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120Water
Master Services Agreement
This Master Services Agreement ("MS p)iPgther with the Order, the "Agreement") is
made and entered into effective as of 2023 (Effective Date), by and
between 120 Water Audit, Inc. d/b/a 120Water (120Water," "we" or "us"), an Indiana
corporation, and the City of Fresno, a California municipal corporation ("Customer" or
"you" or "City"). 120Water and Customer are each also referred to hereunder as a "party'
and collectively as the "parties."
In consideration of the mutual covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
"Authorized Users" shall mean personnel authorized by Customer to use the
Service solely for the internal use of Customer, subject to the terms and conditions
of this Agreement.
"Customer Data" shall mean all electronic data or information submitted by
Customer to the SaaS Services or otherwise provided by Customer to 120Water.
"Deliverables" means any custom deliverables specified in an Order that are
created specifically for Customer.
"Documentation" means the user guides and specifications for the SaaS Services
that are made available from time to time by 120Water in electronic or tangible form
but excluding any sales or marketing materials.
"Exhibits" shall mean any exhibits attached hereto or identified in an Order entered
into by the parties.
"Implementation Services" means initial implementation, onboarding, and training
services, as identified in the applicable Order.
"Malicious Code" shall mean viruses, worms, time bombs, Trojan horses and other
harmful files, scripts, agents, or programs.
"120Water Software Platform" shall mean 120Water's proprietary online hosted
software platform consisting of the Site and any software, operating systems,
hardware, and other technical resources used by 120Water to provide the SaaS
Services.
"Order" shall mean 120Water's quote accepted by Customer during this Agreement
via an ordering document submitted to 120Water or via subscription on the Site, to
DMS 22451934.9DMS 22451934.9 120Water Contract #
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order any Services, which is hereby expressly incorporated herein by reference.
The initial Order is attached here as Exhibit A.
"Professional Services" shall mean any optional or custom services described in
an Order (or a separate agreement) which is not part of the initial implementation
services set forth in the initial Order.
"Project Start Date" shall mean a date mutually agreed upon by the parties
following execution of an Order, upon which date 120Water shall commence
provision of implementation or other Professional Services.
"SaaS Services" shall mean the water test administration and reporting services
made available to web -based and mobile users via the 120Water Software Platform
hosted by 120Water.
"Services" shall mean the SaaS Services and Implementation Services collectively.
"Site" shall mean the 120water.com website.
"Subscription Start Date" shall mean the date on which 120Water shall make the
SaaS Services available to Customer as set forth in an applicable Order.
"Subscription Term" shall mean the period of time during which Customer is
subscribed to the SaaS Services, as specified in an Order.
"Usage Data" shall mean statistical data related to Customer's access to and use
of the SaaS Services and data derived from it, that is used by 120Water, including
to compile statistical and performance information related to the provision and
operation of the SaaS Services.
2. SERVICES AND RESPONSIBILITIES OF THE PARTIES
2.1 120Water Responsibilities. During the Subscription Term, 120Water shall make
the SaaS Services available to Customer and shall provide maintenance and support
to Customer in accordance with its standard support policies and procedures. The
SaaS Services further include developing, training, testing, correcting, and improving
the 120Water Platform, such activities for which may include the use of Customer Data.
120Water will use commercially reasonable efforts to maintain the SaaS Services'
availability, except for planned downtime for maintenance or upgrades, or any
unavailability caused by circumstances beyond 120Water's reasonable control.
120Water reserves the right to modify the SaaS Services at any time.
2.2 Customer Responsibilities. Customer is responsible for all activities that occur in
Customer's account(s). Customer shall: (a) have sole responsibility for the accuracy,
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quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b)
prevent unauthorized access to, or use of, the SaaS Services, and notify 120Water in
writing immediately upon becoming aware of any such unauthorized access or use; (c)
comply with all applicable laws and regulations in using the SaaS Services; and (d)
procure for 120Water at Customer's sole expense all rights and consents necessary
for 120Water to access and use all Customer Data and all access and use rights
necessary to interface with Customer's software, hardware, and other systems.
Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users
have access to the SaaS Services, and (ii) confidentiality and proper usage of
passwords and access procedures with respect to logging into the SaaS Services.
Customer is solely responsible for all acts and omissions of the Authorized Users, and
for ensuring that the Authorized Users comply with this Agreement.
2.3 Use Restrictions. Customer shall use the SaaS Services solely for its internal
business purposes as contemplated by this Agreement and shall not: (a) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise
commercially exploit or make the SaaS Services available to any third party except as
contemplated by this Agreement; (b) send via, or store within, the SaaS Services
infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise
unlawful or tortious material, including material that is harmful to children or violates
third party privacy rights; (c) send via the SaaS Services any unsolicited commercial
or non-commercial communication; (d) send via, upload to, or store within the SaaS
Services any Malicious Code; or (e) attempt to gain unauthorized access to the SaaS
Services or its related systems or networks. In addition, Customer shall not directly or
indirectly: (i) remove any notice of proprietary rights from the SaaS Services or
120Water Software Platform; (ii) decompile, reverse engineer, or attempt to derive the
source code or underlying ideas or algorithms of any part of the SaaS Services or
120Water Software Platform (except to the limited extent applicable laws specifically
prohibit such restriction); (iii) copy, modify, translate or otherwise create derivative
works of any part of the SaaS Services or 120Water Software Platform; (iv) send, store
or process in the SaaS Services or 120Water Software Platform any personal health
data, credit card data, personal financial data or other such sensitive or personal data;
(v) use any of 120Water's Confidential Information (as defined below in Section 5 of
this Agreement) to create any service, software, documentation or data that is similar
or competitive to any aspect of the SaaS Services, (vi) interfere or attempt to interfere
with the proper working of the SaaS Services or any activities conducted on the SaaS
Services or 120Water Software Platform, or modify another website so as to falsely
imply that it is associated with the SaaS Services; or (vii) permit any third party to
engage in any of the foregoing proscribed acts set forth in this Section 2.3 (with the
restrictions set forth in this Section 2.3, collectively, referred to as the "Use
Restrictions").
2.4 SaaS Services Platform. 120Water and its third -party service providers will use
commercially reasonable efforts to maintain the availability of the SaaS Services.
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120Water may perform routine or other maintenance at times and for durations
established by 120Water in its sole discretion, during which time(s) 120Water may take
the SaaS Services down to conduct necessary maintenance or repairs, or to implement
upgrades. In the event of an error or outage of the SaaS Services, 120Water will use
commercially reasonable efforts to restore the SaaS Services to working order.
Customer agrees that 120Water is not responsible to provide support for any issues
resulting from problems, errors or inquiries related to Customer's systems or hardware
or Customer Data.
2.5 Beta Services. From time to time, 120Water may invite Customer to try Beta
Services at no charge. Customer may accept or decline any such trial in Customer's
sole discretion. Beta Services will be clearly designated as beta, pilot, limited release,
developer preview, non -production, evaluation or by a description of similar import.
Beta Services are for evaluation purposes and not for production use, are not
considered "Services" under this Agreement, are not supported, and may be subject
to additional terms. Unless otherwise stated, any Beta Services trial period will expire
upon the earlier of one year from the trial start date or the date that a version of the
Beta Services becomes generally available. 120Water may discontinue Beta Services
at any time in 120Water's sole discretion and may never make them generally
available. 120Water will have no liability for any harm or damage arising out of or in
connection with a Beta Service.
3. FEES & PAYMENT
3.1 Service Fees; Taxes. 120Water will invoice Customer for Services, as set forth in
the applicable Order or as otherwise agreed by the parties in writing. Except as
otherwise specified in an Order, fees are based on the Services purchased and not
actual usage. Fees paid are non-refundable, and the Services purchased cannot be
decreased during the relevant Subscription Term. Customer shall be responsible for
payment of all taxes due in connection with the Services provided hereunder (other
than taxes owed by 120Water based on its income), whether or not collected by
120Water. 120Water may collect such taxes from Customer, and Customer shall remit
to 120Water all applicable taxes required to be collected by 120Water, or if such taxes
have previously been paid by the Customer, provide 120Water with the appropriate
documentation of such payments.
Customer may add subscriptions for SaaS Services during a Subscription Term at the
same pricing as the underlying subscription pricing set forth in the most recent Order,
prorated for the portion of that Subscription Term remaining at the time the
subscriptions are added, and any added subscriptions will terminate on the same date
as the underlying subscriptions. For all other additional goods or services purchased
by Customer during the Subscription term, such purchases will be made at the then
current prices of such goods or services and must be made pursuant to a separate
written agreement or amendment.
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3.2 Overdue Payments. Any fees hereunder not paid when due will be subject to a late
charge of one and one-half percent (1'/2%) per month on the unpaid balance or the
maximum rate allowed by law, whichever is less. If Customer's account is forty-five
(45) days or more overdue, 120Water may, in addition to any of its other rights or
remedies, suspend Customer's access to the SaaS Services and/or suspend provision
of Professional Services until such amounts are paid in full. If such failure to pay has
not been cured within forty-five (45) days of the due date, then upon written notice
120Water may terminate this Agreement and any or all outstanding Orders.
3.3. Future Functionali_t_� The Parties agree and acknowledge that Customer's
purchases hereunder are not contingent on the delivery of any future Service
functionality or features, or dependent on any oral or written public comments made
by 120Water regarding future functionality or features of any Service.
4. PROPRIETARY RIGHTS
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder,
120Water reserves all rights, title and interest in and to the SaaS Services and
120Water Software Platform, including all software, technology and other materials
associated therewith, all Documentation and content (excluding Customer Data), and
all copies, modifications and derivative works thereof, and all 120Water trademarks,
names, logos, and all rights to patent, copyright, trade secret and other proprietary or
intellectual property rights therein. No rights are granted to Customer hereunder other
than as expressly set forth herein. 120Water may use the trademarks and trade names
of Customer in connection with provision of the Services.
4.2 Feedback, If Customer provides or otherwise makes available to 120Water any
feedback, suggestions, recommendations, data, or other input regarding the Services
or resulting from Customer's use thereof ("Feedback"), Customer hereby grants to
120Water a perpetual, irrevocable, royalty -free right and license to use such Feedback
for any purpose, including to improve and enhance the Services or any component
thereof, to develop new features or functionality, and to otherwise use and exploit such
Feedback for 120Water's business purposes. Customer acknowledges that any
120Water products or materials incorporating any such Feedback shall be the sole and
exclusive property of 120Water. 120Water agrees to indemnify, defend, and hold
harmless City for any use by 120Water of any Feedback.
4.3 Improvements; Deliverables. 120Water shall own all rights, title and interest,
including all intellectual property rights, in and to any improvements to the SaaS
Services and 120Water Software Platform, and in and to any Deliverables or new
programs, upgrades, modifications or enhancements developed by 120Water in
connection with rendering the Services to Customer, even when Deliverables,
refinements or improvements result from Customer's request. To the extent, if any,
that ownership in such Deliverables, refinements or improvements does not
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automatically vest in 120Water by virtue of this Agreement or otherwise, Customer
hereby transfers, and shall transfer, to 120Water all rights, title, and interest which
Customer may have, and such transfer is irrevocable, irreversible and binding on
Customer's successors.
4.4 Data Ownershio: Use
A. Ownership of Customer Data. As between Customer and 120Water, Customer
owns all Customer Data. Customer hereby grants 120Water a worldwide, non-
exclusive, royalty -free, fully paid -up license during this Agreement (and thereafter only
as expressly permitted under this Agreement) to use, reproduce, perform, display,
modify, and distribute Customer Data in connection with providing the Services to
Customer hereunder, and internally for 120Water's development and improvement of
its services and products.
B. Derivative Data and Usage Data. "Derivative Data" means collectively, (i)
information derived or generated from or based on Customer Data, but not containing
Customer Data, (ii) Customer Data which has been de -identified or anonymized so
that it no longer identifies a specific individual; and (iii) Customer Data which has been
aggregated with other data but which no longer identifies a specific individual or
Customer. "Usage Data" means statistical data related to Customer's access to and
use of the SaaS Services and data derived from it, that is used by 120Water, including
to compile statistical and performance information related to the provision and
operation of the SaaS Services. 120Water shall irrevocably own all Derivative Data
and Usage Data and may use or disclose it in any way it chooses. This Section 4.4.B
shall survive any expiration or termination of this Agreement.
4.5 Data Security Obligations Regardinq Personal Data
A. 120Water shall use reasonable technical and organizational security measures,
policies and procedures standard in 120Water's industry designed to protect such
Personal Data from unauthorized access, disclosure, copying, use, or modification,
and inform Customer of any unauthorized access to computer data, applications,
networks or devices ("Security Breach") of Customer Personal Information, 120Water
will comply with all data protection laws and regulations applicable to 120Water respect
to its collection, access, use, storage, disposal, and disclosure of Personal Data.
"Personal Data" means any data that identifies an individual person.
B. 120Water shall notify Customer of any Security Breach as soon as reasonably
practicable, but no later than 72 hours after becoming aware of an actual or reasonably
suspected Security Breach. 120Water shall communicate with Customer on an
ongoing basis regarding the Security Breach and shall cooperate with Customer in any
notifications or actions required by applicable law or as reasonably requested by
Customer.
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C. Promptly following 120Water's notification to Customer of a Security Breach,
120Water shall promptly investigate each Security Breach it discovers and shall take
steps reasonably necessary to halt such Security Breach (if it is ongoing). 120Water
shall implement a plan to remediate the Security Breach designed to prevent similar
incidents in the future.
5. CONFIDENTIALITY
5.1 Definition of Confidential Information. As used herein, "Confidential Information"
means all confidential or proprietary information of a party or, in the case of Customer,
Customer's customers ("Disclosing Party") disclosed to the other party ("Receiving
Party") that (a) if disclosed orally is designated as confidential at the time of disclosure,
(b) if disclosed in writing is marked as "Confidential" and/or "Proprietary" or (c) that
reasonably should be understood to be confidential given the nature of the information
and the circumstances of disclosure. Customer's Confidential Information shall consist
of the Customer Data. 120Water's Confidential Information includes any nonpublic
information relating to the SaaS Services or the software, technology or content
underlying the SaaS Services, or relating to any other of 120Water's or its business
partners' products or services (including any beta version of a service), software,
technology, customers, business plans, and other business affairs. Notwithstanding
the foregoing, 120Water may disclose the existence and terms of this Agreement, in
confidence, to a potential purchaser of or successor to any portion of such party's
business resulting from the reorganization, spin-off, or sale of all or a portion of all of
the assets of any business, division, or group of such party. Confidential Information
shall not include any information that: (i) is or becomes generally known to the public
without breach by the Receiving Party of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party
without breach of any obligation owed to the Disclosing Party; (iii) was independently
developed by the Receiving Party without use of the Disclosing Party's Confidential
Information; or (iv) is received from a third party without breach of any obligation owed
to the Disclosing Party. Other than the pricing information contained in an Order, this
Agreement is deemed nonconfidential.
5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential
Information of the Disclosing Party for any purpose outside the scope of this
Agreement, except with the Disclosing Party's prior written permission or if required by
applicable law orjudicial order. The Receiving Party shall use the same degree of care
to protect the Confidential Information as it uses to protect its own information of a
confidential and proprietary nature, but in no event shall it use less than a reasonable
degree of care. 120Water may disclose Customer's Confidential Information to those
of its employees and contractors who need to know such information for purposes of
performing the Services. Notwithstanding the foregoing, and as permitted by
applicable law, 120Water shall be permitted to retain Customer Data and Usage Data
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and use the same for statistical, analytical, and similar purposes internally, through
publications, and with 120Water's other customers; provided, that any distribution to
third parties of the results of such usage will include Customer Data or Usage Data in
aggregate form only and will not identify Customer or its Authorized Users as the
source of any such data. Further, 120Water may store, reproduce, distribute, create
derivative works (including compilations and statistical summaries and analyses),
transmit, display and otherwise make available certain test results (and related data)
and location information to third party individuals and organizations as reasonably
necessary in order for 120Water to perform Services hereunder.
5.3 Compelled Disclosure; Remedies. If the Receiving Party is compelled or required
by law, including but not limited to the California Public Records Act, an order issued
by a judge or public competent authority to disclose Confidential Information of the
Disclosing Party, it shall provide the Disclosing Party with prior notice of such
compelled disclosure (to the extent legally permitted) and reasonable assistance, at
Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. In the
event a third party makes a request for information under any open records act request,
including those made pursuant to the California Public Records Act, for documents or
information related to this Agreement which is or may be subject to exclusion from
disclosure based on confidential information or trade secrets, Customer will provide
120Water with a timely opportunity to object to disclosure of such documents and
information. 120Water acknowledges that Customer may still be required, under
applicable law, to disclose the information or documents designated by 120Water as
confidential.
5.4 Survival. The confidentiality obligations as are set forth in this Section 5 shall
remain in force and effect at all times during this Agreement and (i) with respect to
Confidential Information that constitutes a trade secret under applicable law, for so
long as such trade secret status is maintained (but no less than the period described
in subclause (ii) hereof); and (ii) with respect to Confidential Information that does not
constitute a trade secret, for five (5) years after termination or expiration of this
Agreement, and (iii) with respect to Personal Data held by 120Water, forever.
6. WARRANTIES & DISCLAIMERS
6.1 Customer Warranties. Customer represents and warrants that: (a) the Customer
Data, and the use thereof by 120Water and its service providers, shall not infringe on
any copyright, patent, trade secret or other proprietary right held by any third party; (b)
Customer shall not use the Services in a manner that violates any law; and (c)
Customer shall procure all rights and consents necessary to enable 120Water and its
third party service providers to access and use all Customer Data and all access and
use rights necessary to interface with Customer's software, hardware and other
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6.2 120Water Warranties. 120Water represents and warrants that: (a) the functionality
of the SaaS Services will not be materially decreased during a Subscription Term; and
(b) 120Water shall take commercially reasonable measures to protect against the
SaaS Services containing or transmitting Malicious Code. 120Water represents and
warrants that the Services (excluding any Services provided by third parties) will be
performed in a professional and workmanlike manner in accordance with generally
accepted industry standards ("Service Warranty"). Customer must report to 120Water
in writing any failure of the Services to materially conform to the Service Warranty
within 90 days of performance of such Services in order to receive warranty remedies.
For any breach of the Service Warranty, Customer's exclusive remedy, and
120Water's entire liability, shall be the re -performance of the Services, and, if
120Water is unable to re -perform the Services as warranted within thirty (30) days of
receipt of notice of breach, Customer shall be entitled to recover the fees paid to
120Water for the deficient Services.
6.3 Third party software requested or required by Customer to be used, integrated, or
interfaces with by 120Water are governed under the applicable third -party software
terms and conditions, and Customer expressly acknowledges that 120Water has no
obligations with regard to such third party software. In the event 120Water is required
to use, integrate with or otherwise interface with third party software, Customer agrees
to secure all rights necessary to enable 120Water to use such third -party software, and
Customer has or will secure at Customer's sole cost all access and license rights to
such third party software necessary to enable 120Water to perform its obligations
hereunder.
6.4 EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, 120WATER
PROVIDES ALL SERVICES AS -IS, WITHOUT WARRANTY OF ANY KIND, AND
120WATER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, TITLE, NON -
INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
6.5 Customer acknowledges and agrees that the Services, the 120Water Software
Platform, Deliverables, or any other materials or services provided hereunder are
intended to provide Customer with a means of sampling, testing, and monitoring water
for contaminants. 120Water uses third party labs and service providers to perform
certain components of the Services and, while 120Water endeavors to maintain
relationships with dependable, accurate and timely third -party service providers,
120WATER DOES NOT CONTROL SUCH SERVICE PROVIDERS, AND
THEREFORE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND
LIABILITY FOR ANY INACCURATE, UNTIMELY, OR OTHERWISE ERRONEOUS
DELIVERABLES INCLUDING DATA, ALERTS, OR INFORMATION ATTRIBUTABLE
TO SUCH SERVICE PROVIDERS.
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7. INDEMNIFICATION AND INSURANCE REQUIREMENTS
7.1 By 120Water. To the furthest extent allowed by law, 120Water shall indemnify,
defend, and hold harmless Customer and its officers, directors, employees, agents,
and affiliates from and against any and all third -party claims, actions, or causes of
action ("Claims") for any liabilities, damages, penalties, fines, assessments, costs, and
expenses, including reasonable attorneys' fees and costs (collectively, "Losses")
arising or related to (a) an allegation by a third party alleging that the Services or use
of the 120Water Platform infringes any United States patent, and/or any copyright,
trade secret or other property right held by such a third party; (b) 120Water's breach
of this Agreement; (c) any failure by 120Water or its employees, agents, service
providers, or subcontractors to comply with applicable law or regulation; (d)
120Water's use of any Feedback provided by Customer; or (e) damage to or loss of
real or tangible property, or personal injury, resulting from the gross negligence or
willful misconduct of 120Water, its agents, service providers, or subcontractors. The
above shall apply provided that 120Water is notified promptly by Customer of any such
Claim (including any threatened claim) and 120Water shall have sole control of the
defense with respect to same (including without limitation, the negotiations and
settlement of such claim).
If a Claim pursuant to clause (a) has occurred or, in 120Water's opinion, is likely to
occur, 120Water shall, at 120Water's option and expense, (i) procure the right to
continue providing the Services or the 120Water Platform, (ii) re -perform or replace
the potentially infringing portion of the Services or the 120Water Platform, or (iii) modify
the Services or the 120Water Platform so that infringement is avoided. If, after using
commercially reasonable efforts, none of the foregoing three alternatives is reasonably
available, 120Water may terminate this Agreement, and Customer shall be entitled to
a pro -rated refund of pre -paid but unearned fees. 120Water shall have no such
indemnification obligation to the extent such infringement under clause (a) above: (w)
relates to use of the Services or the 120Water Platform or any Deliverable in
combination with other software, data products, processes, or materials not provided
by 120Water and the infringement would not have occurred but for such combination;
(x) arises from or relates to modifications to the SaaS Services, the 120Water Platform,
or any Deliverable not made by 120Water; (y) relates to Customer Data or any third -
party product or service, or (z) where Customer continues the activity or use
constituting or contributing to the infringement after notification thereof by 120Water.
7.2 By Customer. Customer shall indemnify, defend, and hold harmless 120Water and
its officers, directors, employees, agents, affiliates and service providers from and
against any and all Losses based on any Claims relating to (a) the possession or use
of the SaaS Services (b) for Customer's failure to comply with the terms of this
Agreement, or (c) from any allegation that Customer Data or 120Water's possession
or use thereof violates or infringes the rights of any third party.
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7.3 If 120Water subcontracts all or any portion of the services to be performed under
this Agreement, 120Water shall be responsible for acts and omissions of its contractors
in accordance Section 7 of the Agreement.
7.4 Procedure. The party seeking indemnification must: (a) promptly notify the
indemnifying party in writing of the applicable Claim for which indemnification is sought;
and (b) provide the indemnifying party with all reasonable non -monetary assistance,
information and authority reasonably required for the defense and settlement of such
Claim. Delay in providing such notification shall not relieve the indemnifying party of its
indemnification obligation except to the extent due to such delay. No settlement or
compromise that imposes any liability or obligation on the indemnified party will be
made without indemnified party's prior written consent, which consent shall not be
unreasonably withheld, delayed, or conditioned.
This Section 7 shall survive termination or expiration of this Agreement.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER
PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER UNDER
THE ORDER FORM FOR THE SERVICES FOR WHICH LIABILITY IS CLAIMED IN
THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO
LIABILITY.
8.2 Exclusion of Consequential Damages. SUBJECT TO SECTION 8.3, IN NO EVENT
SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY
LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE
HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS
OF GOOD WILL, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR COMPUTER
FAILURE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8.3 THE RESTRICTIONS ON THE TYPES AND AMOUNTS OF DAMAGES FOR
WHICH A PARTY MAY BE LIABLE HEREUNDER SHALL NOT APPLY TO EITHER
PARTY'S (1) BREACH OF INTELLECTUAL PROPERTY RIGHTS OR (II)
INDEMNIFICATION OBLIGATIONS HEREUNDER.
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9. TERM & TERMINATION
9.1 Term. This Agreement commences on the earlier of (a) the date both parties
execute an initial Order or (b) the date you initially begin using the Services and
continues for a period of two (2) years unless earlier terminated as set forth in this
Section 9 (the "Term"). Subscriptions to the SaaS Services commence on the
Subscription Start Date set forth in the Order and continue for a period of two (2) years.
9.2 Termination. A party may terminate this Agreement for cause upon thirty (30) days'
written notice of a material breach to the other party if such breach remains uncured
(if curable using commercially reasonable efforts) at the expiration of such thirty (30)
day period; provided, however, that 120Water may terminate this Agreement or the
applicable Order for non-payment in accordance with Section 3.2 hereof. 120Water
may immediately terminate this Agreement for cause if Customer breaches any of the
Use Restrictions. This Agreement may also be terminated by either party immediately
upon written notice to the other party if the other party: (a) becomes insolvent, (b)
voluntarily commences any proceeding or files any petition under applicable
bankruptcy laws, (c) becomes subject to any involuntary bankruptcy or insolvency
proceedings under applicable laws, which proceedings are not dismissed within thirty
(30) days, (d) makes an assignment for the benefit of its creditors, or (e) appoints a
receiver, trustee, custodian or liquidator for a substantial portion of its property, assets
or business. In addition, 120Water may terminate this Agreement, in whole or in part,
or cease provision of Services if required to comply with applicable law or regulation.
Termination shall not relieve Customer of the obligation to pay any fees accrued or
payable to 120Water prior to the effective date of termination.
This Agreement shall terminate upon the City providing at least thirty (30) days' prior
written notice in the event of the City's non -appropriation of funds sufficient to meet its
obligations hereunder during any City fiscal year of this Agreement, or insufficient
funding for the Project.
9.3 Customer Data. Following the termination or expiration of this Agreement,
Customer shall have thirty (30) calendar days to access its account and
download/export Customer Data. Upon expiration of such thirty (30) calendar day
period, 120Water shall convert Customer's account to an inactive status. 120Water
may, but shall not be obligated to, delete all Customer Data after Customer's account
converts to inactive status.
10. INSURANCE
10.1 Insurance. During the Term, 120Water shall, at its own expense, maintain and
carry in full force and effect insurance policies with financially sound and reputable
insurers having limits of liability of not less than the following:
(i) COMMERCIAL GENERAL LIABILITY:
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120Water
$1,000,000 per occurrence for bodily injury and property damage;
$1,000,000 per occurrence for personal and advertising injury;
$2,000,000 aggregate for products and completed operations; and,
$2,000,000 general aggregate applying separately to the work performed
under the Agreement.
(ii) COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
(iii) WORKERS' COMPENSATION INSURANCE:
as required by the State of Indiana with statutory limits.
(iv) EMPLOYER'S LIABILITY:
$1,000,000 each accident for bodily injury;
$1,000,000 disease each employee; and,
$1,000,000 disease policy limit.
(v) TECHNOLOGY PROFESSIONAL LIABILITY:
$1,000,000 per claim/occurrence; and,
$2,000,000 policy aggregate.
10.2. In the event 120Water purchases an umbrella or excess insurance policy(ies) to
meet the minimum limits of insurance set forth in this Section 10, such insurance
policy(ies) shall afford no less coverage than the primary insurance policy(ies). Upon
Customer's request, Seller shall provide Customer with a certificate of insurance
evidencing the insurance coverage specified in this Section 10. The certificate of
insurance shall name Customer as an additional insured and loss payee. 120Water
shall provide Customer with 30 days' advance written notice in the event of a
cancellation or material change in such insurance policy. 120Water waives and
120Water shall cause its insurers to waive, any right of subrogation or other recovery
against Customer.
The General Liability and Automobile LiabilitZ insurance policies are to contain, or be
endorsed to contain, the following provisions:
City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. 120Water shall establish additional insured
status for the City and for all ongoing and completed operations by use of
ISO Form CG 20 10 11 85 or both CG 20 04 13 and CG 20 37 04 013 or by
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an executed manuscript insurance company endorsement providing
additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, 120Water's insurance coverage
shall be primary insurance with respect to the City, its officers, officials,
employees, agents, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, agents and
volunteers shall be excess of 120Water's insurance and shall not contribute
with it. 120Water shall establish primary and non-contributory status by
using ISO Form CG 20 01 04 13 or by an executed manuscript insurance
company endorsement that provides primary and non-contributory status
as broad as that contained in ISO Form CG 20 01 04 13.
The Workers' Com ensation insurance polic is to contain, or be endorsed to contain, the
following provision: 120Water and its insurer shall waive any right of subrogation against
City, its officers, officials, employees, agents and volunteers.
If the Professional Liability Errors and Omissions insurance Polic is written on a claims -
made form:
The retroactive date must be shown and must be before the effective date
of the Agreement or the commencement of work by 120Water.
2. Insurance must be maintained, and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement work or
termination of the Agreement, whichever occurs first, or, in the alternative,
the policy shall be endorsed to provide not less than a five (5) year discovery
period.
3. If coverage is canceled or non -renewed, and not replaced with another
claims -made policy form with a retroactive date prior to the effective date of
the Agreement or the commencement of work by 120Water, 120Water must
purchase "extended reporting" coverage for a minimum of five (5) years
completion of the Agreement work or termination of the Agreement,
whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to City for
review.
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5. These requirements shall survive expiration or termination of the
Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice has been given to City. 120Water is also responsible for
providing written notice to the City under the same terms and conditions. Upon issuance
by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in
coverage or in limits, 120Water shall furnish City with a new certificate and applicable
endorsements for such policy(ies). In the event any policy is due to expire during the
work to be performed for City, 120Water shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days
prior to the expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by 120Water shall not be deemed to release or
diminish the liability of 120Water pursuant this Agreement, including, without limitation,
liability under the indemnity provisions of this Agreement. The policy limits do not act as
a limitation upon the amount of indemnification to be provided by 120Water. Approval or
purchase of any insurance contracts or policies shall in no way relieve from liability nor
limit the liability pursuant to this Agreement of 120Water, its principals, officers, agents,
employees, persons under the supervision of 120Water, vendors, suppliers, invitees,
consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly
by any of them.
120WATER shall furnish City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or designee prior to City's
execution of the Agreement and before work commences. All non -ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of City, 120WATER shall immediately furnish City with a complete
copy of any insurance policy required under this Agreement, including all endorsements,
with said copy certified by the underwriter to be a true and correct copy of the original
policy. This requirement shall survive expiration or termination of this Agreement.
11. CONFLICT OF INTEREST AND NON -SOLICITATION.
(a) Prior to the City's execution of this Agreement, 120Water shall complete a
City of Fresno Disclosure of Conflict of Interest statement in the form as set
forth in Exhibit B attached hereto and incorporated herein. During the term
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of this Agreement, 120Water shall have the obligation and duty to
immediately notify the City in writing of any change to the information
provided by the Consultant in such statement.
(b) 120Water shall comply, and require its subcontractors to comply, with all
applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state, and local conflict of
interest laws and regulations including, without limitation, California
Government Code Section 1090 et. seq., the California Political Reform Act
(California Government Code Section 87100 et. seq.) and the regulations
of the Fair Political Practices Commission concerning disclosure and
disqualification (2 California Code of Regulations Section 18700 et. seq.).
At any time, upon written request of the City, 120Water shall provide a
written opinion of its legal counsel and that of any subcontractor that, after
a due diligent inquiry, 120Water and the respective subcontractor(s) are in
full compliance with all laws and regulations. 120Water shall take, and
require its subcontractors to take, reasonable steps to avoid any
appearance of a conflict of interest. Upon discovery of any facts giving rise
to the appearance of a conflict of interest, 120Water shall immediately notify
the City of these facts in writing.
(c) In performing the work or Services to be provided hereunder, 120Water
shall not employ or retain the services of any person while such person
either is employed by the City or is a member of any City council,
commission, board, committee, or similar City body. This requirement may
be waived in writing by the City Manager, if no actual or potential conflict is
involved.
(d) 120Water represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct, or indirect, to solicit, or
procure this Agreement or any rights/benefits hereunder.
(e) Neither 120Water, nor any of 120Water's subcontractors performing any
Services on this Project, shall bid for, assist anyone in the preparation of a
bid for, or perform any services pursuant to, any other contract in connection
with this Project unless fully disclosed to and approved by the City Manager,
in advance and in writing. 120Water and any of its subcontractors shall have
no interest, direct or indirect, in any other contract with a third party in
connection with this Project unless such interest is in accordance with all
applicable law and fully disclosed to and approved by the City Manager, in
advance and in writing. Notwithstanding any approval given by the City
Manager under this provision, 120Water shall remain responsible for
complying with Section 9(b), above.
(f) If 120Water should subcontract all or any portion of the work to be
performed or Services to be provided under this Agreement, 120Water shall
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to120Water
include the provisions of this Section 11 in each subcontract and require its
subcontractors to comply therewith.
(g) This Section 11 shall survive expiration or termination of this Agreement.
12. GENERAL PROVISIONS
12.1 Relationship of the Parties; Customer Name and Logo. The relationship between
the parties created by this Agreement is one of independent contractors and neither
party shall have the power or authority to bind or obligate the other except as expressly
set forth in this Agreement. This Agreement does not create a partnership, franchise,
joint venture, agency, fiduciary, or employment relationship between the parties. There
are no third -party beneficiaries to this Agreement. 120Water may not (a) use
Customer's name and logo in 120Water's customer list, on 120Water's website, and
in 120Water's marketing materials; or (b) allow 120Water to reference Customer in a
press release that announces Customer's decision to use 120Water Services, without
the approval of the City Manager.
12.2 Assignment. Customer may not assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of 120Water.
Notwithstanding the foregoing, Customer may assign this Agreement in its entirety
(including all Orders), without consent of 120Water, in connection with a merger,
acquisition, corporate reorganization, or sale of all or substantially all of its assets not
involving a direct competitor of 120Water. Any attempt by Customer to assign its rights
or obligations under this Agreement in breach of this Section shall be void and of no
effect. 120Water may freely assign this Agreement and its rights and obligations
hereunder or may delegate or subcontract to third parties any of its duties and
obligations hereunder, without the need for the consent of Customer. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties, their
respective successors and permitted assigns.
12.3 Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
12.4 Modifications. The parties may modify this Agreement only by written amendment
signed by an authorized representative for each party.
12.5 Force Maieure. In no event will 120Water be liable or responsible to Customer,
or be deemed to have defaulted under or breached this Agreement, for any failure or
delay in fulfilling or performing any term of this Agreement, when and to the extent
such failure or delay is caused by any circumstances beyond 120Water's control (a
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120Water
"Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion,
pandemics, endemics, war, terrorism, invasion, riot or other civil unrest, embargoes or
blockades in effect on or after the date of this Agreement, national or regional
emergency, strikes, labor stoppages or slowdowns or other industrial disturbances,
passage of law or any action taken by a governmental or public authority, or national
or regional shortage of adequate power or telecommunications or transportation.
120Water may terminate this Agreement if a Force Majeure Event continues
substantially uninterrupted for a period of 30 days or more.
12.6 Miscellaneous. This Agreement, including all Orders and Exhibits, constitutes the
sole and entire agreement between you and 120 Water Audit, Inc., with respect to the
Website, the Services, and purchased goods, and supersede all prior and
contemporaneous understandings, agreements, representations, and warranties, both
written and oral, with respect to the Website, the Services, or purchased goods. To the
extent of any conflict or inconsistency between the provisions in the body of this
Agreement and any Order or Exhibit, the terms in the body of this Agreement shall
prevail unless expressly stated otherwise in such Order or Exhibit. When used herein,
the words "includes" or "including" means "including but not limited to". Any provision
of this Agreement which is prohibited and unenforceable in any jurisdiction shall be
replaced with a valid provision that is closer to the scope and intent of the invalid
provision and shall not affect the validity of the remaining provisions hereof.
12.7. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
12.8 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or
in equity.
12.9. No Third -Party Beneficiaries. The rights, interests, duties, and obligations
defined within this Agreement are intended for the specific parties hereto as identified
in the preamble of this Agreement. Notwithstanding anything stated to the contrary in
this Agreement, it is not intended that any rights or interests in this Agreement benefit
or flow to the interest of any third parties.
12.10 Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or by nationally recognized overnight delivery service (e.g., Fed Ex, UPS, etc.),
or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as
the parties may from time to time designate by written notice. Notices served in the
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+ 120Water
manner above described shall be deemed sufficiently served or given at the time of
the mailing or sending thereof.
12.11 Severability. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
12.12 Waiver. The waiver by either party of a breach by the other of any provision of
this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of
this Agreement may be waived unless in writing and signed by all parties to this
Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of
any other provision herein.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the Effective Date.
CITY OF FRESNO,
A Ca ' ,2da,t 4nicipal corporation
�1t,�SSa �t,VA�LS
By: 4/12/2023
Melissa Perales
Purchasing Manager
APPROVED AS TO FORM:
ANDREW JANZ
City All , Yrl by: 11 11
,t,lalnlFLV c:YU.lv�.rAdn (t& 4/12/2023
Jennifer M. QUintanilla Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City EkSigned by:
By. `r UAA AL gbiW 4/13/2023
Deputy Date
Tina M Your
Addresses:
CITY:
City of Fresno
Attention: Chad Colby
Water System Manager
1910 E University
Fresno, California 93703
Phone: (559) 621-5383
E-mail: Russell.Guilliams@fresno.gov
120 Water Audit, Inc.
pocuSigned by:
4/11/2023
F�ow�. i�lbwC.�
By:
Megan Glover
Name:
President
Title:
(If corporation or LLC., Board
ChgirC,,P, aeaspy., or Vice Pres.)
By: F
4/11/2023
egan Bearry
Name:
Title:
Treasurer
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
120Water:
120 Water Audit, Inc.
Attention: Rory Billing
Project Manager
625 S. Main St.
Zionsville, Indiana 46077
Phone: (888) 317-1510
E-mail: Rory@120water.com
Attachments:
1. Exhibit A— Initial Order
2. Exhibit B - Conflict of Interest Disclosure Form
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Included in this Proposal:
S-PWS-E01
EXHIBIT A
Order Form
120Water Platform: Pro
CONFIDENTIAL
SVC-RS-PE-01 Program Consulting
Annual Recurring Subscription
SVC-OS-
IMP
Implementation
1
1
$43,250
1
One Time Cost 1 $1,500
Billing and Payment Terms:
Fees are billed annually on the Start Date above and are due net 30 days from the
invoice date.
Additional Notes:
120Water will commence implementation within 10 business days of Signature.
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EXHIBIT B
DISCLOSURE OF CONFLICT OF INTEREST
120Water-Fresn❑ Master Services Agreement
YES*
NO
1
Are you currently in litigation with the City of Fresno or any of
❑
its agents?
2
Do you represent any firm, organization, or person who is in
❑
litigation with the City of Fresno?
3
Do you currently represent or perform work for any clients who
❑
do business with the City of Fresno?
4
Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with
❑
❑
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5
Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee
❑
who has any significant role in the subject matter of this
service?
6
Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in
n
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation -
Li Additional page(s) attached.
q°"
Signature
4/3/2023
Date
Sarah Youna
Name
120 Water Audit, Inc.
625 S. Main St.
Zionsville, Indiana 46077
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