HomeMy WebLinkAbout16- Software as a Service Agreement - FATHOM - Customer Water Usage Data PresentmentSOFTWARE AS A SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this� day of LICy4 im.be-j-, 2016, by and
between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and
existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana,
with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as "City," and,
FATHOM Water Management Inc., 21410 N. 19" Avenue, Phoenix, Arizona, 85027, hereinafter referred
to as "FATHOM" or "Contractor."
WHEREAS, FATHOM owns and operates certain proprietary software, technology, and
infrastructure, known as "FATHOM" for the support and optimization of regulated water and wastewater
utility management.
WHEREAS, City wishes to access and use the FATHOM Platform (defined in Exhibit B) on a
Software as a Service ("SaaS") basis for its utility services and to receive training from FATHOM on the
use of the FATHOM Platform, and FATHOM is willing to grant such access and provide such training
subject to the terms and conditions set forth herein. The terms utilized in this Agreement are defined in
Exhibit B.
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services
described in the Scope of Services attached hereto as "Exhibit A" and by this reference made
a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and will
terminate two (2) years after the date the subscription product and services are available to
City's end users. ("Initial Term"), unless earlier terminated as set forth herein. Notice of the
availability of the products and services to City's end users shall be submitted in writing at
least one week before the date of availability.
3. Scope of Work: Contractor will perform the work and provide the services in accordance with
the requirements of the Scope of Services set forth in Exhibit A attached and incorporated
herein by reference. For conflicts between this Agreement and the Scope of Services, unless
specifically provided otherwise, the Agreement governs. The Scope of Services will include
the provision of access to and use of certain hosted software, which will be made available
pursuant to the terms attached hereto as "Exhibit B."
4. City's Representations:
a. City agrees to pay Contractor the amount specified in the Scope of Services pursuant
to Exhibit A. Any alteration or deviation from the described services that involves
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additional costs above the Agreement amount will be performed by Contractor after
written request by the City, and will become an additional charge over and above the
amount listed in the Scope of Services. The City must agree in writing upon any
additional charges.
b. City will be responsible for obtaining and maintaining at its expense all the necessary
computer hardware, software, modems, connections to the internet and other items
required for Licensee's access and use of the FATHOM Platform, Website, and User
Interface.
c. City shall provide the Licensee Content as mutually agreed upon between the parties.
5. Contractor's Representations: Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws,
ordinances, rules, and regulations that in any manner may affect cost, progress or
performance of the Scope of Services.
b. Contractor will host and maintain the Service in accordance with the Service Level
Agreement attached hereto as `Exhibit C."
i. FATHOM will host and maintain the FATHOM Platform on servers operated
and maintained by or at the direction of FATHOM or otherwise. FATHOM
may in its sole discretion modify, enhance or otherwise change the FATHOM
Software.
ii. FATHOM will host and maintain the User Interface, and may provide City
access to the User Interface pursuant to a password protected user account.
FATHOM reserves the right to periodically change issued passwords.
FATHOM will provide prompt notice to Licensee of any such password
changes.
iii. FATHOM will provide all services and products set forth in this Agreement.
c. Contractor has the experience and ability to perform the services required by this
Agreement; that it will perform said services in a professional, competent and timely
manner and with diligence and skill; that it has the power to enter into and perform this
Agreement and grant the rights granted in it; and that its performance of this Agreement
shall not violate any federal, state and municipal laws. The City will not determine or
exercise control as to general procedures or formats necessary to have these services
meet this warranty.
d. "City Data" means water meter data and any other data provided by City for purposes
of this Agreement. The parties agree that as between them, all rights including all
intellectual property rights in and to City Data shall remain the exclusive property of
City. Contractor shall have a limited, nonexclusive license to use City Data as provided
in this Agreement solely for purposes of performing its obligations hereunder. This
Agreement does not give a party any right, implied or otherwise, to the other's data,
content, or intellectual property, except as expressly stated in this Agreement.
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e. During the term of this Agreement, Contractor shall maintain a formal security
program materially in accordance with industry standards that is designed to:
i. ensure the security and integrity of the Data;
ii. protect against threats or hazards to the security or integrity of the Data; and
iii. prevent unauthorized access to the Data.
Such security program will conform to industry standards, and will be no less
materially protective than the security measures described in Contractor's most
recently completed SSAE 16 Type II Service Organization Control 1 (SOC1) audit
reports or industry -standard successor reports. Upon request, Contractor will provide
the City a copy of the most current audit report.
f. Contractor will use City Data only for the purpose of fulfilling its obligations under
this Agreement, and will not share such data with or disclose it to any third party
without the prior written consent of the City or as otherwise required by law.
g. Contractor will take commercially reasonable methods, including regular data integrity
audits, to protect the City Data against deterioration or degradation of data quality.
h. Contractor may process and store the City Data only in the United States. Contractor
shall provide City with prior written notice of any proposed changes to the locations
where the City Data is processed or stored, and such changes shall be subject to City's
prior written approval.
i. Contractor will (i) immediately notify the City of any subpoenas, warrants, or other
legal orders, demands or requests seeking the City Data; (ii) consult with the City
regarding Contractor's response; (iii) reasonably cooperate with the City in connection
with efforts by the City to contest the legal order, demand or request, at the City's
expense; and (iv) upon the City's request, provide the City with a copy of Contractor's
response.
j. Immediately upon becoming aware of a data breach, or of circumstances that may have
resulted in unauthorized access to the City Data, Contractor will notify City, fully
investigate the incident, and report to the City with a plan to mitigate any damage
caused by the incident.
k. At all times during the term of this Agreement, Contractor will maintain a disaster
recovery plan for the FATHOM Platform (as defined in Exhibit B) and its operations
(the "Disaster Recovery Plan"). The Disaster Recovery Plan shall be tested and
reviewed by Contractor on at least an annual basis and Contractor shall remedy the
cause of any failures revealed by such tests promptly in light of the severity of the
failure. The Contractor will notify the City upon any material modification to the
Disaster Recovery Plan. In the event Contractor moves the City's production
environment of the FATHOM Platform from a production data center to a disaster
recovery data center, Contractor will promptly (and in all cases within 24 hours) inform
the City of such move, and will provide the City with reasonable support to confirm
that the City and Contractor are able to establish appropriate connectivity to the disaster
recovery data center.
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6. Warranties FATHOM warrants that: (i) the software will perform according to Contractor's
documentation and this Agreement; (ii) that the software documentation is complete and
accurate; (iii) the FATHOM Platform will substantially conform to all applicable
documentation and agreements; and (iv) the Services will be performed in a professional and
workmanlike manner in accordance with industry best practices.(v) Contractor will perform
work in accordance with applicable law; (vi) Contractor will not share or disclose City data in
any manner to a third party without first obtaining the City's prior written consent; the software
will be free from viruses and other destructive code; (vii) Neither the software nor the use of
Contractor's services will infringe the patents, copyrights or other intellectual property rights
of any third party.
7. Disclaimers. Except as provided in this Section and the Agreement, and to the maximum
extent permitted by applicable law, the FATHOM Platform and all related information,
technology, and services provided by or on behalf of FATHOM are provided "as is," "as
available," and without any representations or warranties of any kind, express or implied, and
FATHOM expressly disclaims any implied warranties of merchantability, fitness for a
particular purpose In addition, FATHOM does not warrant that access to the FATHOM
Platform will be uninterrupted or error free, that the FATHOM Platform will meet City's or
Customers' needs, or that data will not be lost. Any content downloaded or otherwise obtained
through the use of the FATHOM Platform is downloaded at City's and Customers' own risk
8. Ownership.
a. FATHOM's Ownership Rights. Subject only to the limited license expressly granted
under these Terms, FATHOM shall retain all right, title, and interest in and to the
FATHOM Platform (and all parts thereof, excluding City Content) and FATHOM
Data, and all Intellectual Property Rights therein. Nothing in these Terms will confer
on City or Customers any right of ownership or interest therein. To the extent City has
or obtains any right, title, or interest in the FATHOM Platform (or any part thereof,
excluding City Content) or the FATHOM Data, City hereby assigns, and agrees to
assign, without further consideration, to FATHOM all such right, title, and interest City
may have or obtain.
b. City's Ownership Rights. Subject only to the limited license expressly granted
hereunder, as between City and FATHOM, City shall retain all right, title and interest
in and to the City Content, and all Intellectual Property Rights therein. Nothing in these
Terms will confer on FATHOM any right of ownership or interest in the City Content,
or the Intellectual Property Rights therein.
9. License Grants; Restrictions.
a. License from FATHOM. Subject to the terms and conditions of these Terms,
FATHOM hereby grants City a limited, personal, non -transferable license during the
Term to grant to it and its Customers and end users the rights to: (i) access and use the
Software and FATHOM Content via the FATHOM Platform solely in the manner
contemplated by these Terms; (ii) use the FATHOM Data solely as necessary to use
the features and functionality of the FATHOM Platform; (iii) access and use the User
Interface as may be required to use the Software and FATHOM Content via the
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FATHOM Platform; and (iv) permit Customers to exercise the rights set forth above
in subsections (i) through (iii) (inclusive).
b. License to FATHOM. City hereby grants FATHOM a worldwide, non-exclusive,
royalty -free, fully paid-up license to use, reproduce, electronically distribute, transmit,
have transmitted, display, store, archive, and make derivative works of the City
Content in order to provide the FATHOM Platform to the City and its Customers.
FATHOM may not sublicense or resell the City Content or any component thereof.
c. License Restrictions. City shall not, and shall not permit any third party, including
without limitation any Customer, to: (i) use the FATHOM Data or the FATHOM
Platform (or any part thereof) except to the extent permitted in Section 9(A); (ii)
modify or create any derivative work of any part of the FATHOM Data or the
FATHOM Platform without written approval; (iii) market, sublicense, publish,
distribute, reproduce, resell, assign, transfer, rent, lease, or loan the FATHOM Data or
the FATHOM Platform (or any part thereof); (iv) reverse engineer, disassemble, or
otherwise attempt to gain access to the source code of all or any portion of the
FATHOM Platform; or (v) use the FATHOM Data or the FATHOM Platform (or any
part thereof) for commercial time-sharing or service -bureau use.
d. Use of City Data. Notwithstanding anything to the contrary in these Terms, FATHOM
may use City Data for the purposes of: (i) providing the FATHOM Platform and the
Services to City and its Customers; (ii) for FATHOM's internal research and
development purposes; (iii) enforcing its rights under these Terms; and (iv) on an
aggregated and anonymized basis, create FATHOM Data provided that FATHOM
explains how the data will be used and receives written permission City prior to the
use of all said aggregated and anonymized data.
e. Reservation of Rights. FATHOM reserves all rights to the FATHOM Data and the
FATHOM Platform (and all parts thereof) not otherwise expressly granted in this
Section 9.
10. Support and Training Services.
a. Implementation Support. FATHOM will provide the implementation support
services set forth in Exhibit A.
b. General Support. FATHOM will provide the general support services set forth in
Exhibit A.
11. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an
independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City's
personnel policies handbook and may not be considered a City employee for workers'
compensation or any other purpose. Contractor is not authorized to represent the City or
otherwise bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation Act,
Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers' compensation coverage for all members and
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employees of Contractor's business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
12. Indemnity/Waiver of Claims/Insurance: To the fullest extent permitted by law, Contractor
agrees to defend, indemnify, and hold harmless the City, its agents, representatives, employees,
and officers (collectively referred to for purposes of this Section as the City) from and against
any and all third -party claims, demands, actions, fees and costs (including reasonable attorney's
fees and court costs), losses, expenses, liabilities or damages of whatever kind or nature
connected therewith and without limit and without regard to the cause or causes thereof or the
negligence of any party or parties that may be asserted against, recovered from or suffered by
the City occasioned by, growing or arising out of or resulting from a third -party suit,
proceeding, or action arising from: (i) the negligent, reckless, or intentional misconduct of the
Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor's
agents.
Contractor shall defend, indemnify, and hold harmless the City from and against any third -
party claims, demands, actions, fees and costs (including reasonable attorney's fees and court
costs), losses, expenses, liabilities or damages of whatever kind alleging that the authorized use
of the FATHOM Platform under this Agreement infringes, misappropriates or violates any
intellectual property right of a third party. Such obligations shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The
indemnification obligations of this Section must not be construed to negate, abridge, or reduce
any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to
such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor's
applicable insurance policies required below the indemnitee shall be entitled to recover
reasonable costs and attorney fees incurred in asserting its right to indemnification or defense
but only if a court of competent jurisdiction determines the Contractor was obligated to defend
the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s)
thereof.
In connection with the indemnification obligations set forth herein, the indemnifying party's
indemnification obligations will be conditioned upon the indemnified party providing the
indemnifying party: (a) written notice of any claim for which indemnification is sought within
thirty (30) days; (b) sole control over the defense and settlement of the claim (provided that
any settlement that places any material obligation on the indemnified party or requires an
admission of liability from such indemnified party shall require such indemnified party's prior
written approval, not to be unreasonably withheld, conditioned, or delayed); and (c) reasonable
cooperation, at the indemnifying party's request and expense, in such defense and settlement.
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a. Remedies. In the event any portion of the FATHOM Platform is held or believed by
FATHOM, or any portion of the City Content is held or believed by the City, to infringe
intellectual property rights of any third party (such portion to be deemed the
"Infringing Materials") in any place where the FATHOM Platform is used or
accessed, then in addition to any other rights in this Section 12, FATHOM (where the
Infringing Materials are the FATHOM Platform) or City (where the Infringing
Materials are the City Content) shall, at its sole expense and at its option: (i) obtain
from such third party the right for the other party to continue to use the Infringing
Materials; or (ii) modify the Infringing Materials to avoid and eliminate such
infringement or misappropriation, as the case may be; or (iii) upon mutual agreement
with the other party, remove and disable the Infringing Materials; or (iv) if none of the
foregoing remedies is commercially feasible, terminate these Terms.
b. Sole Remedy for Intellectual Property Violations. This Section 12 contains each
party's sole and exclusive remedy, and each party's entire liability, with respect to
infringement or alleged infringement of third party Intellectual Property Rights relating
to the FATHOM Platform and the subject matter of these Terms.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor's
expense secure insurance coverage through an insurance company or companies duly
licensed and authorized to conduct insurance business in Montana which insures the
liabilities and obligations specifically assumed by the Contractor in this Section. The
insurance coverage shall not contain any exclusion for liabilities specifically assumed
by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the
City without limit and without regard to the cause therefore and which is acceptable to
the City and Contractor shall furnish to the City an accompanying certificate of
insurance and accompanying endorsements in amounts not less than as follows:
i. Workers' Compensation — statutory;
ii. Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
iii. Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
iv. Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate; and
v. Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its
officers, agents, and employees, shall be endorsed as an additional or named insured
on a primary non-contributory basis on both the Commercial General and Automobile
Liability policies. The insurance and required endorsements must be in a form suitable
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to City and shall include no less than a thirty (30) day notice of cancellation or non-
renewal. The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work. Contractor shall notify City within two (2) business
days of Contractor's receipt of notice that any required insurance coverage will be
terminated or Contractor's decision to terminate any required insurance coverage for
any reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
13. Confidentiality.
a. During the Term each party shall treat as confidential all Confidential Information of
the other, shall not use such Confidential Information except as set forth in these
Terms, and will not disclose such Confidential Information to any third party except
as expressly permitted herein without the disclosing party's written consent. The
receiving party shall use at least the same degree of care which it uses to prevent the
disclosure of its own confidential information of like importance to prevent the
disclosure of the disclosing party's Confidential Information, but in no event less than
reasonable care. The receiving party shall promptly notify the disclosing party of any
actual or suspected misuse or unauthorized disclosure of any of the Confidential
Information.
b. Notwithstanding the foregoing, the obligations set forth in this Section 13 shall not
apply with respect to any information to the extent that it is: (A) (B) is already part of
the public knowledge or becomes part of the public knowledge after the time of
disclosure other than as a result of any improper action by the receiving party; (C) is
approved in writing by the disclosing party; (D) is required to be disclosed by
applicable legal authority provided that, if practicable, adequate notice and assistance
is given by the receiving party to the disclosing party for the purpose of enabling the
disclosing party to prevent and/or limit the disclosure; or (E) is independently
developed by either party without use of the Confidential Information from the other
party.
14. Force Majeure. Other than for payment of money, a party shall be excused from any delay or
failure in performance hereunder due to any labor dispute, government requirement, internet
congestion or breakdown, or any other cause beyond its reasonable control. Such party shall
use commercially reasonable efforts to cure any such failure or delay in performance arising
from such a condition, and shall timely advise the other party of such efforts.
15.
a. Termination for Cause:
i. If a party refuses or fails to timely do the work, or any part thereof, or fails to
perform any of its obligations under this Agreement, or otherwise materially
breaches any terms or conditions of this Agreement, the other party may, by
written notice, terminate this Agreement, effective immediately, if the other
party has failed to cure such material breach or default within thirty (30) days
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of its receipt of a written notice describing the breach or default in reasonable
detail and demanding a cure.
ii. In the event of a termination pursuant to this Section 15, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
iii. Any termination provided for by this Section 15 shall be in addition to any
other remedies to which the terminating party may be entitled under the law or
at equity.
b. Termination for City's Convenience:
i. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City
may terminate this Agreement by written notice to Contractor ("Notice of
Termination for City's Convenience"). The termination shall be effective in
the manner specified in the Notice of Termination for City's Convenience and
shall be without prejudice to any claims that the City may otherwise have
against Contractor.
ii. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease
performance under this Agreement and make every reasonable effort to refrain
from continuing work, incurring additional expenses or costs under this
Agreement and shall immediately cancel all existing orders or contracts upon
terms satisfactory to the City. Contractor shall do only such work as may be
necessary to preserve, protect, and maintain work already completed or
immediately in progress.
iii. In the event of a termination pursuant to this Section 15, Contractor is entitled
to payment only for those services Contractor actually rendered on or before
the receipt of the Notice of Termination for City's Convenience.
iv. The compensation described in Section 15.b(iii) is the sole compensation due
to Contractor for its performance of this Agreement. Contractor shall, under
no circumstances, be entitled to claim or recover consequential, special,
punitive, lost business opportunity, lost productivity, field office overhead,
general conditions costs, or lost profits damages of any nature arising, or
claimed to have arisen, as a result of the termination.
v. Upon termination or expiration of this Agreement, Contractor will ensure that
all City Data is transferred to the City or a third party designated by the City
securely, within a reasonable period of time, and without significant
interruption in service, in the format specified by the City at the time of
termination or expiration of this Agreement. Contractor will ensure that the
City will have reasonable access to the City Data during the transition.
16. Limitation on Damages:
a. In the event of a claim for damages by a party under this Agreement, each party's
damages shall be limited to contract damages and each party hereby expressly waives
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any right to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. Each party's aggregate liability under this Agreement shall in no event exceed the
amounts paid by City to Contractor hereunder in the twelve (12) months preceding the
event that gave rise to the liability.
c. The foregoing limitations set forth in this Section 16 shall not apply to the following:
(i) a party's breach of its confidentiality obligations; or (ii) a party's negligence, gross
negligence, willful misconduct, or fraud or (iii) a party's indemnification obligations
under Section 12.
17. Representatives:
a. City's Representative: The City's Representative for the purpose of this Agreement
shall be Lain Leoniak (Water Conservation Specialist) or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication
or submission to City is required by this Agreement, such communication or
submission shall be directed to Lain Leoniak as the City's Representative and
approvals or authorizations shall be issued only by such Representative; provided,
however, that in exigent circumstances when City's Representative is not available,
Contractor may direct its communication or submission to other designated City
personnel or agents as listed above and may receive approvals or authorization from
such persons.
b. Contractor's Representative: The Contractor's Representative for the purpose of this
Agreement shall be Jason Bethke for contractual items and Craig Dowell for any
project -related items, or such other individual as Contractor shall designate in writing.
Whenever direction to or communication with Contractor is required by this
Agreement, such direction or communication shall be directed to Contractor's
Representative; provided, however, that in exigent circumstances when Contractor's
Representative is not available, City may direct its direction or communication to other
designated Contractor personnel or agents.
18. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances,
rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees
and charges in connection therewith.
19. Laws and Regulations: Contractor shall comply fully with all applicable state and federal
laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable
City, County, and State building and electrical codes, the Americans with Disabilities Act, and
all non-discrimination, affirmative action, and utilization of minority and small business
statutes and regulations, in each case in its performance of its obligations under this Agreement.
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20. Nondiscrimination: The Contractor will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal anti -discrimination laws,
regulations, and contracts. The Contractor will not refuse employment to a person, bar a person
from employment, or discriminate against a person in compensation or in a term, condition, or
privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital
status, national origin, actual or perceived sexual orientation, gender identity, physical or
mental disability, except when the reasonable demands of the position require an age, physical
or mental disability, marital status or sex distinction. The Contractor shall be subject to and
comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code,
and all regulations promulgated thereunder. The Contractor shall require these
nondiscrimination terms of any sub -Contractors providing services under this agreement.
21. Intoxicants; Drug and Alcohol Regulations/Safety and Training: Contractor shall not
permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City
property or in the performance of any activities under this Agreement. Contractor shall comply
with its responsibilities and obligations under Contractor's drug and alcohol policies and
related testing. City shall have the right to request proof of such policies and compliance and
Contractor shall be obligated to furnish such proof upon request.
The Contractor shall be responsible for instructing and training the Contractor's employees and
agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible
for instructing his employees and agents in safe work practices.
22. Modification and Assignability: This Agreement may not be enlarged, modified or altered
except by written agreement signed by both parties hereto. Neither party may assign, transfer,
or delegate this Agreement (in whole or in part) or any of its rights or obligations hereunder
without the prior written consent of the other party; provided that Contractor may assign this
Agreement without such consent to a successor -in -interest in connection with a change of
control (whether by merger, sale of stock or assets, consolidation, reorganization, or otherwise).
Any non -permitted assignment will be void and of no effect. Any subcontractor or assignee
will be bound by all of the terms and conditions of this Agreement.
23. Reports/Accountability/Public Information: Contractor agrees to provide documentation as
requested by the City demonstrating Contractor's compliance with the requirements of this
Agreement. During the Term and for one (1) year thereafter, Contractor shall, upon reasonable
advance notice and no more than one (1) time per calendar year, allow the City, its auditors,
and other persons authorized by the City to inspect its books and records for the purpose of
verifying that the reimbursement of monies distributed to Contractor pursuant to this
Agreement was used in compliance with all applicable provisions of federal, state, and local
law. Each Party shall not issue any statements, releases or information for public dissemination
without prior approval of the other Party.
24. Non -Waiver: A waiver by either party any default or breach by the other party of any terms or
conditions of this Agreement does not limit the other party's right to enforce such term or
conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
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25. Attorney's Fees and Costs: That in the event it becomes necessary for either Party of this
Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or
to give any notice required herein, then the prevailing Party or the Party giving notice shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house
counsel to include City Attorney.
26. Taxes: City is exempt from all taxes, excises, and duties of any kind or nature arising under or
in connection with this Agreement and the services provided hereunder. Each party shall make
all appropriate employee withholdings.
27. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents, employees, or
representatives shall be resolved first by negotiation between senior -level personnel
from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator
to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the date the
dispute was first raised, then such dispute may only be resolved in a court of competent
jurisdiction in compliance with the Applicable Law provisions of this Agreement.
28. Survival: All provisions which, by their terms or nature, should survive the termination or
expiration of this Agreement, shall survive any such termination or expiration for the maximum
period allowed under applicable law. Upon termination or expiration of this Agreement, all
licenses granted hereunder shall terminate.
29. Headings: The headings used in this Agreement are for convenience only and are not be
construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs
to which they refer.
30. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance
thereof shall continue in effect.
31. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws
of the State of Montana.
32. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal
representatives, successors, and assigns of the parties.
33. No Third -Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does
not constitute a third -party beneficiary agreement, and may not be relied upon or enforced by
a third party.
34. Counterparts: This Agreement may be executed in counterparts, which together constitute
one instrument.
35. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement
of the parties. Covenants or representations not contained therein or made a part thereof by
reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made
prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically
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made a part of this Agreement by reference.
36. Extensions: At the conclusion of the Initial Term (or any subsequent Renewal Term), the
Agreement shall automatically renew for additional renewal terms of one year at the then -current
price FATHOM charges for access to and use of the FATHOM Platform (each a "Renewal
Term"), unless either Party gives written notice of non -renewal at least thirty (30) days prior to
the expiration of the then -current term. The Initial Term and any Renewal Terms are collectively
referred to herein as the "Term." In no case, however, may this Agreement run longer than three
years.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first
above written.
CITY OF BOZEMAN, MONTANA
Chris Kukulski, City Manager
Officer
APPROVED AS TO FORM:
By
Greg S ' an, Bozeman Ciiy Attorney
FATHOM WATER MANAGEMENT, INC.
Print Name: Jason Bethke
Print Title: President and Chief Growth
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EXHIBIT A
SCOPE OF SERVICES
1. Introduction
This document outlines the tasks to be completed by FATHOM Water Management, Inc.,
(hereinafter "Contractor") to develop and implement a customized web based water customer
presentment and software package for the City of Bozeman's Water customers for the City of
Bozeman, Department of Public Works (hereinafter "City"), 20 East Olive Street Bozeman,
Montana 59715 during the Term of the Agreement.
Il. Description
The City requires a firm with the skills and expertise to educate residential water customers
about their individual water usage and how they compare to those in their area in terms of
average and efficient usage. It also provides key support for the Water and Sewer Operations
and Customer Service Representatives regarding alerting customers of leaks and high flows in
real time.
Goal: To empower customers to control their water usage by providing easy access to water
usage data to achieve the water conservation goal set forth in the Integrated Water Resources
Plan and to support Water Operations to alert customers of potential leaks in real time.
III. Proposed Scope of Work
Task One: Project Management
ment
Contractor shall, in coordination with the City, develop a Project Plan and prepare a
Communications Plan. The Communication Plan will include but not be limited to weekly
status report from Contractor to City and phone calls on an as -needed basis. This Task shall be
completed and approved by City occur within thirty (30) days from the date of execution of the
contract.
Task Two: Information Gathering
City is to provide Contractor with data including:
• Current meter read collection method(s) and manufacturers
• Sample Read Order Files for all cycles, including file format and specifications
• Sample EBP File, including file format and specifications
• Sample Kiosk File, including file format and specifications
• Customer/premise data export from CIS
• Historical data extract (if available)
• Unique identifier across interfaces
• Utility specific information, including logos, colors, contact information
• User lists and roles
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Task Three: Configuring of FATHOM PRIME
After receipt of the information outlined above, Contractor shall:
• Establish FATHOM Prime instance
• Geocode customer/premise data (if needed)
• Configure third party interfaces/APIs
• Load City data including historical data
• Brand FATHOM Prime with City logo, colors and contact information
• Setup users and role security
Task Four: Configure of FATHOM U2You
After FATHOM Prime is configured, Contractor shall:
• Establish FATHOM U2Y0u instance
o Hardware and instance installation
o Operating system installation
o Software installation
o Networking and storage configuration
o System management integration and configuration
• Apply utility specific information including logos, contact information, websites
and additional links and all City specific assumptions and methodologies for
customer to customer water usage data comparison and to reconcile said
methodologies with existing City data and processes for customer water usage data
comparison.
• Setup login and CSR accounts
Task Five: Testing
In consultation with City, and concurrent with configuring FATHOM Prime and FATHOM
U2You, Contractor shall:
• Confirm successful and accurate transfer of AMI data from head end system
(if applicable)
• Confirm successful and accurate transfer of manual/AMR data (if applicable)
• Confirm successful and accurate generation of bill file
• Confirm accurate consumption displayed in U2You
Task Six: Trainings
In coordination with City, over the course of two to three business days, Contractor shall:
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• Provide user training for City
• Provide training documentation to City for reference
The trainings shall be held on site at location selected by City and facilitated by a member of
Contractor's implementation and support staff. Contractor shall engage their City Success
Team to facilitate communication and how to documentation for customers.
FATHOM will provide additional training upon request of the City. Any training related to
changes, modification and updates to any product elements that materially impact City's interface will
be provided via web conferencing tools to the City at no charge for the first year of the Initial Term.
Any additional training either in terms of scope, term or location will be considered an additional
service and may be subject to additional fees.
Task Seven: Trials Agenda and User Acceptance
In consultation with the City, for one week, Contractor shall provide client user acceptance
testing and documentation for completion and signoff.
All Tasks set forth above shall be completed on or before April 1, 2017.
Year One Costs shall not exceed $48,000.00
Year Two Costs shall not exceed $36,000.00
FEESCHEDULE
This schedule defines the fees to be paid by City to FATHOM under this Agreement. All payments shall
be made in U.S. dollars in immediately available funds, and are non-refundable.
1. Implementation Fee.
The Implementation Fee is a one-time fee based and will be invoiced upon execution of the Agreement.
Payment due from City within thirty (30) days of City's receipt of the invoice from FATHOM.
FATHOM MODULE
FATHOM Prime
FATHOM U2You—Account Management,
Presentment & Mobile
TOTAL
*Based on 12,000 meters
2. Software as a Service Fees.
LIST PRICE, SPECIAL TOTAL ONE-TIME
PER METER DISCOUNT IMPLEMENTATION
FEE*
$1.00 50% $6,000
$1.00 50% $6,000
$2.00 50%
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$12,000
The Software as a Service Fees will be billed annually. Payment for the first year of the term will be
invoiced upon execution of the Agreement, with payments for subsequent years of the Term invoiced
annually thereafter.
LIST PRICE,
TOTAL ANNUAL
FATHOM MODULE PER METER
SAAS FEE*
PER YEAR
FATHOM Prime $1.50 $18,000
FATHOM WyOu—Account Management, $1.50
Presentment & Mobile $18,000
TOTAL $3.00 $36,000
*Based on 12,000 meters
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EXHIBIT B
SOFTWARE AS A SERVICE LICENSE TERMS
The terms utilized in this Agreement are defined in Exhibit B.
Definitions.
A. "Confidential Information" means any information disclosed by either party pursuant to
these Terms that is (i) is in written, graphic, machine readable or other tangible form and is marked
"Confidential," "Proprietary" or in some other manner to indicate its confidential nature, or (ii) in the case
of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form,
marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty
days, or (iii) under the circumstances should in good faith be considered to be confidential. Confidential
Information includes, without limitation, information related to: research, product plans, products,
developments, inventions, processes, designs, markets, business plans, agreements with third parties,
services, customers, marketing or finances of either party, the content or existence of any negotiations, and
pricing. Notwithstanding the foregoing, all technology or proprietary information underlying the FATHOM
Data and the FATHOM Platform, including without limitation any and all scripts, programming code, and
algorithms related thereto, shall be deemed Confidential Information of FATHOM, and all City Data and
City Content shall be deemed Confidential Information of City, without any need for designating the same
as confidential or proprietary.
B. "City Content" means any content uploaded or made available by City (or Customers) via
the FATHOM Platform, which may include City Data.
C. "Customer" means a customer of City who is also an end-user of the FATHOM Platform.
D. "City Data" has the meaning set forth in the Agreement.
E. "Developments" means the collective ideas, know-how, or techniques developed or
conceived by FATHOM as a result of providing the FATHOM Platform to City, including without limitation
any derivative works, improvements, enhancements and/or extensions made to the Fathom Data and/or the
FATHOM Platform, as well as all suggestions, comments, or other feedback provided by City or Customers
related thereto or any other Confidential Information of FATHOM, and all Intellectual Property Rights
therein and thereto throughout the world.
F. "FATHOM Content" means all content, including without limitation data, information,
structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files
and/or text, contained in the FATHOM Platform (except for City Content).
G. "FATHOM Data" means all data generated by the FATHOM Platform, including without
limitation, service and usage data, and aggregated, anonymized summaries of City Data.
H. "FATHOM Platform" means the Software operated on FATHOM's hosting servers or
those of its hosting service provider intended to enable City and/or Customers to interact with the same via
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the internet. Without limiting the foregoing, the FATHOM Platform shall include, individually and
collectively, the Software, the FATHOM Content, and the User Interface.
I. "Intellectual Property Rights" means all rights of the following types, under the laws of
any jurisdiction worldwide: (i) rights associated with works of authorship, including exclusive exploitation
rights, copyrights, and moral rights; (ii) trade secret rights; (iii) patent and industrial property rights; (iv)
other proprietary rights of every kind and nature; and (v) rights in or relating to registrations, renewals,
extensions, combinations, divisions, and reissues of, and applications for, any of the above
J. "Licensee Content" means any content uploaded or made available by Licensee via the FATHOM
Platform, which may include City Data.
K. "Service Levels" means the target service levels as set forth in Exhibit C attached to this contract and
incorporated herein.
"Services" means, collectively, the standard services that has been agreed to in writing by the parties
and set forth herein.
L. L. "Software" means the software and mobile application(s) set forth in Exhibit A,
any accompanying documentation, and all updates, upgrades, and enhancements thereof that may be
provided by FATHOM hereunder. "User Interface" means: (i) the web -based interface located at
http://www.p,wfathom.com/, and all subdomains, subpages, and successors sites thereof, hosted by
FATHOM by which City and/or Customers may access the FATHOM Platform; and/or (ii) the mobile
application interface provided by FATHOM by which City and/or Customers may access the FATHOM
Platform.
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EXHIBIT C
SERVICE LEVEL AGREEMENT
1.0 General
This Exhibit sets out the maintenance and support that FATHOM will provide to the City for the FATHOM
Platform.
2.0 Software Service Level Objective
2.1 Uptime. Uptime is defined as the amount of time during a calendar month that FATHOM
is not experiencing Downtime. During the Term, FATHOM will use commercially
reasonable efforts to provide a Monthly Uptime Percentage of at least 99.7% (the "Service
Level Objective" or "SLO").
2.2 Downtime. Downtime is defined as loss of external connectivity and/or access for all
running FATHOM modules combined with the City's inability to connect to their
FATHOM sites. FATHOM sites that are down for a period of five consecutive minutes or
more, will immediately be counted towards Downtime. Intermittent downtime for a period
of less than five minutes will not be counted towards Downtime.
2.3 Exclusions. The following events are not included in Downtime:
2.3.1 Scheduled FATHOM Maintenance Windows. Includes upgrades or repairs to
shared infrastructure, such as core routing or switching infrastructure that
FATHOM scheduled at least 72 hours in advance and that occurs during off peak
hours in the time zone where the data center is located.
2.3.2 Scheduled Customer Maintenance. Includes maintenance of the City's
configuration that the City requests and that FATHOM schedules with the City in
advance (either on a case by case basis, or based on standing instructions), such as
hardware or software upgrades.
2.3.3 Emergency Maintenance. Includes critical unforeseen maintenance needed for
the security or performance of your configuration or the FATHOM network.
2.3.4 Extraordinary Events. Includes downtime or outages resulting from denial of
service attacks, virus attacks, hacking attempts, or any other circumstances that are
not within our control.
2.4 Remedy. If FATHOM does not meet the SLO stated, the City will be eligible to receive a
Service Credit as described below. This Exhibit C states the sole and exclusive remedy for
any failure by FATHOM to meet the SLO.
3.0 Software Support and Maintenance
FATHOM shall offer on-going maintenance and support for the provided software -as -a -service for the
Term and shall include the following:
3.1 Types of Support. Support for the City will be provided by the FATHOM Technical
Support Help Desk which utilizes a collaboration support model (non -tiered) which
provides the agents the ability to resolve any issues in the most efficient way possible.
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3.1.1 The Support Desk can be reached through the FATHOM Support website, via
email or by phone depending on the requestor's preference.
3.1.2 The Support Desk is staffed by live agents from 7 AM to 9 PM Eastern (4 AM to
6 PM Pacific).
3.1.3 The City will be able to submit tickets 24 hours a day if needed and will be
addressed during business hours the following day.
3.2 Response Times. FATHOM will respond to the City request for support via support ticket,
telephone call, or both depending upon the severity of the situation and consistent with any
procedures we have established with the City for the City's account. FATHOM will
respond to your support requests made via ticket or telephone within the following time
frames during normal business hours:
Severity Level
Example
Response
Time
Emergency:
City cannot access site from
Within 15
Site, switch, or server down
the public Internet.
minutes
Urgent:
City site is accessible but in a
Within 1 hour
Site or server functioning improperly
reduced state (timeouts or
or at less than optimal performance
slow response)
Standard:
City site is functioning with
Within 4 hours
Non-critical; site or server is
acceptable parameters, but
functioning normally, but requires
you require assistance on the
information or assistance on services,
software or have a help desk -
wish to schedule maintenance outages,
type question
or any other non -immediate tasks
Response Time applies to the initial contact from FATHOM regarding the request and is
not a guarantee for resolution.
3.3 Remedy. If FATHOM does not meet the Response Time guarantees stated, the City will
be eligible to receive a Service Credit as described below. This Exhibit C states the sole
and exclusive remedy for any failure by FATHOM to meet the Response Time guaranties.
4.0 Service Credit
4.1 Service Credit
4.1.1 Software Service Level Objective. If FATHOM does not meet the SLO, the City
will be eligible to receive the Service Credit described below.
MONTHLY UPTIME ELIGIBLE SERVICE
PERCENTAGE CREDIT, PERCENTAGE
OF EQUIVALENT
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MONTHLY RECURRING
FEE FOR SAAS
SERVICES
99.0% - < 99.7% 10%
95.0% - < 99.0% 25%
7<9, 5.0% - — 50%
For avoidance of doubt, at no time are the fees associated with managed services
eligible for Service Credit as described in this Exhibit C.
4.1.2 Support. If FATHOM does not meet the Response Time guarantees stated above,
the City will be eligible to receive a Service Credit of 5% of the equivalent monthly
recurring fee for SaaS Services per event for the affected software module.
For avoidance of doubt, at no time are the fees associated with managed services
eligible for Service Credit as described in this Exhibit C.
4.2 Limitations on Service Credit
4.2.1 Cumulative Dollar Amount. Notwithstanding anything to the contrary, the
maximum total Service Credit for any calendar month, including all guaranties,
shall not exceed 50% of the City's equivalent monthly recurring fee for the affected
configuration for any given month. Service Credits that would be available but for
this limitation will not be carried forward to future months.
4.2.2 City Breach of Agreement. The City is not eligible to receive a Service Credit if
the City is in breach of the Agreement (including payment obligations to
FATHOM) at the time of the occurrence of the event giving rise to the Service
Credit until the breach has been cured. In addition, the City is not eligible to receive
a Service Credit if the event giving rise to the Service Credit would not have
occurred but for the City's breach of the Agreement.
4.3 Service Credit Request
4.3.1 The City must request a Service Credit in writing either via a support ticket or by
postal mail no later than seven (7) days following the occurrence of the event
giving rise to the Service Credit.
4.3.2 FATHOM will contact the City within 30 days to approve or reject the claim or to
request more information.
4.3.3 If the Service Credit claim is approved, the Service Credit will be applied to the
next monthly invoice following approval.
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