HomeMy WebLinkAbout21-003 - Omiga Solutions, Inc - Master Services Agreement").%1)/ IGA
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20-003
Council Approval N/A
1. Applicability. Each OMIGA SOLUTIONS INC. Statement of Work and or Service Level
Agreement together with this Master Services Agreement ("Offer") is an offer by Omiga
Solutions Inc. ("OMIGA SOLUTIONS') to City of Tukwila ("CUSTOMER"), individually a
party and collectively the parties, to sell to CUSTOMER the professional services
performed by OMIGA SOLUTIONS and to enter into the agreement that the offer
describes.
2. Acceptance. Each Offer shall be deemed accepted upon the terms and conditions of
such Offer by CUSTOMER by written acknowledgement or by the issuance to OMIGA
SOLUTIONS of a purchase order or other acceptance document. Acceptance is expressly
limited to these terms and conditions. No purported acceptance of any Offer on terms
and conditions which modify, supersede, supplement or otherwise alter these terms
and conditions, whether contained in CUSTOMER's purchase order or other acceptance
document, shall be binding upon OMIGA SOLUTIONS and such terms and conditions
shall be deemed rjected and replaced by these terms and conditions unless
CUSTOMER's proffered terms or conditions are accepted and physically signed in writing
by OMIGA SOLUTIONS. Notwithstanding any contrary provision in CUSTOMER's
purchase order or other acceptance document, commencement of work by OMIGA
SOLUTIONS shall not constitute acceptance of CUSTOMER's terms and conditions.
3. Limited Warranty and Acceptance of Services. The Services will be performed by
OMIGA SOLUTIONS in a manner consistent with commercial reasonable practices in the
computer services industry. OMIGA SOLUTIONS warrants that it owns or otherwise has
the rights in the Services and has the right to license the Services as described in this
Agreement. Further, OMIGA SOLUTIONS warrants to Customer that upon delivery to
CUSTOMER the Services (as delivered to CUSTOMER by OMIGA SOLUTOINS and when
properly used for the purpose and manner authorized by this Agreement), will perform
as described in the Agreement in all material respects, including being free from any
viruses or any software, hardware, device or other technology, including any virus,
worm, malware, or other malicious computer code, the purpose or effect of which is to
(a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise
harm or impede any (i) computer, software, firmware, hardware, system, or network; or
(ii) any application or function of any of the foregoing or the security, integrity,
confidentiality, or use of any data Processed thereby; or (b) prevent CUSTOMER or any
Authorized User from accessing or using the Services as intended by this Agreement.
4, All Service deliverables will be deemed accepted by CUSTOMER if not rejected in a
reasonably detailed writing within fifteen (15) days of submission to CUSTOMER. In the
event the Services are not in conformance with this warranty and are rjected as
specified above, OMIGA SOLUTIONS will supply commercially reasonable services to
correct or replace the Services at no charge to the CUSTOMER. THIS IS CUSTOMER's
EXCLUSIVE REMEDY FOR BREACH OF WARRANTY relating to Services.
S. Service Warranty DimcKaimmr, OMIGA SOLUTIONS MAKES NO WARRANTIES OF ANY
KIND WITH REGARD TO THE SERVICES (other than the Iimited and exclusive warranty
provided for Services under Section 3), OMIGA SOLUTIONS DISCLAIMS ALL OTHER
,
SOLUTIONS
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE Services,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FORA PARTICULAR PURPOSE.
6. Intellectual Property for Services.
(a) Upon payment in full for all undisputed charges under this Agreement, OMIGA
SOLUTIONS will grant CUSTOMER such rights, title, and interest it may own to
the software and documentation developed by OMIGA SOLUTIONS specifically
for CUSTOMER under this Agreement subject to the following limitation: OMIGA
SOLUTIONS retains a world-wide, unlimited, perpetual and royalty free right to
(i) copy and use the software and documentation internally for any purpose; (ii)
copy and distribute to third parties software which performs a general utility
function; and (iii) use for any purpose any concepts, ideas, or techniques
resulting from the development of the software and documentation by OMIGA
SOLUTIONS.
(b) OMIGA SOLUTIONS grants to CUSTOMER all right, title, and interest in the
software and documentation that is an enhancement to or modification of
existing software or documentation on all of the CUSTOMER's computer
systems.
(c) Any OMIGA SOLUTIONS software, equipment or consulting, programming, or
management tools which may be furnished or utilized by OMIGA SOLUTIONS in
the performance of these services shall remain the property of OMIGA
SOLUTIONS and shall be immediately returned to OMIGA SOLUTIONS, upon its
request or upon completion of the Services.
7. Service WorkAssignments to Code Smart, LLC. OMIGA SOLUTIONS retains the right to
assign personnel from Code Smart, LLC to perform Services in accordance with the
Agreement.
8. Service Work Assignments other than Code Smart, LLC. Upon prior written acceptance
from CUSTOMER, OMIGA SOLUTIONS retains the right to assign such personnel,
including subcontractors, as it deems appropriate to the performance of Services under
the Agreement.
9. CUSTOMER Coordination for Services. CUSTOMER will provide a primary point of
contact and make available all technical matter, data, information, operating supplies,
and computer system(s), as reasonably required by OMIGA SOLUTIONS. OMIGA
SOLUTIONS will assign a primary contact person for the Services. Should the point of
contact for either party change, the respective party will notify the other party of such
change and aid in the transition to the new point of contact.
10. Price and Payment. The prices in this Agreement are exclusive of all applicable taxes,
duties, licenses, and tariffs levied upon the sale, purchase or delivery of the Services
which remain the CUSTOMER's obligation. Prices quoted are firm for thirty (30) days
following the quote unless otherwise provided on the Offer. Except for COD accounts
that are due on delivery, payment is due forty-five (45) days from the date of the
undisputed invoice which will be after the services has been received and accepted by
the CUSTOMER. All payments will be made in US currency. Out of pocket expenses will
be charged as incurred. Unless expressly provided to the contrary, items designated by
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SOLUTIONS
OMIGA SOLUTIONS as estimates are estimates only and are not binding commitments.
CUSTOMER will pay interest in the amount of one-half percent (.5%) per month, or the
maximum allowed by law whichever is lower, on any outstanding balance owed.
11. Confidential Information. Written and oral information designated as confidential by
either party whether before or after the effective date of this Agreement shall be held in
strict confidence and used only for purposes of this Agreement. Except as required by
law„ in confidential information, including the provisions of this Agreement, shall be
disclosed without the prior written consent of the party designating the information as
confidential. If either party is required to disclose any confidential information of the
other party, the party so required shall notify the other party immediately. This section
shall not apply to information, which is (i) in the public domain, (11) already known to the
recipient, (Hi) developed independently or (iv) received from a third party without
similar restriction and without breach of this or a similar agreement.
(a) Termination. Upon expiration or termination of thisAgreement, or upon written
demand by either party, the non -requesting party shall either (i) return to the
requesting party all copies of the requesting party's Confidential Information in
the non -requesting party's possession, or (ii) destroy all copies of the requesting
party's Confidential Information in the non -requesting party's possession and so
certify such destruction to the requesting party in writing. Notwithstanding the
foregoing, CUSTOMER may retain data or records in electronic form containing
Confidential Information for the purposes of backup, recovery, contingency
planning, or business continuity planning, so long as such data or records, to the
extent not permanently deleted or overwritten in the ordinary course of
business, are not accessible in the ordinary course of business and are not
accessed except as required by CUSTOMER only for backup, recovery,
contingency planning, or business continuity purposes.
12. Records Requests. OMIGA SOLUTIONS acknowledges that CUSTOMER is a public entity
and is subject to the Public Records Act under Chapter 42.56 RCW. To the extent
permitted by law, CUSTOMER shall treat as exempt from treatment as a public record
and shall not disclose in response to a request made pursuant to any applicable public
records law„ any of OMIGA SOLUTIONS' Confidential Information. If a request is received
for records OMIGA SOLUTIONS has submitted to CUSTOMER and has identified as
Confidential Information„ CUSTOMER will use its best efforts to provide OMIGA
SOLUTIONS with notice of the request in accordance with RCW 42.56.540 and a
reasonable time within which OMIGA SOLUTIONS may seek an injunction to prohibit
CUSTOMER'S disclosure of the requested record. CUSTOMER shall comply with any
injunction or court order requested by OMIGA SOLUTIONS which prohibits the
disclosure of any such Confidential Information; however, in the event a higher court
overturns such injunction or court order, OMIGA SOLUTIONS shall reimburse
CUSTOMER for any fines or penalties imposed for failure to disclose such records.
Nothing in this Section prohibits CUSTOMER from complying with RCW 42.56, or any
other applicable law or court order requiring the release of public records, and
CUSTOMER shall not be liable to OMIGA SOLUTIONS for compliance with any law or
court order requiring the release of public records.
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SOLUTIONS
13. Export. CUSTOMER acknowledges that it is responsible for complying with (and agrees
to comply with) all applicable export and re-export control laws and regulations,
including, without limitation, the Export Administration Regulations maintained by the
United States Department of Commerce. Specifically, CUSTOMER covenants that it shall
not directly or indirectly sell, export (including without limitation any deemed
export as defined by applicable law), re-export, transfer, divert, or otherwise dispose of
any Service deliverable to any country (or national thereof) subject to antiterrorism
controls, U.S. embargo, encryption technology controls, or any other person, entity (or
utilize any such person or entity in connection with the activities listed above), or
destination prohibited by the laws or regulations of the United States, without obtaining
prior authorization from the competent government authorities as required by those
laws and regulations. CUSTOMER certifies, represents and warrants that no Service shall
be used for any military or defense purpose, including, without limitation, being used to
design, develop, engineer, manufacture, produce, assemble, test, repair, maintain,
modify, operate, demilitarize, destroy, process, or use military or defense articles.
Notwithstanding any provision of IT services or designs by OMIGA SOLUTIONS,
CUSTOMER acknowledges that it is not relying on OMIGA SOLUTIONS for any advice or
counseling on such export control requirements. CUSTOMER agrees to indemnify, to
the fullest extent permitted by law, OMIGA SOLUTIONS from and against any fines,
penalties and reasonable attorney fees that may arise as a result of CUSTOMER's breach
of this Section.
14. Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM OMIGA
SOLUTIONS FOR WARRANTY CLAIMS.
15. Cancellation of Order. Either party may terminate this Agreement for any reason on the
anniversary date of the Effective Date of this Agreement by giving the other party 30
days' notice written notice. If CUSTOMER terminates the Agreement, CUSTOMER shall
reimburse OMIGA SOLUTIONS for all work and services already completed. If OMIGA
SOLUTIONS terminates the Agreement, OMIGA SOLUTIONS shall reimburse CUSTOMER
on a pro rata basis for any prepaid fees.
16. Additional Contractual Rights for Default. If CUSTOMER defaults in performance of any
obligation under this Agreement, including the payment of any undisputed amount due,
OMIGA SOLUTIONS may, at its option, suspend performance, require prepayment, or
terminate its performance and collect payment for all Services provided up to the date
of termination. If OMIGA SOLUTIONS defaults in performance of any obligation under
this Agreement CUSTOMER may, at its option, suspend performance of the Agreement
or terminate the Agreement and OMIGA SOLUTIONS shall reimburse CUSTOMER on a
pro rata basis for any prepaid fees.
17. Attorney Fees. In the event that any suit or action is instituted to enforce any provision
in this Agreement, the prevailing party in such dispute shall be entitled to recover from
the losing party all fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Agreement, including without limitation, such
reasonable fees and expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
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18. Publication. Nothing contained in this Agreement shall be interpreted so as to prevent
OMIGA SOLUTIONS from publicizing its business relationship with CUSTOMER, but it will
be only done with written consent from CUSTOMER on a case by case basis.
19. No Solicitation. As permitted by law CUSTOMER agrees not to solicit for employment or
to employ any OMIGA SOLUTIONS employee during work being performed and for a
period of twelve (12) months following the conclusion of the work performed under this
Agreement. OMIGA SOLUTIONS agrees not to solicit for employment or to employ any
CUSTOMER employee during work being performed and for a period of twelve (12)
months following the conclusion of the work performed under this Agreement.
20. Indemnification. To the extent permitted under applicable law, each Party shall defend,
indemnify, and hold harmless the other Party, its affiliates, and their elected officials,
officers, directors, employees, and agents (the "indemnified parties") against and from
any and all losses, liabilities, damages, actions, claims, demands, settlements,
judgments, and any other expenses (including reasonable attorneys' fees), which are
asserted against the indemnified parties by a third party, but only to the extent caused
by (i) violation of law in the performance of its obligations under this Agreement by the
indemnifying Party, its affiliates, or the elected officials, officers, directors, employees,
or agents of such Party (the "indemnifying parties"); (ii) the gross negligence or willful
misconduct of the indemnifying Parties during the term of this Agreement; (iii) violation,
infringement or misappropriation of any U.S. patent, copyright, trade secret or other
intellectual property right; (iv) with respect to OMIGA SOLUTIONS, a breach of
CUSTOMER Data. The indemnities in this section are subject to the indemnified Parties
promptly notifying the indemnifying Parties in writing of any claims or suits; provided
that an indemnified party's failure to so notify and request indemnification shall not
relieve the indemnifying party of any liability that the indemnifying party might have,
except to the extent that such failure prejudices the indemnifying party's ability to
defend such claim or suit.
21. Notices. All notices and other communications, except breach notifications which are
provided for in Section 21, required or permitted under this Agreement must be in
writing and will be deemed given when delivered personally, sent by United States
registered or certified mail, return receipt requested; transmitted by facsimile or email
confirmed by United States first class mail, or sent by overnight courier. Notices must
be sent to a Party at its address shown below, or to such other place as the Party may
subsequently designate for its receipt of notices in writing by the other Party.
CustomerTu ila Municipal Court
[name] LaTricia Kinlow
[address] 15005 Tukwila International IBlvd
[email] Trish IKinlow TUIKWIILAWA GOV
[phone number] 206-433-1840
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Omiga Solutions
Mark W. Meyer
975 Carpenter Road NE
Lacey, WA 98516
Mark.meyer@omigasolutions.com
425-444-6174
IGA
// SOLUTIONS OmUTvONS
22, Breach Notification. OMIGA SOLUTIONS shall report, in writing, to CUSTOMER any data
breach involving data maintained by OMIGA SOLUTIONS on behalf of the City ("City
Data") including any reasonable belief that an unauthorized individual has accessed City
Data. The report shall identify the nature of the event, alist of the affected individuals
and the types of data, and the mitigation and investigation efforts of OMIGA
SOLUTIONS. OMIGA SOLUTIONS shall make the report to CUSTOMER immediately upon
discovery of the data breach, but in no event more than five (5) business days after
discovery of the data breach. OMIGA SOLUTIONS shall provide investigation updates to
CUSTOMER. Breach notifications shall be sent to:
(A) Bao Thmh-bam.trimh�n.ukwilawo�ov
23, Governing LawThese Terms and Conditions will be construed in accordance with the
laws of the State of Washington. All legal claims must be filed in King County Superior
Court.
24, No Waiver, The failure of either party to insist upon strict performance of any of the
provisions Vfthe Terms and Conditions will not be deemed a waiver of any breach or
default. The remedies provided to either party hereunder are not a waiver of the
remedies of either party under applicable Iaw.
25, Severability. If any provision of the Agreement is unenforceable as a matter of law, all
Other provisions will remain in effect.
26. Amendments. This Agreement may not be amended except by an instru ent in writing
signed on behalf of each of the parties hereto.
27, Excusable Delay. Neither party will not be liable for any delay or failure of performance
whatsoever due to acts of God, earthquakes, shortage of supplies, transportation
difficulties, labor disputes, riots, war, fire, epidemics or other circumstances beyond that
party's control.
28, Insurance, OM IGA SOLUTIONS agrees for the duration of this contract to procure and
maintain insurance against claims for injuries to persons or damage to property which
may arise from or in connection with OMIGA SOLUTIONS's services supplied to the
CUSTOMER. OMIGA SOLUTIONS's maintenance of insurance as required by this
agreement shall not be construed to limit the Iiability of OMIGA SOLUTIONStothe
coverage provided by such insurance, or otherwise limit the CUSTOMER's recourse to
any remedy available at law or in equity. OMIGA SOLUTIONS agrees to procure and
maintain a Commercial General Liability insurance that shall be written on Insurance
Services Office (150) occurrence form CG 00 01 and shall cover products Iiability. The
CUSTOMER shall be named as an insured under OMIGA SOLUTIONS's Commercial
General Liability insurance policy using150 Additional Insured -Contractor's
Endorsement CG 20 15 or a substitute endorsement providing equivalent coverage.
Commercial General Liability insurance shall be written with limits of no less than
$l,OOO,OOOeach occurrence, $l,OOO,OOOgeneral aggregate and a $2,000,000 products
SOLUTIONS OmUTvONS
liability aggregate limit. The insurance coverage shall be the primary insurance as
respect to the CUSTOMER. Any insurance, self-insurance, or insurance pool coverage
maintained by the CUSTOMER shall be excess of OMIGA SOLUTIONS's insurance and
shall not contribute with it. OMIGA SOLUTIONS's insurance shall be endorsed to state
that the coverage shall not be cancelled by either party, except after thirty (30) DAYS
prior written notice by certified mail, return request, has been given to the CUSTOMER.
The said insurance is to be placed with insurers with a current A.B. Best rating of not Iess
than A: VII. OMIGA SOLUTIONS will furnish the CUSTOMER with the original certificate
and a copy of the amendatory endorsements, including but not necessarily Iimited to
the additional insured endorsement, evidencing the insurance requirements of this
contract before security services will commence and be accepted by the CUSTOMER.
29. Time for Bringing Claims. Any claim by CUSTOMER against OMIGA SOLUTIONS, arising
from or in connection with the Agreement or any related purchase order cannot be
filed, made or maintained unless filed within six (6) years after OMIGA SOLUTIONS, has
provided the Services in question.
30. No Third -Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their
respective successors and permitted assigns and nothing herein, express or implied, is
intended to or shall confer on any other person any legal or equitable right, benefit, or
remedy of any nature under or by reason of this Agreement.
31. Counterparts. This Agreement may be executed in several counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument. This Amendment shall be considered properly
executed by a Party if executed by that Party and transmitted by facsimiie or other
electronic means including, without limitation, DocuSign, Tagged Image Format Files
(TIFF), or Portabie Document Format (PDF).
32. Entire Agreement. These terms and conditions along with the Offer constitute the
entire agreement between the parties as to the sale Services and supersede all prior or
current written or oral statements, representations, negotiations, agreements and
understandings.
Authorized Signature
Name: Mark W. Meyer
Title: President
Date: 12/22/2020
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Authorized Signature.
Name: LaTricia Kinlow
Title: Court Administrator
Date: 12/29/2020
APPROVED AS TO FORM
Office of the City Attorney