HomeMy WebLinkAboutItem 2h - Mass Notification System Services
DATE: September 5, 2017
TO: Honorable Mayor and City Council
FROM: Michael E. Lang, Fire Chief
By: Barry Spriggs, Deputy Fire Chief
SUBJECT: MASTER SERVICES AGREEMENT WITH EVERBRIDGE INC. FOR
EMERGENCY MASS NOTIFICATION SYSTEM SERVICES IN AN
AMOUNT NOT TO EXCEED $22,000
Recommendation: Approve
SUMMARY
The Fire Department recently solicited a Request for Proposal to provide emergency
mass notification system services. Upon review and evaluation of all proposals, it is
recommended that the City Council approve, and authorize and direct the City Manager
to execute a Master Services Agreement with Everbridge Inc. for emergency mass
notification system services in an amount not to exceed $22,000 for Fiscal Year 2017-
18; and, predicated on no change in contract cost, to renew the contract annually for the
next three years or through September 2021.
Attached is a proposed copy of the Master Services Agreement (“Agreement”) with
Everbridge, Inc. for FY 2017-18. Sufficient funds have been budgeted in the Fire
Department’s FY 2017-18 Operating Budget.
DISCUSSION
A mass notification system (“MNS”) is a platform that provides recipients one-way
messages to inform the public and employees with vital information relating to outreach
and/or early warnings during an emergency event. An MNS typically has a database of
names, phone numbers, email addresses, and delivery methods in which people and
organizations can be contacted via pre-recorded phone calls, text messages, emails,
and social media.
Master Services Agreement for Mass Notification System
September 5, 2017
Page 2 of 3
One of the most important characteristics of any message delivery method is reaching
its intended audience in a timely manner. Recently, the Fire Department solicited
proposals to provide emergency mass notification system services that will allow
community leaders and staff to send important information to all its constituents and
employees within minutes. While the Fire Department took the lead on soliciting the
proposals, the MNS would be available for all departments and City personnel.
Presently, the City has a divided MNS system. One is used by the Police Department
for free (Nixle/Everbridge), where communication is used for outreach only via text and
email. The other system is used primarily by the Fire Department (Blackboard) for both
emergency and outreach communication via text, email, and phone. Blackboard is also
accessible for use by other departments. The Fire Department’s existing agreement
with Blackboard is set to expire in September 2017 with an annual amount of $26,000.
Contracting with Everbridge will combine services at a much lower cost. Essentially, its
MNS platform will allow for one unified system for emergency and outreach
communication with the benefits of customization to target specific audience using
multiple levels of communication through text, email, and phone.
One of the key components of the proposal specified that the mass notification system
should have the capability to send out messages through multiple methods of
communication such as voice, text, and email. The ability to customize the intended
audience was also required. Essentially, the Arcadia MNS will allow users to send
messages to specific sections of the community or the entire City. It will also allow staff
to send both emergency and/or outreach messages to Arcadia residents and
businesses.
In June 2017, a Notice Inviting Proposals was published four times in the City’s
adjudicated newspaper including extending the proposal’s deadline to attract more
interest from potential firms. During the solicitation process, the Department received
two inquiries from Seven Outsource and Onsolve companies with questions relating to
the City’s outsourcing policy, history of use, and languages used for communication.
Even with this outreach effort, in July 2017, the Fire Department received only two (2)
proposals with the following result:
Proposer Location Proposal Cost
Everbridge, Inc. San Francisco, CA $21,844.11
Blackboard Washington, DC $25,239.53
Upon reviewing and evaluating the Request for Proposals, it was determined that
Everbridge Inc. is the most qualified and experienced firm that can deliver the
requirements outlined in the proposal’s scope of service. Additionally, Everbridge, Inc.
is the existing community engagement provider for the Arcadia Police Department.
Everbridge, Inc. also offers similar services to the Cities of Downey, Glendale, Malibu,
Torrance, and Ventura County with a customer base of 3,500 customers globally that
Master Services Agreement for Mass Notification System
September 5, 2017
Page 3 of 3
include local, state, and federal government sectors. Based on Everbridge, Inc.’s
evident skills and expertise in the management and implementation of a mass
notification system platform, utilization of their services would be of benefit to the City.
FISCAL IMPACT
The first year cost ($22,000) has been budgeted in the Fire Department’s FY 2017-18
Operating Budget for mass notification system services. Based on no change in
contract cost, the subsequent three years, through September 2021, will be budgeted in
each respective Operating Budget. The current agreement with Blackboard for this
service has an annual service cost of $26,000. Therefore, a new agreement with
Everbridge will result in an 18% annual savings for providing mass notification system
services and will incorporate all City departments.
ENVIRONMENTAL IMPACT
The Master Services Agreement with Everbridge, Inc. is not considered a project as
defined by California Environmental Quality Act (“CEQA”) Section 15378; as a service
contract of this nature is considered ministerial.
RECOMMENDATION
It is recommended that the City Council approve, and direct and authorize the City
Manager to execute a Master Services Agreement with Everbridge, Inc. for emergency
mass notification system services in an amount not to exceed $22,000 for Fiscal Year
2017-18; and predicated on no change in the agreement cost, to renew the Agreement
annually for the next three years or through September 2021.
Attachment: Master Services Agreement with Everbridge, Inc.
Nixle Master Services Agreement v6 01.29.17 1
Everbridge – Nixle
Master Services Agreement
This Master Services Agreement (“Agreement”) is entered
into by and between Everbridge, Inc. (“Everbridge”), and
___________________________ (“Client”), effective on the date
of Client’s signature below (“Effective Date”). Everbridge and
Client are each sometimes referred to as a “Party” and
collectively, the “Parties.”
1. SERVICES.
1.1 Orders. Everbridge shall provide Client access to its
proprietary interactive communication service(s) (the
“Service(s)”) subject to the terms and conditions set forth in this
Agreement and the description of services and pricing provided
in the applicable quote (the “Quote”) and the applicable Solution
documentation (the “Documentation”). If applicable, Everbridge
shall provide the training and professional services set forth in
the Quote. Everbridge shall provide Client with login and
password information for each User (as defined below) and will
configure the Solutions based on the maximum number of
Contacts (as defined below) or Users, as applicable depending
on the Solutions ordered. Client shall undergo the initial setup
and training as set forth in the onboarding Documentation within
sixty (60) days of the Effective Date. Unless otherwise provided
in the applicable Quote or Documentation, Services are
purchased as annual subscriptions.
1.2 Users; Contacts. “Users” are individuals who are
authorized by Client from time to time to use the Solutions for the
purposes of sending notifications, configuring templates,
reporting or managing data, serving as system administrators, or
performing similar functions, and who have been supplied user
identifications and passwords by Client. Users may include
employees and contractors of Client or an Included Department.
“Included Department” means any enterprise department,
office, agency, or other entity that receives a majority of its
funding from the same general or enterprise fund, as applicable,
as the Client. “Contacts” are individuals who Client contacts
through the Solutions and/or who provides their personal contact
information to Everbridge, including through an opt-in portal. If
applicable to the particular Solution, the number of Users and/or
Contacts that may be authorized by Client is set forth on the
Quote.
1.3 Affiliated Entities. Departments, divisions,
agencies or governmental entities which are affiliated politically,
operationally or otherwise with Client, and which are not an
Included Department (each, an “Affiliated Entity”) may purchase
Services to the same extent as Client, provided, that the Affiliated
Entity purchases the Services on the same terms and conditions
as are contained in this Agreement pursuant to a fully executed
Quote agreed to by Everbridge and such Affiliated Entity. Client
and the Affiliated Entity shall maintain separate accounts with
Everbridge. Solely as to the Agreement between Everbridge and
such Affiliated Entity, all terms and references to “Client” shall
refer to such Affiliated Entity upon execution of an applicable
Quote. By executing a Quote each Affiliated Entity agrees to be
bound by all the terms and conditions herein as to such Affiliated
Entity. An entity that otherwise qualifies under this definition will
be included within the meaning of Affiliated Entity even though it
qualifies after the execution of this Agreement.
2. PAYMENT TERMS. Everbridge shall invoice Client
annually in advance for the Services, and Client shall pay the
fees set forth in the Quote within thirty (30) days from date of
invoice. If Client exceeds the usage levels specified in the Quote,
then Everbridge may invoice Client for any overages at the then
applicable rate. Late payments shall accrue interest at a rate of
one and one-half percent (1.5%) per month or the highest rate
allowed by applicable law, whichever is lower. Such interest shall
be in addition to any other rights and remedies of Everbridge.
Unless otherwise provided, the fees set forth in the Quote do not
include any local, state, federal or foreign taxes, levies or duties
of any nature, all of which Client is responsible for paying, except
for those relating to Everbridge’s net income or property. If
Everbridge is legally obligated to collect or pay taxes for which
Client is responsible, the appropriate amount shall be invoiced to
and paid by Client, unless Client provides a valid tax exemption
certificate.
3. RESPONSIBILITIES.
3.1 Client Data. Client shall retain all ownership rights
in all Contact data and all electronic data Client transmits to
Everbridge to or through the Services (“Client Data”). Client
represents that it has the right to authorize and hereby does
authorize Everbridge to collect, store and process Client Data
subject to the terms of this Agreement. Client shall maintain a
copy of all Contact data it provides to Everbridge.
3.2 Use of Services. Client is responsible for all activity
occurring under Client’s account(s) and shall comply with all
applicable Privacy Laws (as defined below) and all other
applicable U.S. laws and regulations in connection with Client’s
use of the Services, including its provision of Client Data to
Everbridge. Where applicable, Client shall obtain the required
consent of Contacts to send communications through the
Services. Client shall use the Services in accordance with
Everbridge’s then applicable Acceptable Use Policy posted on
www.everbridge.com. Client shall promptly notify Everbridge of
any unauthorized use of any password or account or any other
act or omission that would constitute a breach or violation of this
Agreement. Client acknowledges that the Services are a passive
conduit for the transmission of Client Data, and Everbridge has
no obligation to screen, preview or monitor content, and shall
have no liability for any errors or omissions or for any
defamatory, libelous, offensive or otherwise unlawful content in
any Client Data, or for any losses, damages, claims, or other
actions arising out of or in connection with any data sent,
accessed, posted or otherwise transmitted via the Services by
Client, Users or Contacts.
3.3 Data Privacy. Everbridge shall abide by all
applicable Privacy Laws in connection with the operation of the
Services. “Privacy Laws” means all U.S. federal and state laws
and regulations regarding consumer and data protection and
privacy.
3.4 Data Security. Everbridge’s IT security and
compliance program includes the following standards generally
adopted by industry leading SaaS providers: (i) reasonable and
appropriate technical, organizational, and security measures
against the destruction, loss, unavailability, unauthorized access
or alteration of Client Data in the possession or under the control
of Everbridge, including measures to ensure the availability of
information following interruption to, or failure of, critical business
processes; and (ii) an annual assessment of its security controls
performed by an accredited third party audit firm in accordance
with the Statement on Standards for Attestation Engagements
No. 16 (SSAE 16). Upon request, Everbridge shall provide Client
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with a copy of its current SSAE 16 SOC 2 report. Everbridge’s
security framework is based on the security requirements and
controls within US National Institute of Standards and
Technology (NIST) Special Publication 800-53 – Security and
Privacy Controls for Information Systems and Organizations. The
NIST 800-53 security requirement standard has direct mapping
to other security and data privacy frameworks, including global
information security standard ISO 27001, HIPAA-HITECH, and
HITRUST.
4. TERM. The term of this Agreement shall begin on the
Effective Date and shall expire when all underlying Quotes with
Client or its Affiliates have expired in accordance with the terms
of such Quotes, unless terminated earlier as provided herein.
Services under an applicable Quote will begin as set forth in such
Quote and shall continue for the initial term specified therein
(“Initial Service Term”). If a Quote contains Services added to
an existing subscription, such added Services will be
coterminous with the Initial Service Term or applicable renewal
Service term (“Renewal Term”), unless otherwise agreed to by
the parties. If at the end of the applicable Quote, Client intends to
renew the Agreement, but has not provided a timely executed
written renewal prior to the end of such term, then Everbridge, in
its sole discretion, shall continue the Service(s) hereunder for
thirty (30) days (the “Grace Period”) in order to secure an
executed renewal by Client, provided that Client shall pay to
Everbridge the annual fee then in effect divided by twelve (12)
(the “Monthly Holdover Fee”). The Grace Period is provided to
Client as a courtesy so that Services will not be terminated prior
to the execution of a renewal. Due to insurance and liability
reasons Everbridge can only provide one Grace Period and will
charge the Monthly Holdover Fee. The Monthly Holdover Fee is
instituted in order to protect Client from termination or suspension
of the Services, and to insure that timely renewals are entered
into. Monthly Holdover Fees shall not be returned or refunded to
the Client as a credit towards any renewal. Except as set forth in
an applicable Quote, or unless this Agreement is terminated as
provided herein, upon expiration of the term of any Quote, such
Quote shall renew automatically for successive subsequent
periods of twelve (12) months unless either party notifies the
other party of its intent to terminate at least thirty (30) days prior
to the end of the then current term. Everbridge reserves the right
to increase its fees in any Renewal Term by three percent (3%).
With respect to any renewals which are signed by Client after the
previous term’s expiration date, Everbridge reserves the right to
increase its fees in such Renewal Term by five percent (5%).
Everbridge may employ the foregoing price increases if
Everbridge notifies Client at least ninety (90) days prior to the
commencement of the applicable Renewal Term.
5. TERMINATION; SUSPENSION.
5.1 Termination by Either Party. Either Party may
terminate this Agreement upon the other Party's material breach
of this Agreement, provided that (i) the non-breaching Party
sends written notice to the breaching Party describing the breach
in reasonable detail; (ii) the breaching Party does not cure the
breach within thirty (30) days following its receipt of such notice
(the "Notice Period"); and (iii) following the expiration of the
Notice Period, the non-breaching Party sends a second written
notice indicating its election to terminate this Agreement.
5.2 Termination or Suspension for Non-Payment. If
Client fails to pay any amounts due within thirty (30) days of their
due date, Everbridge may terminate this Agreement upon thirty
(30 days’ prior written notice to Client. Termination for non-
payment shall not relieve Client of its outstanding obligations
(including payment) under this Agreement. In lieu of termination
for non-payment, Everbridge may suspend Client’s access to the
Solutions upon written notice to Client.
5.3 Termination for Non-Appropriation. If no funds
are appropriated or otherwise made legally available to make the
required payments for a Renewal Term (an “Event of Non-
Appropriation”), this Agreement will terminate at the end of the
then current service year so long as Client provides at least thirty
(30) days’ written notice prior to the Renewal Term beginning.
The failure or inability of the Client to appropriate funds for any
Renewal Term shall not be deemed a breach of this Agreement.
5.4 Suspension. Everbridge may suspend Client’s
access to the Solutions or any portion thereof for (i) emergency
network repairs, threats to, or actual breach of network security;
or (ii) any legal, regulatory, or governmental prohibition affecting
the Solution. Everbridge shall use its best efforts to notify Client
through its Client Portal and/or via email prior to such suspension
and shall reactivate any affected portion of the Service as soon
as possible.
6. PROPRIETARY RIGHTS.
6.1 Grant of License. Subject to the terms and
conditions of this Agreement, Everbridge hereby grants to Client,
during the term of this Agreement, a limited, non-exclusive, non-
transferable, non-sublicensable right to use the Service.
6.2 Restrictions. Client shall use the Service solely for
its internal business purposes. In particular, Client’s use of the
Solutions shall not include service bureau use, outsourcing,
renting, reselling, sublicensing, or time-sharing. Client shall not (i)
sell, transfer, assign, distribute or otherwise commercially exploit
or make available to any third party the Services except as
expressly set forth herein; (ii) modify or make derivative works
based upon the Services; (iii) reverse engineer the Solution; (iv)
remove, obscure or alter any proprietary notices or labels on the
Software or any materials made available by Everbridge; (v) use,
post, transmit or introduce any device, software or routine
(including viruses, worms or other harmful code) which interferes
or attempts to interfere with the operation of the Solution; or (vi)
defeat or attempt to defeat any security mechanism of any
Solution.
6.3 Reservation of Rights. The Solutions (including all
associated computer software (whether in source code, object
code, or other form), databases, indexing, search, and retrieval
methods and routines, HTML, active server pages, intranet
pages, and similar materials) and all intellectual property and
other rights, title, and interest therein (collectively, “IP Rights”),
whether conceived by Everbridge alone or in conjunction with
others, constitute Confidential Information and the valuable
intellectual property, proprietary material, and trade secrets of
Everbridge and its licensors and are protected by applicable
intellectual property laws of the United States and other
countries. Everbridge owns (i) all feedback (except for the Client
Data) provided to Everbridge by Users, Client and Contacts in
conjunction with the Services, and (ii) all transactional,
performance, derivative data and metadata generated in
connection with the Solutions, which are generally used to
improve the functionality and performance of the Services.
Except for the rights expressly granted to Client in this
Agreement, all rights in and to the Solutions and all of the
foregoing elements thereof (including the rights to any work
product resulting from Professional Services and to any
modification, enhancement, configuration or derivative work of
the Solutions) are and shall remain solely owned by Everbridge
and its respective licensors. Everbridge may use and provide
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Solutions and Professional Services to others that are similar to
those provided to Client hereunder, and Everbridge may use in
engagements with others any knowledge, skills, experience,
ideas, concepts, know-how and techniques used or gained in the
provision of the Solutions or Professional Services to Client,
provided that, in each case, no Client Data or Client Confidential
Information is disclosed thereby.
7. CONFIDENTIAL INFORMATION.
7.1 Definition. “Confidential Information” means all
information of a Party (“Disclosing Party”) disclosed to the
other Party (“Receiving Party”), whether orally, electronically, in
writing, or by inspection of tangible objects (including, without
limitation, documents or prototypes), that is designated as
confidential or that reasonably should be understood to be
confidential given the nature of the information and the
circumstances of disclosure. Confidential Information includes
without limitation, all Client Data, the Solutions, and either Party’s
business and marketing plans, technology and technical
information, product designs, reports and business processes.
Confidential Information shall not include any information that: (i)
is or becomes generally known to the public without breach of
any obligation owed to Disclosing Party; (ii) was known to
Receiving Party prior to its disclosure by Disclosing Party without
breach of any obligation owed to Disclosing Party; (iii) was
independently developed by Receiving Party without breach of
any obligation owed to Disclosing Party; or (iv) is received from a
third party without breach of any obligation owed to Disclosing
Party.
7.2 Protection. Receiving Party shall not disclose or
use any Confidential Information of Disclosing Party for any
purpose other than performance or enforcement of this
Agreement without Disclosing Party’s prior written consent. If
Receiving Party is compelled by law to disclose Confidential
Information of Disclosing Party, including under the Freedom of
Information Act or other public information request (i.e., “state
sunshine” laws) it shall provide Disclosing Party with prior notice
of such compelled disclosure (to the extent legally permitted) and
reasonable assistance, at Disclosing Party's cost, if Disclosing
Party wishes to contest the disclosure. Receiving Party shall
protect the confidentiality of Disclosing Party's Confidential
Information in the same manner that it protects the confidentiality
of its own confidential information of like kind (but in no event
using less than reasonable care). Receiving Party shall promptly
notify Disclosing Party if it becomes aware of any breach of
confidentiality of Disclosing Party's Confidential Information.
7.3 Upon Termination. Upon any termination of this
Agreement, the Receiving Party shall continue to maintain the
confidentiality of the Disclosing Party's Confidential Information
and, upon request and to the extent practicable, destroy all
materials containing such Confidential Information.
Notwithstanding the foregoing, either Party may retain a copy of
any Confidential Information if required by applicable law or
regulation, in accordance with internal compliance policy, or
pursuant to automatic computer archiving and back-up
procedures, subject at all times to the continuing applicability of
the provisions of this Agreement.
8. WARRANTIES; DISCLAIMER.
8.1 Everbridge Warranty. Everbridge shall provide the
Services in material compliance with the functionality and
specifications set forth in the applicable Service Documentation.
Everbridge shall provide 24X7X365 customer support in
accordance with its most recently published Support Services
Guide. To the extent professional services are provided,
Everbridge shall perform them in a professional manner
consistent with industry standards. THE FOREGOING
REPRESENT THE ONLY WARRANTIES MADE BY
EVERBRIDGE HEREUNDER, AND EVERBRIDGE EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW.
8.2 Disclaimer. EVERBRIDGE DOES NOT WARRANT
THAT THE SOLUTION WILL OPERATE ERROR FREE OR
WITHOUT INTERRUPTION. WITHOUT LIMITING THE
FOREGOING, IN NO EVENT SHALL EVERBRIDGE HAVE ANY
LIABILITY FOR PERSONAL INJURY (INCLUDING DEATH) OR
PROPERTY DAMAGE ARISING FROM FAILURE OF THE
SERVICE TO DELIVER AN ELECTRONIC COMMUNICATION,
HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, EVEN IF EVERBRIDGE HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE.
8.3 SMS Transmission. CLIENT ACKNOWLEDGES
THAT THE USE OF SHORT MESSAGING SERVICES (“SMS”),
ALSO KNOWN AS TEXT MESSAGING, AS A MEANS OF
SENDING MESSAGES INVOLVES A REASONABLY LIKELY
POSSIBILITY FROM TIME TO TIME OF DELAYED,
UNDELIVERED, OR INCOMPLETE MESSAGES AND THAT
THE PROCESS OF TRANSMITTING SMS MESSAGES CAN BE
UNRELIABLE AND INCLUDE MULTIPLE THIRD PARTIES
THAT PARTICIPATE IN THE TRANSMISSION PROCESS,
INCLUDING MOBILE NETWORK OPERATORS AND
INTERMEDIARY TRANSMISSION COMPANIES.
ACCORDINGLY, EVERBRIDGE RECOMMENDS THAT SMS
MESSAGING NOT BE USED AS THE SOLE MEANS OF
COMMUNICATION IN AN EMERGENCY SITUATION.
9. INDEMNIFICATION.
9.1 By Client. Client shall defend, indemnify and hold
Everbridge harmless against any loss or damage (including
reasonable attorneys’ fees) incurred in connection with any third
party claim, suit or proceeding (“Claim”) arising out of any data
sent, posted or otherwise transmitted via the Service by Client or
Contacts, or any breach by Client of Sections 3 or 6.
9.2 By Everbridge. Everbridge shall defend, indemnify
and hold Client harmless from and against any Claim against
Client alleging that the Solution as contemplated hereunder
infringes an issued patent or other IP Right in a country in which
the Solution is provided to Client. If (x) any aspect of the Service
is found or, in Everbridge’s reasonable opinion is likely to be
found, to infringe upon the IP Right of a third party or (y) the
continued use of the Service is enjoined, then Everbridge will
promptly and at its own cost and expense at its option: (i) obtain
for Client the right to continue using the Service; (ii) modify such
aspect of the Service so that it is non-infringing; or (iii) replace
such aspect of the Service with a non-infringing functional
equivalent. If, after all commercially reasonable efforts,
Everbridge determines in good faith that options (i) - (iii) are not
feasible, Everbridge will remove the infringing items from the
Service and refund to Client on a pro-rata basis any prepaid
unused fees paid for such infringing element. The remedies set
forth in this Section 9.2 are Client’s exclusive remedy for Claims
for infringement of an IP Right. Everbridge shall have no
obligation or liability for any claim pursuant to this Section to the
extent arising from: (i) the combinations, operation, or use of the
Service supplied under this Agreement with any product, device,
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or software not supplied by Everbridge to the extent the
combination creates the infringement; (ii) the unauthorized
alteration or modification by Client of the Service; or (iii)
Everbridge’s compliance with Client's designs, specifications,
requests, or instructions pursuant to an engagement for
Everbridge Professional Services relating to the Service to the
extent the claim of infringement is based on the foregoing.
9.3 Indemnification Process. The indemnifying party’s
obligations under this Section 9 are contingent upon the
indemnified party (a) promptly giving notice of the Claim to the
indemnifying party once the Claim is known; (b) giving the
indemnifying party sole control of the defense and settlement of
the Claim (provided that the indemnifying party may not settle
such Claim unless such settlement unconditionally releases the
indemnified party of all liability and does not adversely affect the
indemnified party’s business or service); and (c) providing the
indemnifying party all available information and reasonable
assistance.
10. LIABILITY LIMITS. To the maximum extent permitted by
law, neither Party shall have any liability to the other Party for any
indirect, special, incidental, punitive, or consequential damages,
however caused, under any theory of liability, and whether or not
the Party has been advised of the possibility of such damage.
Except for its indemnification obligations under Section 9.2,
notwithstanding anything in this Agreement to the contrary, in no
event shall Everbridge’s aggregate liability, regardless of whether
any action or claim is based on warranty, contract, tort,
indemnification or otherwise, exceed amounts paid or due by
Client to Everbridge hereunder during the 12-month period prior
to the event giving rise to such liability. The foregoing limitations
shall apply even if the non-breaching party’s remedies under this
Agreement fail their essential purpose.
11. MISCELLANEOUS.
11.1 Non-Solicitation. As additional protection for
Everbridge’s proprietary information, for so long as this
Agreement remains in effect, and for one year thereafter, Client
agrees that it shall not, directly or indirectly, solicit, hire or attempt
to solicit any employees of Everbridge; provided, that a general
solicitation to the public for employment is not prohibited under
this section.
11.2 Force Majeure; Limitations. Everbridge shall not
be responsible for performance under this Agreement to the
extent precluded by circumstances beyond Everbridge’s
reasonable control, including without limitation acts of God, acts
of government, flood, fire, earthquakes, civil unrest, acts of terror,
labor problems, regional technology interruptions, or denial of
service attacks. The Service delivers information for supported
Contact paths to public and private networks and carriers, but
Everbridge cannot guarantee delivery of the information to the
recipients. Final delivery of information to recipients is dependent
on and is the responsibility of the designated public and private
networks or carriers.
11.3 Waiver; Severability. The failure of either Party
hereto to enforce at any time any of the provisions or terms of
this Agreement shall in no way be considered to be a waiver of
such provisions. If any provision of this Agreement is found by
any court or other authority of competent jurisdiction to be invalid,
illegal or unenforceable, that provision shall, to the extent
required, be deemed deleted or revised, and the remaining
provisions shall continue in full force and effect to the maximum
extent possible so as to give effect to the intent of the parties.
11.4 Assignment. Neither party may assign this
Agreement to any third party except upon the other Party’s prior
written consent, which consent shall not be unreasonably
withheld or delayed; provided, that no such consent shall be
required in the event of an assignment to an Affiliated Entity or to
a successor-in-interest to the business of the assigning Party
resulting from a merger, reorganization, or sale of all or
substantially all such Party’s assets. Notwithstanding the above,
neither Party shall assign this Agreement to any third party which
is a competitor of the other Party.
11.5 Governing Law; Attorney’s Fees. This Agreement
shall be governed and construed in accordance with the laws of
the State of California, without regard to its conflicts of laws rules.
The U.N. Convention on Contracts for the International Sale of
Goods shall not apply. The prevailing party in any action arising
out of this Agreement shall be entitled to its reasonable attorneys’
fees and costs.
11.6 Notices. Legal notices (e.g., claimed breach or
termination) to be provided under this Agreement shall be
delivered in writing (a) in person, (b) by nationally recognized
overnight delivery service, or (c) by U.S. certified or first class
mail to the other party as set forth on the signature page hereto.
All legal notices shall be deemed to have been given upon
receipt or, if under (c), three (3) business days after being
deposited in the mail. Either party may change its address by
giving notice of the new address to the other party pursuant to
this Section and identifying the effective date of such change.
Everbridge may provide all other notices to Client’s billing contact
on the Client Registration Form or, with respect to availability,
upgrades or maintenance of the Services, to the Everbridge
Support Center.
11.7 Marketing. Client consents to Everbridge
referencing Client’s name as an Everbridge Client in Everbridge
publications, its website, and other marketing materials.
11.8 Equal Employment Opportunity. Everbridge, Inc.
is a government contractor and is subject to the requirements of
Executive Order 11246, the Rehabilitation Assistance Act and
VEVRAA. Pursuant to these requirements, the Equal Opportunity
Clauses found at 41 Code of Federal Regulations sections 60-
1.4(a) (1-7), sections 60-250.4(a-m), sections 60-300.5 (1-11)
and sections 60-741.5 (a) (1-6) are incorporated herein by
reference as though set forth at length, and made an express
part of this Agreement.
11.9 Export Compliant. Neither Party shall export,
directly or indirectly, any technical data acquired from the other
pursuant to this Agreement or any product utilizing any such data
to any country for which the U.S. Government or any agency
thereof at the time of export requires an export license or other
governmental approval without first obtaining such license or
approval. Client shall not permit Users to send notifications to a
Contact in a U.S. embargoed country or in violation of any U.S.
export law or regulation.
11.10 U.S. Government End-Users. The Solutions and
related documentation are “commercial items” as defined at 48
C.F.R. 2.101, consisting of “commercial computer software” and
“commercial computer software documentation” as such terms
are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212
and 48 C.F.R. 227.7202-1 through 227.7202-4, U.S. government
customers and end-users acquire licenses to the Solutions and
related documentation with only those rights set forth herein.
11.11 General. This Agreement, including its Exhibits and
any Quote, constitutes the entire agreement between the Parties
and supersedes all other agreements and understandings
5
between the Parties, oral or written, with respect to the subject
matter hereof, including any confidentiality agreements. This
Agreement shall not be modified or amended except by a writing
signed by both Parties. ANY NEW TERMS OR CHANGES
INTRODUCED IN A PURCHASE ORDER OR OTHER
DOCUMENT ARE VOID AND OF NO FORCE OR EFFECT.
EVERBRIDGE’S ACKNOWLEDGEMENT OF RECEIPT OF
SUCH DOCUMENT OR ACCEPTANCE OF PAYMENT SHALL
NOT CONSTITUTE AGREEMENT TO ANY TERMS OTHER
THAN THOSE SET FORTH IN THIS AGREEMENT. There are
no third party beneficiaries to this Agreement. Any right,
obligation or condition that, by its express terms or nature and
context is intended to survive the termination or expiration of this
Agreement, shall survive any such termination or expiration
hereof. This Agreement, and any other document referencing
and governed by this Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
which together shall constitute the same agreement. Each Party
agrees to be bound by its digital or electronic signature, whether
transmitted by fax machine, in the form of an electronically
scanned image (e.g., in .pdf form), by email, or by other means of
e-signature technology, and each Party agrees that it shall
accept the signature of the other Party transmitted in such a
manner.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
EVERBRIDGE, INC.
By:
Print Name:
Title:
Date:
Address:
155 North Lake Avenue
Suite 900
Pasadena, CA 91101
For legal notice:
Attention: Legal Department
CLIENT:
By:
Print Name:
Title:
Date:
Client’s address for legal notices:
Attn:
Client’s address for billing:
Attn:
Email for billing:
Telephone number:
6
EXHIBIT A
Additional Business Terms
The following additional business terms are incorporated by reference into the Agreement as applicable based on the
particular products and services described on the Quote.
Nixle® Branded Products:
1. Client grants to Everbridge a non-exclusive, royalty free, worldwide and perpetual right and license (including
sublicense) to (a) use, copy, display, disseminate, publish, translate, reformat and create derivative works from
communications Client sends through the Service or www.nixle.com for public facing communications to citizens and
other public groups (collectively, “Communications”), (b) use and display Client’s trademarks, service marks and
logos, solely as part of Communications to Contacts or to and on other websites where Everbridge displays your
Communications, and for marketing the Services, and (c) place a widget on Client’s website in order to drive Contact
registrations. Client further acknowledges and agrees that all personal information from public users registering through
the Nixle branded websites is owned expressly by Everbridge and such information will be governed by the Privacy
Policy.
Everbridge Branded Products:
1. Data Feeds. Notwithstanding anything to the contrary in this Agreement, to the extent that Client has purchased or
accesses Data Feeds, such feeds are provided solely on an “AS IS” and “AS AVAILABLE” basis and Everbridge
disclaims any and all liability of any kind or nature resulting from any inaccuracies or failures with respect to such Data
Feeds. The sole and exclusive remedy for any failure, defect, or inability to access the content of such Data Feed shall
be to terminate the Data Feed with no further payments due. “Data Feed” means data content licensed or provided by
third parties to Everbridge and supplied to Client in connection with the Solution (e.g., real time weather system
information and warnings, 911 data, third party maps, and situational intelligence).
2. Incident Management/IT Alerting. For Clients purchasing the Incident Management or IT Alerting Service, unless
designated as unlimited: (a) Clients may only designate the number of Users set forth on the Quote, and such individuals
shall only have the access rights pursuant to such designation and role; (b) Incident Administrators shall have the ability
to build incident templates, report on incidents, and launch incident notifications; (c) Incident Operators shall only have
the ability to launch or manage incidents; (d) IT Alerting Users shall have the ability to build, launch or manage incidents
as well as participate in an on-call schedule to receive IT outage notifications, and (e) Client shall be provided the
number of incident templates purchased pursuant to the Quote. “Incident Administrator” means an individual who is
authorized by Client as an organizational administrator for the Incident Management or IT Alerting Solution. “Incident
Operator” means an individual who is authorized by Client as an operator of the Incident Management or IT Alerting
Solution.
3. Secure Messaging. For Clients purchasing peer to peer secure messaging solutions (“Secure Messaging”), Everbridge
shall comply with all applicable privacy laws including, the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”),”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”). Any Business
Associate Agreement executed in connection with this Agreement shall be incorporated and made a part of this
Agreement. Client acknowledges and agrees that Secure Messaging solutions are intended to deliver non-critical, non-
emergency messages between users as a convenience to facilitate communications and are not intended for or suitable
for use in situations where a failure or time delay of, or errors or inaccuracies in, the content, data or information provided
through the services could lead to death, personal injury or property damage. The P2P Solutions are provided on an “AS
IS” and “AS AVAILABLE” basis. Technical difficulties or failures may occur at any time, and the solutions are used at
your sole risk. The sole remedy for a failure of the P2P Solution is to terminate such services with no further payments
due.
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EXHIBIT B
IPAWS- CMAS/WEA Addendum
This addendum is incorporated by reference into the Agreement as applicable based on the purchase of IPAWS-
CMAS/WEA services on the Quote.
1. IPAWS Authorization: Client represents and warrants to Everbridge that any employee, agents, or representatives of Client
who access IPAWS-OPEN using Client’s credentials provided by FEMA (each, an “IPAWS User”), are authorized by
FEMA to use IPAWS-OPEN, have completed all required training, and Client has executed an IPAWS Memorandum of
Agreement (“MOA”) with FEMA. Client shall contact Everbridge immediately upon any change in Client or any IPAWS
User’s right to access IPAWS-OPEN. Client shall only access IPAWS-OPEN using its designated credentials and FEMA
issued digital certificate (“Digital Certificate”). Client acknowledges and agrees that Everbridge shall not have access to its
credentials and that Client assumes full responsibility for maintaining the confidentiality of any credentials issued to it.
Client shall be solely responsible for any and all claims, damages, expenses (including attorneys’ fees and costs) that arise
from any unauthorized use or access to IPAWS-OPEN.
2. Credentials: Client shall load and maintain within its Everbridge account Organization, its Digital Certificate, COG ID, and
Common Name. Client authorizes and requests Everbridge to use the foregoing stored information to connect Client to
IPAWS-OPEN.
3. Messaging: Client acknowledges and agrees that: (i) upon submission of messages to IPAWS-OPEN, Everbridge shall
have no further liability for the distribution of such message, and that the distribution through IPAWS-OPEN, including, but
not limited to, delivery through the Emergency Alert System or the Commercial Mobile Alert System, is in no way
guaranteed or controlled by Everbridge; (ii) Everbridge shall not be liable as a result of any failure to receive messages
distributed through IPAWS-OPEN; (iii) IPAWS may include additional features not supported through the Everbridge
system, and Everbridge shall not be required to provide such additional features to Client; and (iv) Client shall be solely
responsible and liable for the content of any and all messages sent through IPAWS-OPEN utilizing its access codes.
4. Term: Client acknowledges and agrees that access to IPAWS-OPEN shall be available once Client has provided
Everbridge with the Digital Certificate and any other reasonably requested information to verify access to the system. Upon
termination of the Agreement access to IPAWS-OPEN shall immediately terminate. In addition, Everbridge may
immediately terminate, without liability, access to IPAWS-OPEN, if Client breaches this Addendum, the MOA, or FEMA
changes the IPAWS-OPEN system so that it materially change the business terms and/or feasibility for Everbridge to
provide such access.