HomeMy WebLinkAboutVigilant Solutions LLC; 2020-03-05;Enterprise Service Agreement (ESA)
This Vigilant Solutions Enterprise Service Agreement (the "Agreement") is made and entered into as of
this~y of AA.o.,-<..M--1 20.J.D by and between Vigilant Solutions, LLC, a Delaware company, having its
principal place of business at 1152 Stealth Street, Livermore, CA 94551 ("Vigilant") and City of Carlsbad, a municipal
corporation on behalf of its Police Department, a law enforcement agency (LEA) or other governmental agency, having
its principal place of business at 2560 Orion Way, Carlsbad, CA 92056 ("Affilliate").
WHEREAS, Vigilant designs, develops, licenses and services advanced video analysis software technologies for
security markets;
WHEREAS, Customer will separately purchase License Plate Recognition (LPR) hardware components from
Vigilant and/or its authorized reseller for use with the Software Products (as defined below);
WHEREAS, Customer desires to license from and receive service for the Software Products provided by Vigilant;
THEREFORE, In consideration of the mutual covenants contained herein this Agreement, Customer and Vigilant
hereby agree as follows:
I. Definitions:
"CLK" or "Camera License Key" means an electronic key that will permit each license of Vigilant's CarDetector brand
LPR software (one CLK per camera) to be used with other Vigilant LPR hardware components and Software Products.
"Effective Date" means the date set forth in the first paragraph of this Agreement.
"Enterprise License" means a non-exclusive, non-transferable license to install and operate the Software Products, on
any applicable media, without quantity or limitation. This Enterprise Service Agreement allows Customer to install the
Software Products on an unlimited number of devices in accordance with the selected Service Package, and allow
benefits of all rights granted hereunder this Agreement.
"LPR Data" refers to LPR data collected by the Customer and available on Client Portal for use by the Customer.
"Service Fee" means the amount due from Customer prior to the renewal of this Agreement as consideration for the
continued use of the Software Products and Service Package benefits according to Section VIII of this Agreement.
"Service Package" means the Customer designated service option which defines the extent of use of the Software
Products, in conjunction with any service and/or benefits therein granted as rights hereunder this Agreement.
"Service Period" has the meaning set forth in Section Ill (A) of this Agreement.
"Software Products" means Vigilant's Software Suite including CarDetector, Client Portal, Target Alert Service (TAS)
server/client alerting package, and other software applications considered by Vigilant to be applicable for the benefit
of security practices.
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"Technical Support Agents" means Customer's staff person specified in the Contact Information Worksheet of this
Agreement responsible for administering the Software Products and acting as Customer's Software Products support
contact.
"User License" means a non-exclusive, non-transferable license to install and operate the Software Products, on any
applicable media, limited to a single licensee.
"Users" refers to individuals who are agents of the Customer and who are authorized by the Customer to access Client
Portal on behalf of Customer through login credentials provided by Customer.
II. Enterprise License Grant; Duplication and Distribution Rights:
Subject to the terms and conditions of this Agreement, Vigilant hereby grants Customer an Enterprise License to the
Software Products for the Term provided in Section Ill below. Except as expressly permitted by this Agreement,
Customer or any third party acting on behalf of Customer shall not copy, modify, distribute, loan, lease, resell,
sublicense or otherwise transfer any right in the Software Products. Except as expressly permitted by this Agreement,
no other rights are granted by implication, estoppels or otherwise. Customer shall not eliminate, bypass, or in any way
alter the copyright screen (also known as the "splash" screen) that may appear when Software Products are first started
on any computer. Any use or redistribution of Software Products in a manner not explicitly stated in this Agreement,
or not agreed to in writing by Vigilant, is strictly prohibited.
Ill. Term; Termination.
A. Term. The initial term of this Agreement is for one (1) year beginning on the Effective Date (the "Initial
Term"), unless earlier terminated as provided herein. Sixty (60) days prior to the expiration of the Initial Term and each
subsequent Service Period, Vigilant will provide Customer with an invoice for the Service Fee due for the subsequent
twelve (12) month period (each such period, a "Service Period"). This Agreement and the Enterprise License granted
under this Agreement will be extended for a Service Period upon Customer's payment of that Service Period's Service
Fee, which is due 30 days prior to the expiration of the Initial Term or the existing Service Period, as the case may be.
Pursuant to Section XIII below, Customer may also pay in advance for more than one Service Period.
B. Customer Termination. Customer may terminate this Agreement at any time by notifying Vigilant of
the termination in writing thirty (30) days prior to the termination date, and deleting all copies of the Software
Products. If Customer terminates this Agreement prior to the end of the Initial Term, Vigilant will not refund or prorate
any license fees, nor will it reduce or waive any license fees still owed to Vigilant by Customer. Upon termination of
the Enterprise License, Customer shall immediately cease any further use of Software Products. Customer may also
terminate this agreement by not paying an invoice for a subsequent year's Service Fee within sixty (60) days of invoice
issue date.
C. Vigilant Termination. Vigilant has the right to terminate this Agreement by providing thirty (30) days
written notice to Customer. If Vigilant's termination notice is based on an alleged breach by Customer, then Customer
shall have thirty (30) days from the date of its receipt of Vigilant's notice of termination, which shall set forth in detail
Customer's purported breach of this Agreement, to cure the alleged breach. If within thirty {30) days of written notice
of violation from Vigilant Customer has not reasonably cured the described breach of this Agreement, Customer shall
immediately discontinue all use of Software Products and certify to Vigilant that it has returned or destroyed all copies
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of Software Products in its possession or control. If Vigilant terminates this Agreement prior to the end of a Service
Period for no reason, and not based on Customer's failure to cure the breach of a material term or condition of this
Agreement, Vigilant shall refund to Customer an amount calculated by multiplying the total amount of Service Fees
paid by Customer for the then-current Service Period by the percentage resulting from dividing the number of days
remaining in the then-current Service Period, by 365.
IV. Warranty and Disclaimer; Infringement Protection; Use of Software Products Interface.
A. Warranty and Disclaimer. Vigilant warrants that the Software Products will be free from all Significant
Defects (as defined below) during the lesser of the term of this Agreement (the "Warranty Period") or one year.
"Significant Defect" means a defect in a Software Product that impedes the primary function of the Software Product.
This warranty does not include products not manufactured by Vigilant. Vigilant will repair or replace any Software
Product with a Significant Defect during the Warranty Period; provided, however, if Vigilant cannot substantially correct
a Significant Defect in a commercially reasonable manner, Customer may terminate this Agreement and Vigilant shall
refund to Customer an amount calculated by multiplying the total amount of Service Fees paid by Customer for the
then-current Service Period by the percentage resulting from dividing the number of days remaining in the then-current
Service Period, by 365. The foregoing remedies are Customer's exclusive remedy for defects in the Software Product.
Vigilant shall not be responsible for labor charges for removal or reinstallation of defective software, charges for
transportation, shipping or handling loss, unless such charges are due to Vigilant's gross negligence or intentional
misconduct. Vigilant disclaims all warranties, expressed or implied, including but not limited to implied warranties of
merchantability and fitness for a particular purpose. In no event shall Vigilant be liable for any damages whatsoever
arising out of the use of, or inability to use, the Software Products.
B. Infringement Protection. If an infringement claim is made against Customer by a third-party in a court
of competent jurisdiction regarding Customer's use of any of the Software Products, Vigilant shall indemnify Customer,
and assume all legal responsibility and costs to contest any such claim. If Customer's use of any portion of the Software
Products or documentation provided to Customer by Vigilant in connection with the Software Products is enjoined by
a court of competent jurisdiction, Vigilant shall do one of the following at its option and expense within sixty (60) days
of such enjoinment: (1) Procure for Customer the right to use such infringing portion; (2) replace such infringing portion
with a non-infringing portion providing equivalent functionality; or (3) modify the infringing portion so as to eliminate
the infringement while providing equivalent functionality.
C. Use of Software Products Interface. Under certain circumstances, it may be dangerous to operate a
moving vehicle while attempting to operate a touch screen or laptop screen and any of their applications. It is agreed
by Customer that Customer's users will be instructed to only utilize the interface to the Software Products at times
when it is safe to do so. Vigilant is not liable for any accident caused by a result of distraction such as from viewing the
screen while operating a moving vehicle.
V. Software Support, Warranty and Maintenance.
Customer will receive technical support by submitting a support ticket to Vigilant's company support website or by
sending an email to Vigilant's support team. Updates, patches and bug fixes of the Software Products will be made
available to Customer at no additional charge, although charges may be assessed if the Software Product is requested
to be delivered on physical media. Vigilant will provide Software Products support to Customer's Technical Support
Agents through e-mail, fax and telephone.
VI. Camera License Keys (CLKs).
Customer is entitled to use of the Software Products during the term of this Agreement to set up and install the
Software Products on an unlimited number of media centers within Customer's network in accordance with selected
Service Options. As Customer installs additional units of the Software Products and connects them to LPR cameras,
Customer is required to obtain a Camera License Key (CLK) for each camera installed and considered in active service.
A CLK can be obtained by Customer by going to Vigilant's company support website and completing the online request
form to Vigilant technical support staff. Within two (2) business days of Customer's application for a CLK, Customer's
Technical Support Agent will receive the requested CLK that is set to expire on the last day of the Initial Term or the
then-current Service Period, as the case may be.
VII. Ownership of Software.
A. Ownership of Software Products. The Software Products are copyrighted by Vigilant and remain the
property of Vigilant. The license granted under this Agreement is not a sale of the Software Products or any copy.
Customer owns the physical media on which the Software Products are installed, but Vigilant retains title and
ownership of the Software Products and all other materials included as part of the Software Products.
B. Rights in Software Products. Vigilant represents and warrants that: (1) it has title to the Software and
the authority to grant license to use the Software Products; (2) it has the corporate power and authority and the legal
right to grant the licenses contemplated by this Agreement; and (3) it has not and will not enter into agreements and
will not take or fail to take action that causes its legal right or ability to grant such licenses to be restricted.
VIII. Data Sharing.
Vigilant will not share any LPR Data generated by the Customer without the permission of the Customer.
IX. Ownership of LPR Data.
Customer retains all rights to LPR Data generated by the Customer. Should Customer terminate agreement with
Vigilant, a copy of all LPR Data generated by the Customer will be created and provided to the Customer. After the
copy is created, all LPR Data generated by the Customer will be deleted from Client Portal at the written request of an
authorized representative of the Customer.
XI. Data Retention.
LPR Data is governed by the Customer's retention policy. LPR Data that reaches its expiration date will be deleted from
Client Portal.
XII. Account Access.
A. Eligibility. Customer shall only authorize individuals who satisfy the eligibility requirements of "Users"
to access Client Portal. Vigilant in its sole discretion may deny access to Client Portal to any individual based on such
person's failure to satisfy such eligibility requirements. User logins are restricted to employees of the Customer. No
User logins may be provided to non-employees of the Customer without the express written consent of Vigilant.
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B. Security. Customer shall be responsible for assigning an Site Manager who in turn will be responsible
for assigning to each of Customer's Users a username and password (one per user account). A limited number of User
accounts is provided. Customer will cause the Users to maintain username and password credentials confidential and
will prevent use of such username and password credentials by any unauthorized person(s). Customer shall notify
Vigilant immediately if Customer believes the password of any of its Users has, or may have, been obtained or used by
any unauthorized person(s). In addition, Customer must notify Vigilant immediately if Customer becomes aware of
any other breach or attempted breach of the security of any of its Users' accounts.
XIII. Service Package, Fees and Payment Provisions.
A. Service Package. This Enterprise License Agreement is based on the following Service Package:
Service Package -Basic LPR Service Package:
• Vigilant Managed/Hosted LPR server Client Portal Account
• Access to all Vigilant Software including all upgrades and updates
• Unlimited user licensing for the following applications:
o Client Portal, CarDetector and TAS
B. Service Fees. Payment of each Service Fee entitles Customer to all rights granted under this Agreement,
including without limitation, use of the Software Products for the relevant Service Period, replacement of CLKs, and
access to the updates and releases of the Software Products and associated equipment driver software to allow the
Software Products to remain current and enable the best possible performance. The annual Service Fee due for a
particular Service Period is based on the Annual Service Fee schedules below:
Annual Service Fee Schedule (multiplied by number of CLKs issued)
Total# of CLK's under this ESA II 0-14 CLKs II 15-30 CLKs II 31-60 CLKs II Over 60 CLKs
Basic Service II $525.00 II $450.00 II $400.00 II $275.00
I Annual Parking Fee Schedule I
DI Parking Enforcement System Toolkit II $1,000.00 per system ID
DI Parking Integration II $1,000.00 ID
Payment of the Service Fee is due thirty (30) days prior to the renewal of the then-current Service Period. All Service
Fees are exclusive of any sales, use, value-added or other federal, state or local taxes (excluding taxes based on
Vigilant's net income) and Customer agrees to pay any such tax. Service Fees may increase by no higher than 4% per
year for years after the first year of this agreement.
C. Advanced Service Fee Payments. Vigilant will accept advanced Service Fee payment on a case by case
basis. If Customer makes advanced Service Fee payments to Vigilant, advanced payments to Vigilant will be applied in
full to each subsequent Service Period's Service Fees until the balance of the credits is reduced to a zero balance.
System based advanced credits shall be applied to subsequent Service Fees in the amount that entitles Customer
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continued operation of the designated camera unit systems for the following Service Period until the credits are
reduced to a zero balance.
D. Price Adjustment. Vigilant has the right to increase or decrease the annual Service Fee from one Service
Period to another; provided, however, that in no event will a Service Fee be increased by more than the greater of 4%
of the prior Service Period's Service Fees. If Vigilant intends to adjust the Service Fee for a subsequent Service Period,
it must give Customer notice of the proposed increase on or before the date that Vigilant invoices Customer for the
upcoming Service Period.
XIV. Miscellaneous.
A. Limitation of Liability. IN NO EVENT SHALL VIGILANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL DAMAGES INCLUDING DAMAGES FOR LOSS OF USE, DATA OR PROFIT, ARISING OUT OF OR
CONNECTED WITH THE USE OF THE SOFTWARE PRODUCTS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, EVEN IF VIGILANT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT
WILL VIGILANT'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER
TO VIGILANT FOR THE SOFTWARE PRODUCTS LICENSED UNDER THIS AGREEMENT.
B. Confidentiality. Customer acknowledges that Software Products contain valuable and proprietary
information of Vigilant and Customer will not disassemble, decompile or reverse engineer any Software Products to
gain access to confidential information of Vigilant.
C. Assignment. Neither Vigilant nor Customer is permitted to assign this Agreement without the prior
written consent of the other party. Any attempted assignment without written consent is void.
D. Amendment; Choice of Law. No amendment or modification of this Agreement shall be effective
unless in writing and signed by authorized representatives of the parties. This Agreement shall be governed by the laws
of the state of California without regard to its conflicts of law.
E. Complete Agreement. This Agreement constitutes the final and complete agreement between the
parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, written
or oral, with respect to such subject matter.
F. Relationship. The relationship created hereby is that of contractor and customer and of licensor and
Customer. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship between
the parties hereto. Neither party shall have any authority to enter into agreements of any kind on behalf of the other
and shall have no power or authority to bind or obligate the other in any manner to any third party. The employees or
agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose
whatsoever. Each party hereto represents that it is acting on its own behalf and is not acting as an agent for or on
behalf of any third party.
G. No Rights in Third Parties. This agreement is entered into for the sole benefit of Vigilant and Customer
and their permitted successors, executors, representatives, administrators and assigns. Nothing in this Agreement shall
be construed as giving any benefits, rights, remedies or claims to any other person, firm, corporation or other entity,
including, without limitation, the general public or any member thereof, or to authorize anyone not a party to this
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Agreement to maintain a suit for personal injuries, property damage, or any other relief in law or equity in connection
with this Agreement.
H. Construction. The headings used in this Agreement are for convenience and ease of reference only,
and do not define, limit, augment, or describe the scope, content or intent of this Agreement. Any term referencing
time, days or period for performance shall be deemed calendar days and not business days, unless otherwise expressly
provided herein.
I. Severability. If any provision of this Agreement shall for any reason be held to be invalid, illegal,
unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this
Agreement, such provision shall be construed so as to make it enforceable to the greatest extent permitted, such
provision shall remain in effect to the greatest extent permitted and the remaining provisions of this Agreement shall
remain in full force and effect.
J. Federal Government. Any use, copy or disclosure of Software Products by the U.S. Government is
subject to restrictions as set forth in this Agreement and as provided by DFARS 227.7202-l(a) and 227.7202-3(a) (1995),
DFARS 252.227-7013(c)(l)(ii) (Oct 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227 (ALT Ill), as applicable.
K. Right to Audit. Customer, upon thirty (30) days advanced written request to Vigilant, shall have the
right to investigate, examine, and audit any and all necessary non-financial books, papers, documents, records and
personnel that pertain to this Agreement and any other Sub Agreements.
L. Notices; Authorized Representatives; Technical Support Agents. All notices, requests, demands, or
other communications required or permitted to be given hereunder must be in writing and must be addressed to the
parties at their respective addresses set forth below and shall be deemed to have been duly given when (a) delivered
in person; (b) sent by facsimile transmission indicating receipt at the facsimile number where sent; (c) one (1) business
day after being deposited with a reputable overnight air courier service; or (d) three (3) business days after being
deposited with the United States Postal Service, for delivery by certified or registered mail, postage pre-paid and return
receipt requested. All notices and communications regarding default or termination of this Agreement shall be
delivered by hand or sent by certified mail, postage pre-paid and return receipt requested. Either party may from time
to time change the notice address set forth below by delivering 30 days advance notice to the other party in accordance
with this section setting forth the new address and the date on which it will become effective.
Vigilant Solutions, LLC
Attn: Sales Administration
1152 Stealth Street
Livermore, CA 94551
City: Carlsbad Police Department
Attn: Cindy Anderson
Address: 2560 Orion Way
Carlsbad, CA 92010
M. Authorized Representatives; Technical Support Agents. Customer's Authorized Representatives and
its Technical Support Agents are set forth below (Last Page). Customer's Authorized Representative is responsible for
administering this Agreement and Customer's Technical Support Agents are responsible for administering the Software
Products and acting as Customer's Software Products support contact. Either party may from time to time change its
Authorized Representative, and Customer may from time to time change its Technical Support Agents, in each case, by
delivering 30 days advance notice to the other party in accordance with the notice provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the Effective Date.
Manufacturer: Vigilant Solutions, LLC
Authorized Agent: Bill Quinlan
Title: Vice President Sales Operations
Date: z.-/9--z,oz~
Signature:
City Organization: City of Carlsbad, a Municipal Corporation
Authorized Agent: Scott Chadwick
Title:
Date:
Signature:
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
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w;11ti!r Ch1,1ns
Assistant City Attorney
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Enterprise Service Agreement
Contact Information Worksheet
Please complete the following contact information for your Vigilant Solutions Enterprise License program.
Enterprise License Agreement Holder
Company Name: City of Carlsbad
Company Type: Municipal Corporation
Address:
Primary Contact
Name: Cindy Anderson
Title: Senior Management Analyst I Phone: I 760-931-2170
Email: Cindy.Anderson@carlsbadca.gov
Supervisor Information
Name: Neil Gallucci
Title: Police Chief I Phone: J 760-931-2130
Email: Neil.Gallucci@carlsbadca.gov
Financial Contact (Accounts Payable)
Name: Roxanne Muhlmeister
Title: Finance Manager I Phone: I 760-602-2417
Email: Roxanne.Muhlmeister@carlsbadca.gov.
Technical Support Contact# 1
Name: Javier Ruiz
Title: Public Safety IT Manager J Phone: I 760-931-2176
Email: Javier.Ruiz@carlsbadca.gov
Technical Support Contact# 2
Name:
Title: I Phone: I
Email:
For questions or concerns, please contact Vigilant Solutions' sales team:
sales@vigilantsolutions.com
1-925-398-2079