HomeMy WebLinkAboutFirst Arriving - Digital Dashboard to Display at Stations HeadquartersMaster Services &Service Level Agreements
1)CONTRACT STRUCTURE &ORDER-OF-PRECEDENCE
This First Arriving Master Service Agreement (“Agreement”)is entered into between First Arriving,
LLC.DBA First Arriving (“FA”)and the customer (“Customer”)identified on the first order document
signed by both Parties referencing this Agreement (“Order Form”),effective as of the effective date
identified in that Order Form (“Effective Date”).Capitalized terms in this Agreement are defined in
Section 16 (Definitions)and elsewhere in this Agreement.This Agreement and all Order Forms
govern Customer ’s access to and use of FA’s Service,and the SOW governs any Professional
Services FA provides to Customer.“Customer”and “FA”also include such Party’s respective
Affiliates,and Customer and FA may be referred to in this Agreement individually as a “Party”and
collectively as the “Parties.”In the event of any conflicts between this Agreement,any Order Form,
and/or any SOW,the following order-of-precedence applies:SOW take precedence and prevail over
Order Forms solely with respect to the subject matter of SOW;and Order Forms and SOW take
precedence and prevail over this Agreement solely with respect to their respective subject matter.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN FA AND CUSTOMER.
CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF
THIS AGREEMENT BEFORE SIGNING AN ORDER FORM,CLICKING “ACCEPT,”OR ACCESSING
OR USING ANY FA SERVICE.BY SIGNING AN ORDER FORM,OR ACCESSING OR USING ANY
FA SERVICE,CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR
BEEN PROVIDED A COPY OF THIS AGREEMENT,AND HAS READ AND ACCEPTS THIS
AGREEMENT IN ITS ENTIRETY.NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS
CUSTOMER MAY REFERENCE OR PROVIDE,FA’S OFFER OR ACCEPTANCE TO ENTER INTO
AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY FA SERVICE IS EXPRESSLY
LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S
CONSENT TO THIS AGREEMENT.
2)OWNERSHIP OF SERVICE &CUSTOMER DATA
2.1 Ownership of the Service.The Service is the property of FA,and is protected by copyright,patent,
trade secret and other intellectual property laws.FA and its licensors retain any and all rights,title and
interest in and to the Service (including,without limitation,all Intellectual Property Rights),including
all copies,modifications,extensions and derivative works thereof.Customer ’s right to use the Service
is limited to the rights expressly granted in this Agreement and the applicable Order Form(s).All
rights not expressly granted to Customer are reserved and retained by FA and its licensors.
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2.2 Ownership of Customer Data.As between Customer and FA,(a)all Customer Data is the
property of Customer,and (b)Customer retains any and all rights,title and interest in and to the
Customer Data,including all copies,modifications,extensions and derivative works thereof.FA
retains no right or interest in any Customer Data.
3)GRANT OF RIGHTS
Subject to the terms and conditions of this Agreement,FA hereby grants to Customer the
non-exclusive,non-transferable (except as specified in Section 16.2 (Assignment)),worldwide,
royalty-free right to access and use the Service during the Service Term in accordance with the terms
of this Agreement and all applicable Order Form(s)and SOW (e.g.,any transaction volume terms and
limitations to particular Customer legal entities,business units,projects,brands,products and/or
services set forth therein).
4)USE OF SERVICE
4.1 Customer Responsible for User Accounts.Customer is responsible for all activity occurring under
Customer ’s User accounts,and must comply with all applicable laws and regulations in connection
with using the Service.Customer also must (a)notify FA promptly upon becoming aware of any
unauthorized use of any Customer password or account (or any other breach of security of the
Service),and (b)notify FA promptly upon becoming aware of,and stop,any unauthorized copying,
distribution or other misuse of any aspect of the Service.FA will promptly notify the customer of any
breach or unauthorized access of the service.
4.2 Use Restrictions.During the term of this Agreement or any Order Form or SOW,Customer must
not,without FA’s prior written consent,cause or permit the:(a)use,copying,modification,rental,
lease,sublease,sublicense,transfer or other commercial exploitation of,or other third party access
to,any element of the Service,except to the extent expressly permitted by this Agreement;provided
however,that Customer may allow its own customers to access the functionality or output of the
Service,via interfaces,portal applications and the like,solely for Customer ’s internal business
purposes in accordance with the applicable Order Form;(b)creation of any modifications or
derivative works of the Service;(c)reverse engineering of the Service;(d)gaining of unauthorized
access to the Service or its related systems or networks (for example,by impersonation of another
user of the Service or provision of false identity information);(e)interference with or disruption of the
integrity or performance of the Service or the data contained therein (for example,via unauthorized
benchmark testing or penetration testing);(f)sending,storing or use of any Customer Data in
connection with the Service for which Customer lacks sufficient ownership or other rights;(g)sending
of spam or otherwise duplicative or unsolicited messages in violation of applicable law;(h)sending or
storing of infringing,obscene,threatening,libelous,or otherwise unlawful or tortious material in
connection with the Service (including,without limitation,any material violative of third party privacy
rights);or (i)intentionally sending or storing of any material containing any viruses,worms,trojan
horses or other malicious or harmful computer code,files,scripts,agents or programs in connection
with the Service.This provision includes sharing login access to FA Technology or FA supplied
content contained therein.
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4.3 You and Your Authorized Users will need to set up an account and maintain Internet access to
use the Service.You and Your Authorized Users will need Internet access and may need to create or
log into an account to use the Service and FA reserves the right to require that.You agree that you
and Your Authorized Users will not share any user ID or passwords.You agree you will not allow
anyone else to access your account (except as expressly allowed by these Terms)or do anything
else that might jeopardize the security of your account.You will be solely responsible for arranging
and paying any cost for Internet or other network access,equipment,software,services and other
resources required for you to access and/or use the service,including,without limitation,Internet
service provider fees,telecommunications fees,and the costs of any equipment and third-party
software (including,without limitation,encryption and other security technology).FA will not be
responsible for the support of your access and will not be responsible for the reliability,security or
performance of any access if documented technical requirements are not met.
5)PRIVACY,SECURITY,CONTINUITY &SUPPORT
5.1 Compliance with Privacy Laws.FA will use Customer Data in connection with the Service only as
permitted by Privacy Laws and this Agreement;provided,however,that if compliance with any
Privacy Laws would materially change FA’s costs or risks in providing the Service (including,without
limitation,by requiring that any FA data centers be located outside the U.S.,or requiring FA to
operate in violation of any U.S.laws),each Party will have the right to terminate this Agreement
(including all Order Forms and SOW)under Sections 6.2 and 6.5 upon at least thirty (30)days prior
written notice to the other Party,unless Customer and FA agree in writing within such 30-day period
that FA may continue to provide the Service to Customer without complying with the Privacy Laws
giving rise to such material change.In the event of a termination under this section,Customer ’s sole
right,and FA’s sole obligation,will be for FA to promptly refund to Customer on a pro rata basis any
Service Edition Fees prepaid under applicable Order Forms that are unused as of the termination
effective date.
5.2 Security of the Service.FA’s data security program for the Service will:(a)include industry
standard reasonable security measures to protect against unauthorized access to any Customer Data
residing in the Service;(b)comply with PCI DSS;and (c)comply with all laws and regulations
surrounding the Service.FA will not be responsible or liable for any deletion,correction,damage,
destruction or loss of Customer Data that does not arise from a breach by FA of its obligations under
this Agreement,except for FA’s gross negligence or willful misconduct.
5.3 Financial Account Data.For customers using FA’s eCommerce functions and financial services,
all customer credit card data will process using the Authorize.net virtual terminal.Customer will be
provided access to the Authorize.net account and can export customer data at customer ’s discretion.
FA encourages Customer to back-up its Customer Data by exporting it regularly.FA agrees to comply
with all applicable local,state and federal laws and regulations with respect to any and all credit card
processing and invoicing services provided to Customer ’s users during the term of the Agreement in
accordance with any SOW and/or Order Form.
5.4 Business Continuity &Disaster Recovery.FA will maintain and implement throughout the term of
this Agreement business continuity and disaster recovery plans to help ensure availability of the
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Customer Data following any significant interruption or failure of critical business processes or
systems affecting the Service.FA will provide Customer with copies of its business continuity and
disaster recovery plans within 30 days of Customer’s written request.
5.5 Support &Service Level Agreement.FA will provide technical support for the Service in
accordance with Exhibit A to this Agreement (Support and Service Level Agreement)as long as
Customer is entitled to receive support under the applicable Order Form and this Agreement.
6)TERM &TERMINATION
6.1 Term of Agreement.This Agreement will begin on the Effective Date and continue in effect until all
Order Forms and SOW expire or are terminated in accordance with Section 6.5.The agreement for
Dashboard and Website Customers shall automatically renew annually with (30)days notice.
6.2 Effect of Expiration or Termination of Agreement.Sections 1,2,4.2,6.3,6.6,8,9,10,,11.3,12,
13,14,15,and 16 of this Agreement will survive any expiration or termination of this Agreement.The
applicable Order Forms and SOW may identify additional terms that will survive any expiration or
termination of this Agreement.Regardless of the basis for expiration or termination of this Agreement,
FA will not be obligated to retain any Customer Data for longer than ninety (90)days after any such
expiration or termination.
6.3 Term of Order Forms.The term of particular Order Forms will be set forth therein,starting on the
Effective Date specified therein and continuing for the initial term specified therein (“Initial Service
Term”).
6.4 Terminations of Agreement or SOW.Either Party may terminate any Order Forms and/or SOW in
accordance with their respective terms.If not specified in the applicable Order Form or SOW,then
subject to the exclusive remedy provisions in this Agreement:either Party may terminate any Order
Forms or SOW for cause upon written notice if the other Party fails to cure any material breach
thereof within thirty (30)days after receiving reasonably detailed written notice from the other Party
alleging the breach.In the event the software does not function as represented,Customer has the
option to cancel the contract after the first year.Customer must notify FA of the intent to cancel at
least thirty (30)days prior to the end of the contract term.
6.5 Effect of Termination of Order Forms or SOW.If an Order Form or SOW is terminated in
accordance with Section 6.5,all terms of such Order Form or SOW that reasonably should survive
such termination will survive,including,without limitation,Customer ’s payment obligations if FA
terminates for cause.
7)ORDER PROCESS
Customer orders the FA Service via one or more Order Forms,and Customer may also order FA’s
Professional Services via one or more SOW.
7.1 Purchase Orders.If Customer requires that a purchase order (“PO”)be issued before making
payment under an Order Form or SOW,Customer must provide to FA such valid PO conforming to
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the applicable Order Form or SOW in time for Customer to meet its payment obligations.Any
conflicting terms and conditions of any PO are superseded by the rights or obligations of the Parties
outlined in this Agreement or any SOW or Order Form,regardless of any failure to object to such
terms and conditions.
7.2.Modification of Fees Upon Renewal.FA reserves the right to modify the Fees for its Service
under any future Order Forms,effective upon commencement of any renewal Term for the Service on
the relevant Order Form(s),by notifying Customer in writing at least thirty (30)days before the end of
the then-current Service Term.
8)FEES &PAYMENT
8.1 Payment Details.Customer must pay all fees and charges in accordance with this Agreement and
each mutually executed Order Form and SOW (“Fees”).Except to the extent otherwise expressly
stated in this Agreement or in an Order Form or SOW,or as provided by law:
1.All obligations to pay Fees are non-cancelable and all payments are non-refundable;
2.Customer must make all payments without setoffs,withholdings or deductions of any
kind;
3.Customer must pay all Fees due under all Order Forms and SOW within thirty (30)
days after Customer receives each invoice (invoices are deemed received when FA
emails them to Customer ’s designated billing contact);and
4.All payments must be in U.S.dollars.
Except to the extent otherwise expressly stated therein,if an applicable Order Form or SOW provides
for payment via credit card or electronic money transfer (e.g.,ACH),FA is permitted to process such
payment on the date of FA’s invoice.
8.2 Taxes.FA’s Fees are exclusive of all taxes,levies,or duties imposed by taxing authorities in
connection with any Order Forms or SOW.Customer is responsible for paying all such taxes,levies,
or duties,excluding only taxes based solely on FA’s income.If FA has the legal obligation to pay or
collect taxes for which Customer is responsible,the appropriate amount will be invoiced to and paid
by Customer unless Customer provides FA a valid tax exemption certificate authorized by the
appropriate taxing authority.
8.3 Customer Contact Information.Customer agrees to provide FA accurate billing and other contact
information for each Order Form and SOW at all times during the Service Term,including the name of
Customer ’s applicable legal entity,and the street address,e-mail address,name and telephone
number of an authorized billing contact.Customer shall provide this information within thirty (30)days
after any changes,via email to FA’s Accounts Receivable team for billing contact information.
Customer shall also maintain,at all times during the Service Term,at least one Admin who is a
current employee and is authorized to administer Customer ’s use of the Service.
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8.4 Consequences of Non-Payment.If Customer fails to make any payments required under any
Order Forms or SOW,then in addition to any other rights FA may have under this Agreement or
applicable law:
1.Customer will owe FA an interest penalty of one and one-half percent (1.5%)per month
on any outstanding balance under each delinquent invoice,or the maximum permitted
by law (whichever is less);
2.FA will be entitled to recover its reasonable attorneys’fees,and other reasonable costs
to collect such amounts;and
3.FA reserves the right to temporarily suspend Customer ’s access to the Service if
Customer ’s account remains delinquent for thirty (30)days after receipt of a
delinquency notice from FA (which may be provided via email to Customer ’s billing
contact).Customer will continue to incur and owe all applicable Fees irrespective of any
such Service suspension due to Customer ’s delinquency.
8.5 Renewal Pricing for Dashboards License pricing shall be a fixed price for one (1)year unless
otherwise outlined in the customer ’s specific agreement terms.Prices will escalate by 3%per year
starting at renewal date,and only one price escalation shall be allowed within a twelve (12)month
period.
9)THIRD PARTY INTERACTIONS
To the extent use of the Service requires use of any third party products or services (e.g.,Oracle
Java,Adobe Acrobat,Amazon Web Services and/or a Web browser),such products and services
may require Customer to agree to separate terms.Similarly,in connection with using the Service,
Customer may enter into correspondence with,purchase products and/or services from,and/or
participate in promotions of third parties.Any such third party activities,products and services,and
any terms associated therewith,are solely between Customer and the relevant third parties.FA does
not support,or endorse or make any representations or warranties regarding,any such third party
products or services,and in no event will FA have any liability whatsoever in connection therewith.
10)SERVICE AND PROFESSIONAL SERVICES
If Customer wishes to purchase any training,implementation or other professional services from FA
relating to the Service (“Professional Services”),the Parties will mutually execute one or more
separate SOW containing the relevant terms and conditions.Except to the extent expressly set forth
to the contrary in any applicable SOW,the following provisions will apply to all SOW:
1.As between Customer and FA,Customer will retain all ownership rights in and to all
copyrightable works owned by Customer including without limitation,inventions,
software,trade secrets,work product,methodologies,techniques,tools,algorithms,
materials,products,ideas,designs,and know-how (including all copies,
enhancements,modifications,revisions,and derivative works of any of the foregoing),
that existed prior to the Effective Date of any SOW or Order Form or are acquired by
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Customer from a third party thereafter or developed independently and outside the
scope of this Agreement (and associated intellectual property rights)(“Pre-existing
Customer Intellectual Property”)and any software,design,content,methodologies,
techniques,processes,inventions,materials or other deliverables developed in whole
or in part by FA,or otherwise provided to Customer,in connection with this Agreement
or any applicable SOW or Order Form (“FA Deliverables”),other than FA Independent
Intellectual Property as defined below,shall be the property of Customer.Therefore,as
between FA and Customer,Customer will at all times be and remain the sole and
exclusive owner of any Pre-Existing Customer Intellectual Property and FA
Deliverables.Customer grants FA a non-exclusive,non-transferable,worldwide,
royalty-free license solely to use such Pre-Existing Customer Intellectual Property in
connection with providing the Service during the term of this Agreement or any
applicable SOW or Order Form and otherwise performing its obligations under this
Agreement.
2.All software and services owned and developed by FA,methodologies,techniques,
software libraries,tools,algorithms,materials,products,ideas,designs,and know-how
(including all copies,enhancements,modifications,revisions,and derivative works of
any of the foregoing),that existed prior to the Effective Date of any SOW or Order Form
or are acquired by FA from a third party thereafter or developed independently and
outside the scope of this Agreement (and associated intellectual property rights)
(“Pre-existing FA Intellectual Property”)and any software,design,content,
methodologies,techniques,processes,inventions,materials or other deliverables
independently developed in whole by FA (“FA Independent Intellectual Property”),and
provided to Customer,in connection with this Agreement or any applicable SOW or
Order Form,other than the FA Deliverables shall be the property of FA.As between FA
and Customer,FA will at all times be and remain the sole and exclusive owner of any
Pre-Existing FA Intellectual Property and FA Independent Intellectual Property.;and
3.Subject to the terms of this Agreement,FA grants Customer a non-exclusive,
non-transferable,worldwide,royalty-free license to reproduce,perform,display,create
derivative works of,and otherwise use internally the Pre-Existing and Independent FA
Intellectual Property in connection with the Service during the Term of this Agreement.
Nothing in this Agreement will prohibit,restrict or limit (i)FA from performing similar Professional
Services for any third party,or (ii)Customer from hiring any third party to perform similar Professional
Services (though Customer is not permitted to give any direct competitor of FA access to the Service
or any Pre-Existing and Independent FA Intellectual Property without FA’s prior written consent).
11)WARRANTIES &DISCLAIMERS
11.1 Mutual Warranties.Each Party represents and warrants to the other that it has the legal power
and authority to enter into this Agreement,and that this Agreement has been duly authorized,
executed and delivered and constitutes a valid and binding agreement enforceable against such
Party in accordance with its terms.
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11.2 Additional FA Commitments.FA further represents and warrants that:
1.It will use commercially reasonable technical means to screen for and detect disabling
devices,viruses,trojan horses,trap doors,back doors,Easter eggs,time bombs,
cancelbots and other computer programming routines designed to damage,
detrimentally interfere with,surreptitiously intercept or expropriate any other software or
data;
2.It will make commercially reasonable efforts to notify Customer,at least thirty (30)days
in advance via FA’s Normal Communication Channels,of any scheduled changes FA
believes are likely to have a material,adverse impact on Customer ’s use of the Service
(“Material Changes”).(As a multi-Tenant SaaS vendor,FA reserves the right to make
enhancements and other changes to the Service,including occasional deprecation and
removal of certain features and functionality.)
If FA breaches any warranties in this Section 11.2,Customer ’s exclusive remedy and FA’s sole
obligation will be for FA to make commercially reasonable efforts to correct the non-conformity or,if
FA is unable to correct the non-conformity within sixty (60)days after receipt of Customer ’s written
notice,for Customer to terminate the applicable Order Form(s)and receive a refund,on a pro rata
basis,of any Service Edition Fees prepaid under such Order Form(s)that are unused as of the
termination effective date.
11.3 Warranty Disclaimers.EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS
AGREEMENT:(A)FA AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND,WHETHER EXPRESS,STATUTORY OR IMPLIED (IN FACT OR BY OPERATION
OF LAW),REGARDING THE SERVICE,PROFESSIONAL SERVICES,OR ANY MATTER
WHATSOEVER;AND (B)FA AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR
ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE,MEET CUSTOMER’S
REQUIREMENTS,OR BE TIMELY OR SECURE.FA AND ITS LICENSORS EXPRESSLY DISCLAIM
ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL
SERVICES,AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY
ANY REPRESENTATION OR WARRANTY BY FA.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS,DELAYS,AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS.FA IS NOT
RESPONSIBLE FOR DELAYS,DELIVERY FAILURES,OR OTHER DAMAGE,LOSS OR LIABILITY
RESULTING FROM SUCH PROBLEMS NOT CAUSED BY FA.
Customer agrees that ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER
THIS AGREEMENT ARE neither contingent on the delivery of any future functionality or features,nor
BASED on any oral or written comments regarding ANY future functionality or features.
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12)INDEMNIFICATION
12.1 Each party shall defend,indemnify and hold the other party,its officers,directors,agents,
affiliates and employees harmless from any loss,liability,claim,suit or expense (including,without
limitation,reasonable attorney’s fees and costs)on account of any third party claim arising from the
indemnifying party’s (i)breach of this Agreement,(ii)infringement of a third party right,(iii)negligent
or willful act or omission,or (iv)violation of any law,statute,ordinance,rule or regulation throughout
the world,in each case as relating to or arising from the performance of the Services and/or this
Agreement.
FA will have no obligation or liability and Customer will indemnify and hold harmless FA for any third
party claim under this section to the extent arising from:(i)the combination,operation or use of the
Service with any product,training content,device,software or service not supplied by FA to the extent
the combination creates the infringement;(ii)the unauthorized alteration or modification by Customer
of the Service,(iii)FA’s compliance with Customer ’s designs,specifications,requests,or instructions
in providing Professional Services to the extent the Claim is based on such compliance,(iv)
Customer ’s content or training curriculum,or (v)arising from the Customer ’s use of the LMS to deliver
or track training or use FA content for its organization’s training or that of its customers.
THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS,AND
THE OTHER PARTY’S EXCLUSIVE REMEDIES,IN CONNECTION WITH THIS AGREEMENT WITH
RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.
13)LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
13.1 The FA LMS and any content contained therein including but not limited to videos,
policIes and training courses whether created by FA or shared by customers serve as
examples of best practices and should not in any way replace,interfere,or override
individual agency of companies protocol,standard operating procedure,tactics or
policies.The LMS and any content is provided “as is,as available”basis without
warranty of any kind,expressed,implied or statutory,and any and all warranties of
merchantability,fitness for a particular purpose or non-infringement of third parties’
rights are specifically disclaimed.Although FA has made best efforts to provide
accurate training information on the site,FA makes no guarantee or warranty express
or implied,as to the reliability,accuracy,timeliness or completeness of that information
and assumes no liability for errors or omissions therein.
13.2 EXCEPT FOR SUMS DUE FA UNDER APPLICABLE ORDER FORMS AND SOW,AND EXCEPT WITH
RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE
RESTRICTIONS)AND 12 (INDEMNIFICATION),NEITHER PARTY’S TOTAL AGGREGATE LIABILITY
ARISING FROM OR RELATING TO THIS AGREEMENT WILL EXCEED THE AMOUNTS ACTUALLY PAID
BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO SUCH LIABILITY;
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13.3 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY
UNDER SECTIONS 4.2 (USE RESTRICTIONS)AND 12 (INDEMNIFICATION),IN NO EVENT WILL
EITHER PARTY OR ITS AFFILIATES,OWNERS,OFFICERS,DIRECTORS,EMPLOYEES OR
LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE
ELSE FOR ANY INDIRECT,PUNITIVE,SPECIAL,EXEMPLARY,INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING,WITHOUT LIMITATION,LOSS OF
REVENUE,PROFITS,USE,DATA OR OTHER ECONOMIC ADVANTAGE)ARISING OUT OF,OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT,REGARDLESS OF CAUSE,EVEN IF THE
PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS
PREVIOUSLY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;AND
13.4 THE TERMS OF THIS SECTION 13 APPLY REGARDLESS OF THE FORM OF ACTION,
WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING,
BUT NOT LIMITED TO,BREACH OF WARRANTY),TORT (INCLUDING,BUT NOT LIMITED TO,
NEGLIGENCE),STATUTE,OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE PROVISIONS OF THIS SECTION 13 ALLOCATE RISKS UNDER THIS AGREEMENT
BETWEEN CUSTOMER AND FA,AND THE FEES CHARGED FOR THE SERVICE REFLECT THIS
ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
14)CONFIDENTIALITY
14.1 Definition.As used in this Agreement,“Confidential Information”means information and
materials provided by the disclosing Party (“Discloser”)to the Party receiving such information or
materials (“Recipient”)that (a)are identified as confidential at the time of disclosure,or (b)a
reasonable person in the relevant industries should understand to be confidential based on the nature
of the information and materials and all other relevant factors.For the avoidance of doubt,Customer ’s
Confidential Information includes,without limitation,all Customer Data,all Customer non-public
business information,and Customer ’s Intellectual Property,and FA’s Confidential Information
includes,without limitation,all pricing terms offered to Customer under any Order Form,FA’s
non-public business plans,all non-public aspects of the FA Technology,and the results of any
evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its
availability,performance or functionality,or for any other benchmarking or competitive purposes.
14.2 Purpose.Recipient must not use any of Discloser ’s Confidential Information for any purpose
other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the
“Purpose”).
14.3 Permitted Disclosures and Obligations.Recipient also must not disclose to any third party any
Confidential Information,other than to Recipient’s Affiliates,contractors,consultants,and employees
who (a)need to know such information in order to fulfill the Purpose,and (b)are bound by
confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully
responsible for its respective Affiliates’,contractors’,consultants’and employees’compliance with
this Agreement).Recipient must treat all Discloser Confidential Information with the same degree of
care Recipient gives to its own Confidential Information,but not less than reasonable care.Further,
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neither Party may disclose publicly the existence or nature of any negotiations,discussions or
consultations in progress between the Parties without the prior written consent of the other Party.
Recipient and its Affiliates,contractors,consultants,and employees who receive Confidential
Information hereunder must:(i)not use any such Confidential Information to compete with Discloser
or in any other way except as reasonably necessary for the Purpose;(ii)not reverse engineer,
disassemble or decompile any prototypes,software or other tangible objects received from Discloser
under this Agreement that embody Confidential Information;(iii)promptly notify Discloser of any
unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware;and
(iv)reasonably assist Discloser in remedying any such unauthorized use or disclosure.
14.4 Exclusions.Recipient’s obligations under Section 14 will not apply to any Discloser Confidential
Information that Recipient can prove with sufficient documentary evidence:(a)is or becomes part of
in the public domain through no fault of Recipient;(b)is rightfully in Recipient’s possession free of any
confidentiality obligation;(c)was independently developed by Recipient without use of any Discloser
Confidential Information;or (d)is communicated by Discloser to an unaffiliated third party free of any
confidentiality obligation.A disclosure by Recipient of any Confidential Information (i)in response to a
valid order or other legal process issued by a court or other governmental body having jurisdiction,(ii)
as otherwise required by law,or (iii)necessary to establish the rights of either Party under this
Agreement will not be a breach of this Agreement if,to the extent legally permitted,Recipient gives
Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such
disclosure.
14.5 Ownership and Destruction of Confidential Information.As between Discloser and Recipient,all
Discloser Confidential Information is the property of Discloser,and no license or other rights are
granted or implied hereby.All materials provided to Recipient by Discloser,whether or not they
contain or disclose Confidential Information,are Discloser ’s property.Promptly after any request by
Discloser,Recipient will (a)destroy or return to Discloser all Confidential Information and materials in
Recipient’s possession or control,and (b)upon written request by Discloser,confirm such
return/destruction in writing;provided,however,that the Recipient may retain electronic copies of any
computer records or electronic files containing any Discloser Confidential Information that have been
created pursuant to Recipient’s standard,commercially reasonable archiving and backup practices,
as long as Recipient continues to comply with this Agreement with respect to such electronic backup
copies for so long as such Confidential Information is retained.
14.6 Export.Exchange of Confidential Information under this Agreement is subject to all applicable
export laws and regulations.Except to the extent permitted by a separate agreement,the Parties will
not disclose any information requiring an authorization to be exported.
14.7 Confidentiality Period.Recipient’s obligations with respect to Discloser ’s Confidential Information
under Section 14 will remain in effect for the term of this Agreement and for three (3)years after any
expiration or termination of this Agreement.
15)GENERAL
15.1 Governing Law.This Agreement is governed by Delaware law and controlling United States federal law,
without regard to conflicts of law provisions of any jurisdiction.Any disputes,actions,claims or causes of action
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arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state
and federal courts located in Delaware,USA.The Service is a service,not a good,and is not subject to the
Uniform Commercial Code,the Uniform Computer Information Transactions Act,or the United Nations
Convention on the International Sale of Goods.
15.2 Assignment.Neither Party may assign,sublicense or otherwise transfer (by operation of law or
otherwise)this Agreement,or any of a Party’s rights or obligations under this Agreement,to any third
party without the other Party’s prior written consent,which consent must not be unreasonably
withheld,delayed or conditioned;provided,however,that upon written notice to the other Party,either
Party may assign or otherwise transfer this Agreement,along with all associated Order Forms and
SOW (and all its rights and obligations thereunder),(a)to a successor-in-interest in connection with a
merger,acquisition,reorganization,a sale of most or all of its assets,or other change of control,or (b)
to its Affiliate.In the event of such a permitted transfer by Customer,the rights granted under this
Agreement shall continue to be subject to the same usage limitations that applied under applicable
Order Forms prior to the transfer (e.g.,any transaction volume terms and limitations to particular
Customer legal entities,business units,projects,brands,products and/or services set forth therein).
Any purported assignment or other transfer in violation of this section is void.Subject to the terms of
this section,this Agreement will bind and inure to the benefit of the Parties and their respective
permitted successors and transferees.
Notwithstanding anything to the contrary in this section,in the event of any permitted transfer by
Customer under this section to a direct competitor of FA,FA will have the right to terminate this
Agreement (including all associated Order Forms and SOW)for cause under Section 6.5.In the event
of such a termination,FA will promptly refund to Customer,on a pro rata basis,all Fees prepaid by
Customer under all Order Forms and SOW then in effect that are unused as of the termination
effective date.
15.3 Force Majeure.If either Party is prevented from performing,or is unable to perform,any of its
obligations under this Agreement (other than payment obligations)due to any cause beyond its
reasonable control,e.g.,war,riots,labor unrest,fire,earthquake,flood,hurricane,other natural
disasters and acts of God,Internet service failures or delays,and denial of service attacks
(collectively,“Force Majeure”),the affected Party’s performance will be excused for the resulting
period of delay or inability to perform.
15.4 Marketing.Upon Customer ’s prior written consent,which may be withheld or revoked at any time
in Customer ’s sole discretion,FA is may identify Customer as a FA customer on FA’s website and
marketing materials.Within thirty (30)days after Customer goes live on the Service,(a)Customer
and FA will issue a mutually agreed joint public announcement,and (b)Customer may consider
serving as a reference for FA in Customer ’s sole discretion.Customer further agrees that “Powered
by FA”or a similar FA mark may appear in invoices,quotes,hosted payment pages,hosted checkout
pages,and similar outputs generated through Customer ’s use of the Service.
15.5 Independent Contractors.The Parties are independent contracting parties.Neither Party has,or
will hold itself out as having,any right or authority to incur any obligation on behalf of the other Party.
The Parties’relationship in connection with this Agreement will not be construed as a joint venture,
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partnership,franchise,employment,or agency relationship,or as imposing any liability upon either
Party that otherwise might result from such a relationship.
15.6 Notices.All legal notices (e.g.,notice of termination of this Agreement or an Order Form based
on an alleged material breach)required under this Agreement must be delivered to the other Party in
writing (a)in person,(b)by nationally recognized overnight delivery service,or (c)by certified U.S.
mail (requiring signature)to the other Party’s corporate headquarters,Attention:Legal Department.
With respect to all other notices,Customer may email FA’s primary assigned contact and FA may
email Customer’s billing contact identified on the applicable Order Form(s)or SOW.Either Party may
change its notice address by giving written notice to the other Party.
15.7 Anti-Corruption.Customer acknowledges it has not received or been offered any illegal or
otherwise improper bribe,kickback,payment,gift or other thing of value by any FA employee,
representative or agent in connection with this Agreement.Customer will use reasonable efforts to
promptly notify FA if Customer becomes aware of any circumstances that are contrary to this
acknowledgment.
15.9 Execution.This Agreement may be signed electronically and in counterparts,in which case each
signed copy will be deemed an original as though both signatures appeared on the same document.
15.10 Entire Agreement.This Agreement,together with any applicable Order Forms and SOW
(including any other terms referenced in any of those documents),comprises the entire agreement
between Customer and FA regarding the subject matter of this Agreement,supersedes all prior or
contemporaneous negotiations,discussions or agreements,whether written or oral,between the
Parties regarding such subject matter,and may only be modified by a document signed by authorized
representatives of both Parties.
16)DEFINITIONS
As used in this Agreement:
“Affiliate”means a company,corporation,individual,partnership or other legal entity that directly or
indirectly controls,is controlled by,or is under common control with a Party to this Agreement.For
purposes of this definition,“control”means direct or indirect ownership or control of more than fifty
percent (50%)of the voting interests of the subject entity;
“Content”means the audio and visual information,documentation,software,products and services
contained in or made available via the Service,other than Customer Data and Customer Confidential
Information;
“Customer Data”means any data,information or material received by the Service from Customer or
Customer ’s Users in the course of accessing or using the Service;
“Intellectual Property Rights”means rights under any copyright,patent,trademark,trade secret and
other intellectual property laws worldwide;
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“Normal Communication Channels”means the online channels through which FA normally
communicates important information to its customers,e.g.,FA’s online Knowledge Center and
community site,and/or the email address(es)provided by Customer.(Customer must opt-into FA’s
online community site to receive certain important information regarding such changes and to take
other required action relating to use of the Service.);
“Privacy Laws”means all European Union member country and U.S.laws and regulations regarding
data privacy and transmission of personal data that apply to FA’s provision of the Service to Customer
(e.g.,storing and processing Customer Data),including,without limitation,Articles 25(1)and 26(1)of
EU Directive 95/46/EC of 24 October 1995;
“Service”means FA’s online subscription service (e.g.,for subscription billing management and
analytics),accessible via any Web site or IP address designated by FA,which FA provides to
Customer under an Order Form.“Service”also includes all components of FA’s online LMS service,
and all Content and FA Technology provided by FA in connection therewith;
“SOW”means Statement(s)of Work,Work Authorization(s)or other contract(s)under which FA
provides its Professional Services,if any;
“User(s)”means Customer ’s customers,employees,representatives,consultants,contractors and
agents who have been authorized by Customer to use the Service;and
“FA Technology”means all of FA’s and its licensors’proprietary technology that FA makes available to
Customer as part of or in connection with the Service (including,without limitation,any and all
software,hardware,products,processes,APIs,algorithms,user interfaces,trade secrets,know-how,
techniques,designs and other tangible or intangible technical material or information).
Appendix A:Service Level Agreement
1.Response Times
For all support issues relating to the FA Dashboards &Websites,FA will make an
industry standard and commercially reasonable effort to respond promptly (via FA’s
Normal Support Channels),in any event within two (2)Business Days after receipt,
unless otherwise specified in the Customer ’s specific contract/package level
2.Uptime Commitment
The Uptime Percentage for the Service will be ninety-nine and five-tenths percent
(99.5%)(the “Uptime Commitment”).Subject to the exclusions described in Subsection
C below,“Uptime Percentage”is calculated by subtracting from 100%the percentage
of 1-minute periods during any yearly billing cycle (i.e.,12 calendar months)in which
Customer ’s Production Tenant(s)is (are)Unavailable out of the total number of minutes
in that quarterly billing cycle.“Unavailable”and “Unavailability”mean that,in any
1-minute period,all connection requests received by Customer ’s Production Tenant(s)
failed to process (each a “Failed Connection”);provided,however,that no Failed
Connection will be counted as a part of more than one such 1-minute period (e.g.a
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Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period
12:00:30-12:01:29).The Yearly Uptime Percentage will be measured based on the
industry standard monitoring tools FA uses.
3.Exclusions from Uptime Percentage
Notwithstanding anything to the contrary in this exhibit,any Service Unavailability
issues resulting from any of the following will be excluded from calculation of Quarterly
Uptime Percentage:
●Regularly scheduled maintenance of the Service that does not exceed six (6)hours per
3-month period and is communicated by FA at least twenty-four (24)hours in advance
via FA’s Normal Support Channels.(FA typically schedules such regularly scheduled
maintenance once per month.);
●Any failures of the FA Standard and Custom Reporting Services that does not exceed
six (6)hours per 3-month period and is communicated by FA at least twenty-four (24)
hours in advance via FA’s Normal Support Channels.;
●QuickBooks,or a payment gateway;Amazon Web Services (AWS)or Google
Enterprise –Any issues with a third party service to which Customer subscribes (e.g.
third party integrations and data providers)
●Any problems not caused by FA that result from (a)computing or networking hardware,
(b)other equipment or software under Customer ’s control,(c)the Internet,or (d)other
issues with electronic communications;
●FA’s suspension or termination of the Service in accordance with the Agreement and/or
its associated Order Form;
●Exceeding FA’s published Concurrent Request Limits;
●Software that has been subject to unauthorized modification by Customer;
●Negligent or intentional misuse of the Service by Customer;or –“Beta”or “limited
availability”products,features and functions identified as such by FA.Customer may
elect to use certain billable FA Professional Services to resolve issues associated with
the excluded areas listed in the Customer ’s contract/agreement.Such Professional
Services may require Customer to complete a network assessment,and/or give FA
access to Customer ’s network,in order to diagnose the issue.
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International Users
The Service is controlled, operated and administered by First Arriving from our offices within the USA.
If you access the Service from a location outside the USA, you are responsible for compliance with all
local laws. You agree that you will not use the First Arriving Content accessed through First
Arriving.com in any country or in any manner prohibited by any applicable laws, restrictions or
regulations.
Changes to Terms
First Arriving reserves the right, in its sole discretion, to change the Terms under which
firstarriving.com and related services is offered. The most current version of the Terms will supersede
all previous versions. First Arriving encourages you to periodically review the Terms to stay informed
of our updates.
Contact Us
First Arriving welcomes your questions or comments regarding the Terms:
First Arriving
9555 Kings Charter Drive
Suite K
Ashland, VA 23005
Email Address:
getstarted@firstarriving.com
Telephone number:
+1 (240) 667-7755
Signature: _______________________________________ Date: _____________
Signature: _______________________________________ Date: _____________
Approved as to form:
Alexandra B. Ruggie
Corporation Counsel
08 / 20 / 2024
Doc ID: b758ff7e02c191c2181f2a0b19d83ebcba1f7217
Contract with First Arriving for Digital dashboard to...
Master_Services__...by_Vendor__1_.pdf
b758ff7e02c191c2181f2a0b19d83ebcba1f7217
MM / DD / YYYY
Signed
08 / 19 / 2024
09:39:41 UTC-5
Sent for signature to Alexandra Ruggie
(aruggie@cityofevanston.org) and Michael Rivera
(michaelrivera@cityofevanston.org) from
lthomas@cityofevanston.org
IP: 66.158.65.76
08 / 19 / 2024
12:09:03 UTC-5
Viewed by Alexandra Ruggie (aruggie@cityofevanston.org)
IP: 66.158.65.76
08 / 19 / 2024
12:09:13 UTC-5
Signed by Alexandra Ruggie (aruggie@cityofevanston.org)
IP: 66.158.65.76
08 / 20 / 2024
14:57:32 UTC-5
Viewed by Michael Rivera (michaelrivera@cityofevanston.org)
IP: 66.158.65.110
08 / 20 / 2024
14:58:13 UTC-5
Signed by Michael Rivera (michaelrivera@cityofevanston.org)
IP: 66.158.65.110
The document has been completed.08 / 20 / 2024
14:58:13 UTC-5