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HomeMy WebLinkAbout13-177 - Initial Point LLC - Assisted Patrol Bait System (Police)13-177 Council Approval N /A. InitialPoint MASTER AGREEMENT THIS MASTER AGREEMENT ( "Agreement ") is entered into this day of YQ4 ;- 201 , by and between INITIAL POINT, LLC, an Ohio limited liability company ( "Initial Point "), and Tukwila Washington Police Department, ( "Customer "). RECITALS Initial Point has a theft apprehension system, called Assisted Patrol (the "System "), which Customer desires to use for the tracking of certain criminal activity. Initial Point and Customer desire to enter into this Agreement to govern the terms and conditions of the use of the System by Customer. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. OBLIGATIONS OF INITIAL POINT. Initial Point will provide the following to Customer, subject to the terms and conditions set forth herein: (a) The lease to Customer of the number of units of Assisted Patrol Bait Systems specified in the Appendix A, Assisted Patrol Order Form attached hereto, and which Systems consist of: (i) Electronic hardware loaded with the Assisted Patrol software (ii) Cellular /Internet connections to transmit data from the bait; (b) Assisted Patrol Tracking Software used to track criminal action, which may be loaded on multiple smart phones and dispatcher computers that support browsers; (c) Cloud storage to collect the data from the bait; (d) A limited, nonexclusive license to Customer to use the Assisted Patrol Tracking Software included in the System, and to access the data in cloud storage; (e) Online training for Customer's personnel on the use of the System; (f) Technical assistance and monitoring for any technical issues that may arise with the System, in accordance with Initial Point's then - current technical support plan; (g) Data supplied to prosecutors for the criminal case free of charge, during the Term of this Agreement (as defined below); and (h) Replacement of any bait that is lost or damaged during a theft at Initial Point's expense. 2. OBLIGATIONS OF CUSTOMER. Customer will provide and /or take the following actions in accordance with the terms and conditions of this Agreement: (a) A completed Appendix A Assisted Patrol Order Form, specifying the number of units and duration of the usage thereof; (b) Analysis to determine the best locations for operations; (c) Location and times that the missions will take place; (d) Vehicle used for the System (if Customer wishes to use the bait for auto theft); (e) Personnel who will monitor the missions, and respond to theft alerts. (f) Access to Initial Point of arrest information and related data for marketing purposes within the scope of applicable law; and (g) Prompt notification to Initial Point of any loss or damage to any of the bait or other equipment. Provided that Customer remains in compliance with the terms and conditions set forth herein, Customer shall be entitled to deploy the System an unlimited number of times each month during the Term of this Agreement. 3. FEES AND CHARGES. Charges for the system are listed in Appendix A, and are due and payable within ten (10) days after receipt of an invoice therefore by Customer. Customer shall be responsible for the payment of all sales, use, and other related taxes and charges associated with this Agreement and the use of the System, and if applicable and upon request, Customer shall provide Initial Point with any exemption certificates applicable to Customer. 2 4. TERM. The initial term of this Agreement ( "Initial Term ") shall be as specified in the attached Appendix A. Customer may elect to return the System, including the bait and all equipment, after the Initial Term specified in Appendix A, or if Customer is in compliance with all of Customer's obligations pursuant to this Agreement, Customer may extend the use of the System on a monthly basis or longer by submitting written notice of such desired extension to Initial Point (the Initial Term, plus any extension thereof in accordance with this Section 4 shall be referred to herein as the "Term "). If Customer elects to extend the usage of the System, such extension shall be subject to all of the terms and conditions set forth herein, and Initial Point will continue to invoice Customer for such usage at the rate set forth in Appendix A without a rate increase for a minimum of two years after the initial contract term. Customer shall promptly pay all invoices for use of the System until the System, including all bait and equipment, are returned to Initial Point, and the terms and conditions of this Agreement will continue until such time as such items are returned and all other obligations of Customer hereunder have been completed in accordance with this Agreement. Upon the final termination of this Agreement, Customer shall promptly return to Initial Point the System, including all bait, related equipment, all cards and handouts relating to the System remaining in Customer's possession, if any, and all other items and documentation provided by Initial Point. Additionally, at such time, Customer shall immediately discontinue the use and distribution of all cards, handouts, and other items and documentation in Customer's possession. 5. PURCHASE OPTION. This Agreement is intended to be a true lease, and the parties each shall treat this Agreement as a true lease for all purposes, including, without limitation, legal, tax, and accounting purposes. If, however, at any time, Customer desires to purchase the bait and equipment specified in Appendix A, Customer may purchase from Initial Point such bait and equipment for the purchase price of One Thousand Five Hundred Dollars ($1,500) per unit, provided that Customer has paid all amounts due to Initial Point through the date of such desired purchase, does not owe any past due amounts to Initial Point or otherwise is not in breach hereunder, and further subject to the additional terms and conditions set forth herein. The purchase of the bait and equipment shall be in its "as is" condition, and Initial Point shall make no representations or warranties to Customer regarding the condition thereof. In the event that Customer purchases the bait and equipment in accordance with this Section 5, Customer acknowledges and agrees that Initial Point shall continue to own the underlying software embedded therein, and Customer's obligations set forth below with respect to the software shall survive the transfer of ownership of the bait and equipment to Customer, and any termination of this Agreement. In such event, the license for the use of the software provided above shall become a perpetual, rather than a limited license (subject to Customer's obligations set forth below), and Customer shall pay to Initial Point an monthly license and maintenance fee for the software equal to Three Hundred Dollars ($300) per unit . The provisions of this Section 5 shall survive any termination of this Agreement. In the event that Customer desires to discontinue payment for the annual license and maintenance fee, or otherwise fails to make such payment, the license set forth herein shall immediately terminate, and Customer shall discontinue use of the System, including all bait and equipment. 3 6. OWNERSHIP OF SYSTEM AND DATA. The bait devices, the software contained therein, all data generated by the System, including that in cloud storage, and all intellectual property rights thereto and in and to all other materials provided by Initial Point are the exclusive property of Initial Point. Title to the bait and related equipment may be transferred to Customer only in accordance with Section 5 hereof, provided that in no circumstances shall title to the software or any intellectual property rights thereto be transferred to Customer. 7. CONDITIONS TO AGREEMENT AND USE OF THE SYSTEM. Customer acknowledges and agrees that, as a condition to this Agreement and the use of the System by Customer: (i) in no event will Customer use the System for other than the surveillance and tracking of criminal activity within Customer's jurisdiction (ii) that Customer shall not, whether during or after the termination of this Agreement (and this item (iii) shall survive any termination of this Agreement): (a) modify, adapt, alter, translate, or create derivative works from the software contained in the bait, cloud, or smart phones, the data in cloud storage, or any other intellectual property owned by Initial Point; (b) merge the software and bait and smart phone with other software; (c) sell, lease, sublicense, pledge, encumber, or otherwise transfer, provide or disclose the software in the bait and smart phones and the data in cloud storage to any third party except as required by law; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the software in the bait and smart phones; or (e) assign this Agreement to any third party. Initial Point shall have no liability or responsibility to Customer for any violation by Customer of these provisions, and Customer assumes all liability and responsibility for any violation of these provisions. 8. INDEMNIFICATION. Customer will defend and hold Initial Point harmless from any claims, liability, costs, and expenses, including attorneys' fees, associated with the use by Customer of the System, including, but not limited to, the bait, equipment, software, and any other materials provided by Initial Point, and any breach by Customer of the provisions of this Agreement; provided, Customer shall not be required to defend or hold Initial Point harmless from any claim arising out of Initial Point's own negligence. In the event that an Initial Point representative is required to testify in any proceeding, including, but not limited to, grand jury, preliminary hearing, deposition, or trial, Customer shall reimburse Initial Point for all cost and expenses related thereto, including transportation costs, lodging, meals, and attorney fees. This Section 8 shall survive any termination of this Agreement. 4 9. DISCLAIMER OF ALL WARRANTIES AND DAMAGES. INITIAL POINT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF WORKMANLIKE PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOMER ACCEPTS THE SYSTEM IN ITS "AS IS" CONDITION. INITIAL POINT SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES FOR ANY REASON WHATSOEVER, AND INITIAL POINT'S LIABILITY FOR ANY DAMAGES TO CUSTOMER FOR ANY REASON, AND CUSTOMER'S SOLE REMEDY HEREUNDER, SHALL BE LIMITED TO THE AMOUNT THAT CUSTOMER PAID TO INITIAL POINT PURSUANT TO THIS AGREEMENT. THIS PROVISION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. 10. NOTICE AND ADDRESS FOR PAYMENT. All notifications to Initial Point, and all payments to Initial Point shall be sent to: Initial Point, LLC 2130 Hedge Gate Blvd Beavercreek, OH 45431 937.673.8654 David.Gasper@Initial-Point.com All notifications to Customer shall be sent to: Tukwila Police Department 6200 Southcenter Blvd Tukwila, WA 98188 11. RELATIONSHIP OF PARTIES. No agency, partnership, joint venture, or other relationship shall be created between Initial Point and Customer as a result of this Agreement, and neither party shall be responsible for the acts or omissions of the other party or its agents. 12. COMPLETE AGREEMENT. This Agreement, including the completed Appendix A to be attached hereto, which Appendix A has been approved by Initial Point, reflects all of the agreements of the parties hereto, and supersedes any other discussions or agreements between the parties. 13. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by the laws of the State of Ohio, and any disputes relating to this Agreement or the subject matter hereof shall be brought only in state or federal court presiding in the State of Ohio, County of Montgomery. 5 14. PARTIAL INVALIDITY. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein unless the deletion of such provision or provisions would result in such a material change as to cause completion of the transactions contemplated hereby to be unreasonable. 15. ASSIGNMENT. This Agreement may not be assigned by Customer without the prior written consent of Initial Point, which may be granted or withheld by Initial Point in Initial Point's sole discretion. 16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 17. AMENDMENT; WAIVER. This Agreement may not be amended except by an instrument in writing signed by the parties hereto. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written instrument signed by the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived. [SIGNATURES ON FOLLOWING PAGE] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. INITIAL POINT, LLC, an Ohio limited liability company By. Dc 6 David Gasper President City of Tukwila Tukwila Police Department 7 ASSSTED Appendix A Assisted Patrol Order Form Bait Configuration Name Monthly Rate Per Unit Number of Months Number of Units Total Price Tablet $300 12 1 $3,600 Cell Phone $300 12 1 $3,600 Cell Phone $300 3 1 $900 Tablet $300 3 1 $900 Total $9,000 Term Period Begin Date Administrator Contact Information Name Phi Huynh Phone Number* City of Tukwila, Police Department *Mobile number preferred to receive text messages Billing Information Contact Name Phi Huynh Organization Name City of Tukwila, Police Department Billing Address 6200 Southcenter Blvd Tukwila, WA 98188 Billing Phone Number 206-433-7175 Approved by Initial Point: (1) All orders are subject to approval by Initial Point, to the terms and conditions set forth in the letter agreement with Initial Point and Tukwila Washington Police Department dated N/A , 201 , and any other standard terms and conditions of Initial Point. 8