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BLUE
Gilroy Ponce Department Affiliate Licensing Agreement
Blue Archer Graffiti Tracking System - GTS
rAlk, M PAtkl
Prepared By: Blue Archer Contact:
Joe Papp 412.353.0636
jpapp@bluearcher.com
Initial 7AI- Initial
Date:
03.10.2008
Version ?
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LUE
ARCHER
CAffiliate Agreement
Blue Archer, Inc., a corporation hereby grants to the City of Gilroy (Gilroy) GILROY a user license
to access a currently installed version of Blue Archer's Graffiti Tracking System. Specifically, upon
execution of this agreement and upon completion of the San Jose GTS implementation, timeline TBD,
GILROY will be granted access to the GTS of San Jose Police Department with URL: TBA.
This agreement provides for use of the San Jose Police Department GTS. This agreement does not
provide any new or modified warranties to either San Jose Police Department or GILROY.
By executing this agreement, GILROY acknowledges and understands that San Jose Police
Department may invite other agencies to become GTS affiliates and give them access to the same
primary GTS application that GILROY will access, thereby making visible to these othar
authorized agencies the GTS incident records created by GILROY within the system.
It is the intent of Blue Archer, Inc. to provide and warrant the services listed in the Statement of Work
section of this Agreement.
It is the intent of this Agreement that the GILROY will receive services rendered by Blue Archer, Inc. and
pay for them in a timely manner.
CON, Statement of Work
PSyii sint Tarim, a Hosting g Sto atild Space
GILROY shall pay an "affiliate licensing fee" of $600, yearly, and may be renewed annually by GILROY.
Payment in full of first invoice is due upon execution of this agreement by the City of Gilroy. The 12 -month
hosting cycle begins on July 1 in conjunction with start of GILROY's fiscal year. The first invoice
associated with this statement of work will be for a pro -rated amount relative to the remaining number of
days before the end of GILROY's current fiscal year.
The affiliate licensing fee shall cover the cost of application data hosting and provide for up to 250Mb of
data storage. Supplemental storage capacity, in 250Mb increments, shall be available per the yearly
terms outlined below:
Yearly $
Monthly $
Space for Approximately
this many Incident
Photos
Equates to Approximately
this many Incident
Records
Actual Storage Space
Available
$600
$59
7500
2,500
250mb
$1200
$119
15000
5,000
500mb
$1800
1 $179
1 22500
1 7,500
1 750mb
$2400
1 $239
1 30000
1 10,000
1 1 Gb
There is no yearly accumulation of storage space, and affiliate licensing fee entitles affiliate to use of a
fixed amount of storage space. If additional storage space is needed, affiliate will have option of renting
additional storage space.
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BLUE
ARCHER
Cancellation Tarns
Yearly affiliate licensing fees are nonrefundable. GILROY may choose to terminate this agreement at any
time. Upon termination, GILROY's responsibility to pay its affiliate licensing fee shall terminate. No
hosting fees will be refunded or paid back to GILROY based on Gilroy s early termination of any 12 month
hosting contract.
CA General Terms & Conditions & Hosting Agreement
Ganaiial Terms & Conditions
1. Effective Date. This agreement is made as of the date set forth below by and between
Blue Archer, Inc., a corporation ( "Blue Archer, Inc. ") and the City of Gilroy, a California
Municipal Corporation ( "GILROY ")
Tt e ,-elati^nship of Slua Archer, Inc. to GILROY is one of a�+
independent contractor a; d nothing in this Agr emer it ahall be constj -ued o irnpl,, that. Clue Archer. or
its employees are agents .z;• srnpin ; -aes cf GILROY, for any purpose, it -nuti og, but net iim'ted to,
withhold? g of social sacurity or state andlor edsra! income tax e¢ entitleme -u :o employee barefits cif
GILR%CY. 3!ue Archer, Inc. viii' oe s% .el; responsible for payment of am,, and all taxes and insurance,
irc5 uding worKer, > corrpensaboo, for its 3-rp!oyees who perform any Ser ices pursuant to :his Agreement.
GILROY will own grapNcs, text and other
G!LRC *, reia+:a „content. Cede for the graffiti trac'<irg system, GTa is the properly )° Blue Archer, inc.
GTS :root-- m;�s� remain on 31ve rcl ° ^r, Iro. approved servers. GILROY agrees not to re-market or
otherthl r-;' distributa gratfid tr c!dri^ syslern i TS), developed specitically for and use t;, +oe" tote terms of
this agreement. N ✓ersion upgrades are riot ma,-,datory. Version Upgrades may be regwfed once every Wvc,
years cr `o the most current version of :3TS in order for GILROY to rsoeive prodi.ict technical support.
Version �:pgrades ;�,r current Gilroy s are capped at a maximum of $1,000 for a single version upgrade.
.. Irtte,7wl•dnall�� ti.s'r °it'iet.
Vlarr; itiaz. Blue —her, inc. warrants that, in performing the Se:- vices:
(a) Tie 5ervic3s will reasonably conform to the descriptions set forth in the Proposal
within thirty (30) days of completion of the Services and during the term of this
Agreement. GILROY shall execute a Certification of :acceptance providing,
among other things, that the Services furnished by glue Archer, Inc. hereunder
are in accordance with the Proposal and accep-1:able to GILROY.
(b) Blue Archer, Inc. will transfer or assigit io GILROY any available and
assignable product warranties of manufacturers and /or suppliers for any
equipment nr product purchased by GILROY ano furnished by Blue archer, Inc.
pursuant to this Agreement. Blue Archer, Inc. makes no warranties concerning
equipment or product supplied to GILROY under this Agreement, and all product
and equipment furnished by Blue Archer, Inc. is on an ' as is" basis. The products
sold by Blue Archer, Inc. are subject to certain warranties that may be offered by
the respective manufacturers of such items, As Blue Archer, Inc. is not a
manufacturer, Blue ,'archer, Inc. does not offer any independent warranties on
items that are purchased from Blue Archer, Inc. IN NO EVENT SHALL BLUE
ARCHER, INC. BE LIABLE FOR ANY LOST PROFITS OR SALES OF GILROY,
17� A D C ARCHER, I�IC 'S LIABILITY UNDER ANY THEORY OF LAX-11 SHALL
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BLUE
ARCHER
NOT EXCEED THE AMOUNTS RECEIVED BY BLUE ARCHER, INC. FROM
GILROY PURSUANT TO THIS AGREEMENT.
(c) Website and hosting performance shall sustain performance levels equal to or
greater than other commercial service providers at all times during the term of
this agreement.
5. Liability. Blue Archer, Inc.'s entire liability and GILROY's exclusive remedy for damages
from any cause or source whatsoever, including, but not limited to, nonperformance or misrepresentation,
and regardless of the form of action, shall be limited to a refund of the price paid by GILROY for the
specific products or services that caused the damages or claims that are the subject matter of, or
indirectly related to, the cause of action. In no event will Blue Archer, Inc. be liable for damages caused
by GILROY's negligence, or for any lost profits, lost savings or other incidental or consequential
damages, even if Blue Archer, Inc. has been advised of the possibility of such damages, or for any claim
against GILROY by any other party.
(a) Website and hosting performance shall sustain performance levels equal to or
greater than other commercial service providers at all times during the term of
this agreement. Blue Archer, Inc. is not responsible for internet connectivity or
other issues outside the control of Blue Archer, Inc. that prevents access to the
GTS application including failure of upstream connectivity providers or general
internet cloud failures.
7. Termination.
(a) Without Cau3s. Either party may terminate this Agreement with 30 days of prior
written notice to the other. No refunds will be provided to GILROY in the event of
Gilroy s early cancellation of this agreement.
(b) Default. In the event all sums due pursuant to this Agreement are not paid as
set forth herein, Blue Archer, Inc. shall have option to terminate this Agreement
upon 30 days prior written notice to GILROY.
(c) 4ct of lingolvency. Blue Archer, Inc. shall have the option to terminate this
Agreement by written notice to GILROY and to regard the GILROY as being in
material default of this Agreement, if GILROY becomes insolvent, makes a
general assignment for the benefit of creditors, files a voluntary petition for
bankruptcy, suffers or permits the appointment of a receiver for its business or
assets, or becomes subject to any proceeding under any bankruptcy or
insolvency law, whether domestic or foreign, or has wound up its business or
liquidated, voluntarily or otherwise. In the event that any of the above events
occurs, GILROY shall immediately notify Blue Archer, Inc. in writing of such
occurrence.
(d) Force Majeure; Suspension and Termination. In the event that either party is
unable to perform any of its obligations under this Agreement, or to enjoy any of
its benefits because of (or failure to perform the Services is caused by) natural
disaster, actions or decrees of governmental bodies or communication line
failure, or any inability to perform which is not the failure of the affected party
(hereinafter referred to as a "Force Majeure Event "), the party who has been so
affected shall immediately give notice to the other party and shall do everything
possible to resume performance. Upon receipt of such notice, all obligations
under this Agreement shall be immediately suspended. If the period of non-
ce exceeds thirty (30) days from the receipt of notice of the Force
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BLUE
ARCHER
Majeure Event, the party whose ability to perform has not been so affected may
terminate this Agreement, by giving written notice to the other party.
(e) ffigt11 and gb anon of the Parties on Termination. Upon termination of
this Agreement based on a material breach or default by GILROY, Blue Archer,
Inc. shall be entitled to retain payments received to date of default or breach, as
well as retain (including a demand to GILROY for return of) all data, manuals,
materials, equipment and other items provided to GILROY as part of the Services
under this Agreement, which have not been fully paid for by GILROY at the time
of termination and, in addition, shall have all other legal rights and remedies
available as a result of such breach.
8. gonfidential endro,iakar�1 fnforrna9onatblict�!.
(a) Confidential and Proprietary Information. GILROY acknowledges and agrees
that any and all information concerning Blue Archer, Inc. business disclosed in
the course of performance of the Services under this Agreement is "Confidential
and Proprietary Information ", and GILROY agrees that it will not permit the
duplication, use or disclosure of any such Confidential and Proprietary
Information to any person (other than its own employee, agent or representative
who must have such information for the performance of services hereunder),
unless such duplication, use or disclosure is specifically authorized in advance in
writing by Blue Archer, Inc. or IS required by any provision of federal, state or
local law or court order. "Confidential and Proprietary Information' is not meant
to include any information which, at the time of disclosure, is generally known by
the public or any competitors of GILROY or Blue Archer, Inc.
(b) Publicity; Trademarks. Neither party shall use the name(s), trademark(s) or trade
name(s) (whether registered or not), of the other party in publicity releases or
advertising or in any other manner, including GILROY lists, without securing the
prior written approval of the other party.
S. Indemnification. The parties understand that the website that is the subject of this
Agreement will contain intellectual property to be furnished by GILROY (for example, but without
limitation, graphics, photographs and certain text) and intellectual property to be furnished by Blue Archer
(for example, but without limitation, layouts, designs and programming). It is the intention and
understanding of the parties that each of them separately warrants that it has the right to furnish, for the
uses contemplated in this Agreement, the materials, labor, methods and intellectual property in fact
furnished by such party. Thus, GILROY agrees to indemnify and hold Blue Archer harmless against all
liability to third parties arising from or in connection with the violation of any third party's trade secrets,
proprietary information, trademarks, copyright, or patent rights caused by intellectual property furnished
by GILROY for inclusion in the website. Blue Archer agrees to indemnify and hold GILROY harmless
against all liability to third parties arising from or in connection with the violation of any third party's trade
secrets, proprietary information, trademarks, copyright, or patent rights caused by intellectual property
furnished by Blue Archer in furtherance of this Agreement.
10. Taxes. GILROY shall be responsible for the payment of all taxes imposed in connection
with or as a result of this Agreement other than taxes based on Blue Archer's income. Blue Archer agrees
to promptly provide GILROY with any notices, correspondence or other information received by Blue
Archer applicable to GILROY's obligations under this Section 10 when, and if, received by Blue Archer.
11. Assignment. Blue Archer, Inc. may use qualified temporary help, subcontractors, or
other consultant staff to assist in performance of its obligations under this Agreement.
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California.
BLUE
ARCHER
2. A�_oplicableLaw. This Agreement shall be governed by the laws of the State of
'13. 4iscail qr:- A—Pv4.
(a) Rernedlas. All remedies available to either party for breach of this Agreement
are cumulative and may be exercised concurrently or separately, and the
exercise of any one remedy shall not be deemed an election of such remedy to
the exclusion of other remedies.
(b) � odcas. Notice shall be given to the parties at their respective address as
stated herein, either by personal delivery or by First Class United States Mail,
postage prepaid. Notice shall be deemed received three (3) days after date of
mailing, if sent by First Class United States Mail, or on the date of actual receipt,
if hand delivered.
(c) 'hives. No term or provision hereof shall be deemed waived and no breach
excused unless such waiver or consent shall be in writing and signed by the
party claimed to have waived or consented.
(d) Sits of w aervlcas. If Blue Archer, Inc.'s services are performed at GILROY's
ffi
oces, GILROY shall provide office space and facilities to Blue Archer, Inc.'s
staff commensurate with that provided to its own employees to the extent
necessary to perform the Services.
(e) M®41fications. If the GILROY requests in writing any modification of the
Services, Blue Archer, Inc. may perform such services at its sole discretion. If
Blue Archer, Inc. so performs, GILROY agrees that Blue Archer, Inc. may expend
the time Blue Archer, Inc. deems reasonable and necessary to perform the
modified Services and the charges for such modified Services shall be on a time
and materials basis at Blue Archer, Inc.'s hourly rates and charges then in effect,
unless otherwise agreed to in writing by the parties.
(f) Prior Negotiations. This Agreement constitutes the entire understanding of the
parties and supersedes any and all prior or contemporaneous representations or
agreements, written or oral, by the parties, and cannot be changed or modified
unless in writing signed by the parties.
(g) Severabil. If any part of this Agreement is found to be in violation of any law
or is found to be otherwise unenforceable, this Agreement shall be construed and
interpreted without reference to such part.
(h) Attorney's Fees. In the event that either party commences a proceeding to
construe or determine the rights and obligations of the parties pursuant to this
Agreement, or a breach thereof, the prevailing party shall be entitled to recover
from the other party all reasonable attorney's fees and expenses incurred in
obtaining a declaration or enforcement of rights and obligations or determining a
breach by the other party under this Agreement.
(i) IillinnPeriodicity and Late fees. All payments not received within 30 days of
date of receipt of invoice are subject to late fees of 1%, due upon the first day
the payment becomes delinquent, unless other arrangements are made in writing
and agreed to by GILROY and Blue Archer, Inc. Exceptions to this section
inclu osting invoices that are generated according to a monthly plan. Monthly
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ARCHER
hosting Claris require sirs,' and lost month hosting fee upon i(iitiai i;ivcicc; irr`,ioice
term;; are due upon recetot.
Cl) Entire Agraement. This Agreement constitutes the entire agreement and
understanding of the parties, whether oral or written, relating to the subject
matter hereof and is intended as the parties' final expression and exclusive
statement of the terms hereof, superseding all prior or contemporaneous
agreements, representations, communications, promises and understandings,
whether written or oral; and may be amended or modified only by an instrument
in writing signed by both parties.
MA Specific Terms & Conditions
14. Term. GILROY agrees, and understands, that the term (or cycle) in which Blue Archer,
Inc. will provide services is twelve (12) months from the date of signed agreement. Service will continue
automatically at the end of each term for an additional term of twelve (12) months unless GILROY notifies
Blue Archer, Inc. in writing no later than thirty (30) days prior to the end of a term.
The above - referenced 12 -month hosting cycle begins on July 1 in conjunction with start of
GILROY's fiscal year. The first invoice associated with this statement of work will be for a pro -rated
amount relative to the remaining number of days before the end of GILROY's current fiscal year. The
second invoice will be for a full 12 -month hosting period and will be issued prior to July 1.
15. Payment. GILROY agrees, and understands, that hosting and payment, is billed
with Net 30 terms each year, with the exception of first invoice's hosting fees, which are due prior to
system access. GILROY also understands that if payment is not received when due, access to their
site /server, may be temporarily interrupted until payment is made in full. GILROY agrees, and
understands, that should they not be able to pay within that time, that they shall either in written form, or
verbally, inform Blue Archer, Inc. immediately, should such an event occur. GILROY agrees, and
understands, that failure to make payment within the above stated time period, or without making
arrangements to pay on GILROY's account prior to the due date, may automatically cause GILROY's
account to be due in advance each month.
15. Liability. GILROY agrees, and understands, that Blue Archer, Inc. shall not be
liable or responsible for misuse of service by GILROY's employees and /or agents, or for consequential,
special, or incidental damages. GILROY agrees, and understands, that Blue Archer, Inc. shall not be
liable for damages, or loss of revenue, due to GILROY's misuse, accidental damage, mechanical failure,
and /or acts of God. Further, Customer agrees and understands that all disputes of this Agreement must
be governed by the conditions in the General Terms & Conditions of this Agreement.
.7. Notices. Any notices, requests, demands or other communications provided for by
this Agreement shall be in writing and made by hand delivery in person, or mailed through US Postal
Service, or by overnight mail by a reliable overnight delivery and addressed according to the information
supplied for both Blue Archer, Inc., and Customer within the " GILROY Acceptance" section of this
document.
18. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties, whether oral or written, relating to the subject matter hereof and is intended
as the parties' final expression and exclusive statement of the terms hereof, superseding all prior or
contemporaneous agreements, representations, communications, promises and understandings, whether
written or oral; and may be am nded or modified only by an instrument in writing signed by both parties.
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MARCHER
This proposal, when executed by both parties shall constitute a legally binding commitment of the
parties.
Cl o Gilroy, lif nia M nicipal Corporation
A
By:
Name:An a ,latc
Title: Acting City istr t r
Date:
P.Q. # (if applicable):
APPROVED AS TO FORM
Linda A. Gallon, City Attorney
ATTEST
Shawna Freels, City Clerk
Blue Archer, Inc.
735 Copeland Street
3'd Floor
Pittsburgh, PA 15232
Authorized Blue Archer, Inc. Principal Signature:
By:
Name: Robert Faletti or Al Polanec
Title: Principal
Date: &2
Contact
Gilroy Police Department
ATTN: Debra Moore
7351 Rosanna Street
Gilroy, CA 95020
(408) 846 -0400
debra.moore@ci.gUzoy.ca.us
ht.tp: / /www.ci.gilroy.ca.us /police/
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