates Section 7(a); or (iv) if the issue arises out of any of the events or factors set forth in Section 8(g). (e) Subject to Section 8( c) and Section 8( d) above, with respect to any such Goods returned during the Warranty Period, Nightingale shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods, in addition to crediting or refunding any pre -paid on -going subscription or recurring charges for the unused remainder of the applicable term provided that, if Nightingale so requests, Customer shall, at Nightingale's expense, return such Goods to Nightingale or its authorized third party. (f) THE REMEDIES SET FORTH SECTION 8( e) SHALL BE THE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND NIGHTINGALE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH SECTION 8(a). (g) In addition to section 8(b), 8(c), and 8(d), Nightingale's warranty does not cover following:
i. Crashes or fire damage caused by non -manufacturing factors, including but not limited to, pilot errors.
ii. Damage caused by unauthorized modification, disassembly, or shell opening not in accordance with official instructions or manuals.
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iii. Damage cau sed by improper installation, incorrect use, or operation not in accordance with official instructions or manuals.
Damage caused by a non-authorized service provider.
Damage caused by unauthorized modification of circuits
and mismatch or misuse of the battery and charger.
Damage caused by flights which did not follow instruction manual recommendations.
vii. Damage caused by operation in bad weather ( i.e., strong winds, rain, sand/dust storms, etc.)
viii. Damage caused by operating the product in an environment with electromagnetic interference (i.e., in mining areas or close to radio transmission towers, high- voltage wires, substations, etc.). ix. Damage caused by operating the product in an environment suffering from interference from other wireless devices (i.e., transmitter, video downlink, Wi-Fi signals, etc.).
x. Damage caused by operating the product at a weight greater than the safe takeoff weight, as specified by instruction manuals. xi. Damage caused by a forced flight when components have aged or been damaged.
xii. Damage caused by reliability or compatibility issues when using unauthorized third-party parts.
Damage caused by operating the unit with a low -charged or defective battery.
xiv. Loss of, or damage to, your data by the product.
xv. Any third -party so ftware or hardware (which may include software or hardware with its own warranty from a third-party), unless provided by Nightingale with the product except as provided in Section 8(g)(xvi). .
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xvi. Failure of, or damage caused by, any third -party products installed by Nightingale when Nightingale advises that installation will void the warranty.
xvii. Damage resulting from any non-Nightingale technical or other support. xviii. Products or parts that Customer has altered the identification label or from which the identification label has been removed.
9. Limitation of Liability. IN NO EVENT SHALL NIGHTNGALE BE LIABLE FOR:
(1) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE,
OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE,
ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT NIGHTINGALE WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT
OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE OR ( 2) DAMAGES
BEYOND WHAT IS REQUIRED TO BE COVERED BY NIGHTINGALE'S INSURANCE AS SET FORTH IN SECTION 12.
10. Compliance with Law . Customer shall comply with all applicable laws, regulations and ordinances, including those related to privacy and aviation. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement and its use of the Goods.
1l. Indemnification. Nightingale shall indemnify, hold harmless and defend Customer and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "City Indemnified Party") against any and all allegations, losses, d amages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, relating to any claim of a third party arising out Nightingale's negligence, willful misconduct or breach of this Agreement, including violation of applicable laws. This defense and indemnification include any claim that the Goods provided by Nightingale under this Agreement constitutes an infringement of any patent issued by the United States. Such infringement indemnity shall not apply to the extent the infringement is based upon City Indemnified Party's combination of such materials or equipment with third party products that are not provided or endorsed by Nightingale in writing (provided the infringement would not exist but for such combination) or City Indemnified Party's use of such materials or equipment in a manner not contemplated by this Agreement For such indemnification, City Indemnified Party must promptly notif y Nightingale of the claim, allow Nightingale to defend the claim and provide Nightingale with reasonable assistan ce and information regarding the claim. IN NO EVENT SHALL NIGHTINGALE BE LIABLE OR RESPONSIBLE
FOR DAMAGES BEYOND WHAT IS REQUIRED TO BE COVERED BY NIGHTINGALE'S INSURANCE AS SET FORTH IN SECTION 12.
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12. Insurance. During the term of this Agreement, Nightingale shall maintain at its own cost and expense the following insurance coverage against claims for injuries to persons or damages to property that may arise from or in connection the performance of the work under this Agreement and the results of that work by the Nightingale, its agents, representatives, employees or subcontractors, with insurers with an A.M. Best's rating of no less than A: VII unless otherwise accepted by the City in writing:
a. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including property damage, bodily injury and personal & advertising injury with limits no less than $3,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
b. Automobile Liability Insurance. ISO Form Number CA 00 01 covering any auto (Code l), or if Nightingale has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. c. Workers' Compensation Insurance . as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
d. Required Endorsements. The insurance provided by Consultant must include the following endorsements as specified below. The endorsements must be executed by a person authorized to bind the issuing insurer. The endorsements are to be provided on forms provided, specified, or approved by the City. As an alternative to the City’s forms, the Consultant’s insurer(s) may provide complete copies of all required insurance policies, including endorsements. i. Additional Insured Endorsements : The General Liability and Automob ile Liability policies are to contain, or be endorsed to contain, the following provisions:
1) The City, its officers, officials, employees, and volunteers (“Additional Insureds”) will be covered as additional insureds with respect to all covered liability. This must be provided in the form of an additional insured endorsement to the Consultant’s insurance policy, using form CG 20 10 11 85, forms CG 20 10 10 01 and GC 20 37 10 01, or equivalent approved by the City. For design professionals form CG 20 07 may be used. Alternatively, the additional insured endorsement may be provided as a separate owner’s policy that complies with all of the requirements set forth in this Section 15.
2) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the policies will apply as though separate policies have been issued to each of the Additional Insureds.
3) The insurance provided by the Consultant is primary and no insurance or self - insurance held or owned by any of the A dditional Insureds may be called upon to contribute to a loss or defense.
4) Any failure by Consultant to comply with the reporting requirements for a policy will not affect nor abridge the coverage provided for any Additional Insureds.
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5) The coverage or endors ement will not contain any limitations on the scope of protection available to the Additional Insureds.
ii. Notice: Each insurance policy required by this clause must provide or be endorsed to state that coverage will not be reduced, canceled, or allowed to expire without at least 30 days written notice to the City, unless due to non -payment of premiums, in which case 10 days written notice is required.
iii. Waiver of Subrogation: Each required policy must include an endorsement providing that the insurer will w aive any right of subrogation it may have against the City.
Consultant hereby agrees to waive subrogation which any insurer of Consultant may acquire from Consultant by virtue of the payment of any loss.
13. Effective Date and Term. The term of this Agreement (“Term”) begins on the Effective Date set forth above, and expires three (3) years from the Effective Date.
14. Termination. In addition to any remedies that may be provided in this Agreement, Nightingale may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise materially per formed or complied with this Agreement and has not corrected that breach within thirty (30 ) days of Nightingale’s written notice of breach; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors and such proceeding is not dismissed within thirty (30) days.
In addition to any remedies that may be provided in this Agreement, Customer may terminate this Agreement with immediate effect upon written notice to Nightingale, (1) for cause if (i) Nightingale fails to deliver acceptable Goods within the time set forth in Section 2 , (ii) Nightingale has not otherwise materially performed or complied with this Agreement and has not corrected the breach within thirty (30) days of Customer's written notice of the breach , (iii) Nightingale becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors and such proceeding is not dismissed within thirty (30) days, or (iv) Nightingale, or any of its agents, employees, directors or officers, engages in fraudulent or criminal activity in connection with performance under this Agreement ; or (2) if the Customer's City Council rescinds , or does not appropriate, funding for the Goods or services provided under this Agreement, or Customer, in its sole discretion, decides to terminate for convenience.
15. Confidential Information . All non -public, confidential or proprietary information of Nightingale shall be marked by Nightingale as " Confidential." Such documents marked "Confidential" shall be kept confidential by Customer to the extent allowed by law and Customer shall use such information only to perform its obligations and rights under this Agreement. Upon Nightingale's request, Customer shall promptly return documents marked "Confidential" to Nightingale. If Customer receives a Public Records Act request, subpoena, court order or other legal document requesting the disclosure of such marked information, City shall notify Nightingale. Nightingale must seek legal recourse to avoid the
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disclosure within the required time limits or City shal l disclose the information. This Section shall not apply to information that is: (a) in the public domain through no fault of Customer; (b) lawfully known to the Customer at the time of disclosure without a confidentiality obligation; or (c) rightfully obt ained by the Customer on a non-confidential basis from a third party.
16. Entire Agreement . This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Pre-printed purchase order terms and conditions s hall be of no force or effect and are hereby rejected.
17. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 3, 6, 7, 8, 9, 11, 12, 14, 15, 17, 25, 26, 27 and 32 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. On termination of this Agreement, Nightinga le will cease providing maintenance and support services and Customer will pay all amounts due to Nightingale as of the effective termination date within 30 days of receipt of an invoice from Nightingale.
18. Notices. All notices, requests, consents, claim s, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
Notice to Nightingale: Nightingale Intelligent Systems, Inc.
Attention: Jack Wu, CEO Legal
8450 Central Avenue, Suite IA
Newark, CA 94560, USA
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Notice to Customer: City Manager
City of San Pablo
San Pablo City Hall
1000 Gateway Avenue
San Pablo, CA 94806
19. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
20. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
21. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in e xercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
22. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not precl ude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Customer's rig hts under Section 4 and Section 8 are Customer's exclusive remedies for the events specified therein.
23. Assignment. Neither party shall assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior writ ten consent of the other part, which s hall not be unreasonably withheld; except that Nightingale may assign or transfer this Agreement to a success or in interest in the instance of a merger of Nightingale, or sale of all or substantially all of its assets or stock or assignment to a parent or subsidiary comp any of Nightingale. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. This Agreement is binding on and inures to the benefit of the Part ies to this Agreement and their respective permitted successors and permitted assigns.
24. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
25. Choice of Law and Venue. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto are governed by, and construed in accordance with, the laws of the State of California, United States of America, without regard to the conflict of law’s
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provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. Venue for any legal action arising from or relating to this Agreement will be in the Superior Court of Contra Costa County, and no other place.
26. Dispute Resolution. The Parties agree to cooperate and attempt in good faith to resolve any disagreement between them. Each Party shall respond fully to the other Party's reasonable requests for information concerning a disputed issue. A ny disputes that cannot be resolved by good faith negotiation shall be escalated, by written notice from either Party to the other, to the respective executive officers of the Parties. These executive officers shall negotiate in good faith to achieve a res olution of the dispute within thirty (30) days after they are notified of the dispute. From the date of the written notice of dispute through the period of such negotiation, any applicable statute of limitations shall be tolled. If the Dispute is not resolved by these negotiations within thirty (30) days from the date of the Parties' meeting as set forth in the preceding sentence, or if the Parties fail to at all meet, the Parties may agree to participate in binding arbitration within sixty (60) days from the aforementioned meeting. There shall be one arbitrator selected in accordance with AAA rules. The place of arbitration shall be in Contra Costa County, California unless the parties mutually decide otherwise. The procedural laws of the State of Californi a, including the discovery provisions of California Code of Civil Procedure shall be applied to any questions not provided for in the AAA's Rules. Any award issued by the arbitrator shall be final and non-appealable for both Parties and may be enforced in any court that has jurisdiction over the Parties. The Parties shall bear the costs of such arbitration equally, and the prevailing Party (as determined by the arbitrator) in any such arbitration or any judicial enforcement or review proceeding shall be ent itled to its reasonable attorneys' fees and costs in addition to any award ordered by the arbitrator. Notwithstanding the foregoing, either Party may seek and enforce appropriate relief in a court of competent jurisdiction consistent with Section 24 after attempting to resolve the matter through the executive officers of the Parties as discussed above.
27. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
28. Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
29. Relationship of the Parties . The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither par ty shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
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30. Licenses. Nightingale covenants to the best of Nightingale's knowledge that it has obtained all certificates, licenses, permits or the like required by any federal, state or local regulatory agency in order to perform the work under this Agreement.
31. Compliance with Laws. Nightingale shall comply with all applicable federal, state and local laws, regulations and rules, including but not limited to applicable safety and environmental laws.
32. Records. Nightingale shall maintain all documents, data and records related to this Agreement and not more than annually permit the Customer to, upon reasonable pri or notice of at least thirty (30) days, to audit, examine and make copies of all contracts, invoices, and other contractual documents provided to Customer relating to this Agreement, and any other documents that the Parties shall agree to provide with appr opriate measure to ensure nondisclosure to competitors and the public.
Such records shall be maintained for three years from the date of final payment under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed a s of the date first written above by their respective officers thereunto duly authorized.
City of San Pablo, a Municipal Corporation Nightingale Intelligent Systems, INC
By: __________________________________ By:____________________________ Name: Matt Rodriguez Name: _________________________ Title: City Manager Title: __________________________ Date signed: ___________________________ Date signed: ____________________
Approved as to Form for City of San Pablo:
By: __________________________________
Teresa Stricker, City Attorney
Attest:
By: __________________________________
Dorothy Gantt, City Clerk
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Exhibit-A
Background: This quote for San Pablo Police Department for services and products rendered over a 3 year term period, broken up into two payments.
Customer Contacts:
San Pablo Police Department
Captain Brian Bubar
[email protected]
Deployment Locations:
Locations within City of San Pablo, exact locations TBD after further site assessment.
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* Annual Maintenance and Repair Services/Support includes the following: Such maintenance and repair services and associated fees shall continue for the Term of this Agreement as identified in Section 13, unless terminated prior to expiration pursuant to provisions of Section 14.
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BVLOS Approval: Nightingale cannot guarantee approval of the BVLOS waiver application by the FAA. If a Request for Information (RFI) by the FAA on behalf of the operation, Nightingale will work with SPPD to provide the appropriate r esponse. Nightingale will continue to work with the FAA for the approval of the BVLOS operations unless mutually agreed to cease continuation between Nightingale and SPPD terminates at least thirty (30) days in advance of the then current term.
CASIA G Equipment: The Casia G system from Iris Automation is an industry leading Detect-And-Avoid (DAA) technology that has been utilized in 50+ BVLOS waivers. Nightingale has a partnership with Iris to offer their product as a subscription service to Nightingale customers for obtaining a BVLOS waiver from the FAA.
Nightingale will handle the servicing and cleaning of the units during the duration of the subscription. Installation requirements will be shared with SPPD and NIS will assist with any technical advice o r documentation needed for SPPD to conduct the installation. Further assessment with Iris is needed to identify the correct installation location and number of systems required to meet the FAA’s requirements for previously approved BVLOS waiver applications. This quote assumes two units will be required, and is subject to change after additional feedback from Iris or field testing.
"Support Hours" means Nightingale's standard office hours from 8:00 a.m. to 5:00 p.m., Monday through Friday, Pacific Time and 10:00 a.m. to 1:00 p.m. on Saturdays and Sundays. Support Hours do not include Nightingale holidays as observed in the United States. Once per week, Support Hours will also include "after regular Support Hours" between 1700 — 0700hrs Monday through Friday, weekends and holidays for Support service. During these after-regular Support Hours once per week, Customer may request Support and Nightingale will provide such Support. If more after-regular Support Hours is desired, Customer and Nightingale w ill work in good faith on further extending the Support Hours.
"Support" means the provision of assistance to Customer in using the Goods. Support may include clarification of Goods features and functions, and the analysis, correction as well as verification of problems Customer may encounter with the Goods.
Provision Of Support. Customer may contact Nightingale for support as follows:
Email: [email protected]
Nightingale will provide Customer with bug fixes, patches or other minor enhancements or improvements to the Goods made by Nightingale. Except for safety related changes, additional upgrades ( i.e., modifications, additions or substitutions that result in a substantial change, improvement or addition to the Goods), if available, may be offered by Nightingale at an additional charge. Nightingale will use its commercially reasonable efforts to replace Drone(s) and/or Base Station(s) when it determines it is necessary, generally within three (3) business days for domestic shipments within the United States and generally within seven (7) to fourteen (14) business days for shipments outside of the United States, provided that Customer follows Nightingale's return material authorization procedures.
These terms set forth Nightingale's Support provisions as of the Effective Date. Customer acknowledges that these terms are subject to change and Nightingale shall inform Customer of any such changes by means that Nightingale deems appropriate. Changes to Nightingale's Support policy shall tak e effect after the end of the then current annual term. If these changes are not acceptable to Customer, then Customer may terminate the Agreement.
Nightingale's Support obligation hereunder does not extend to problems whose cause is not attributable to th e Goods. This includes but is not limited to misuse or modification of the Goods, improper installation of Goods, or physical damage to Goods. Nightingale shall not be responsible for any failures of the Goods caused in whole or in part by Customer’s hardware or network.
Nightingale/City of San Pablo
2023 Agreement Page 16
Responsibilities Of Customer. Customer shall provide Nightingale with all assistance necessary for Nightingale to provide Support to Customer. Such assistance shall include but not be limited to access to Customer's personnel responsible for the Goods, remote access to the Goods, and other such assistance as Nightingale may reasonably request. Customer shall promptly initiate a Support Call in response to any problems encountered with the Goods, and shall promptly implement procedures specified by Nightingale to correct errors and malfunctions. Customer shall identify an individual in Customers organization as having primary responsibility for the Goods and who will serve as Nightingale's primary contact for Support Calls.