Contract - US Digital Designs, Inc. - 3/23/2023 CITY OF ROUND ROCK
AGREEMENT FOR PURCHASE OF
FIRE STATION MONITORING SOFTWARE
WITH
US DIGITAL DESIGNS.INC.
THE STATE OF TEXAS §
CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS:
COUNTY OF WILLIAMSON §
COUNTY OF TRAVIS §
That this Agreement for purchase of fire station monitoring software, and for related
gods dservices, referred to herein as t a "Agreement," is made and entered into on this the
da of the month of , 2023, between the CITY OF ROUND ROCK,
TEXAS, a home-rule municipality whose offices are located at 221 East Main Street, Round
Rock, Texas 78664 (referred to herein as "City"), and US DIGITAL DESIGNS, INC., an
Arizona Corporation whose offices are located at 1835 East Oh Street, Suite 27, Tempe, Arizona
85281 (referred to herein as the"Vendor").
RECITALS:
WHEREAS, City desires purchase a fire station monitoring software; and
WHEREAS, Section 252.022(4) of the Texas Local Government Code states that
expenditures for items available for only one source are exempt from competitive bidding
requirements; and
WHEREAS, Vendor is the sole source provider of the goods and services being
purchased pursuant to this Agreement; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW,THEREFORE,WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties
mutually agree as follows:
4864-1591-3286/ss2
I _702.3- 0W
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City agrees to buy specified goods and/or services and Vendor is obligated to sell same.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of the United
States or the State of Texas or any civil or military authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government
and the people, civil disturbances, explosions, or other causes not reasonably within the control
of the party claiming such inability.
E. Goods and services mean the specified supplies, materials, commodities, or
equipment.
F. Vendor means US Digital Designs, Inc.,or any of its successors or assigns.
2.01 EFFECTIVE DATE AND TERM
A. This Agreement shall be effective on the date it has been signed by both parties
hereto, and shall remain in full force and effect unless and until it expires by operation of the
term stated herein,or until terminated or extended as provided herein.
B. The term of this Agreement shall be for sixty (60) months from the effective date
hereof.
C. City reserves the right to review the relationship at any time, and may elect to
terminate this Agreement with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
City selected Vendor to supply the goods and/or services as outlined in Exhibit "A,"
pursuant to the terms herein and in Exhibit `B" ("Services Agreement"). Both Exhibits are
attached hereto and incorporated herein by reference for all purposes.
The goods and/or services which are the subject of this Agreement are described in the
Exhibits and the Exhibits, together with this Agreement, comprise the total Agreement and they
are fully a part of this Agreement as if repeated herein in full.
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4.01 SCOPE OF SERVICES
When taken together with the appended exhibit, this Agreement shall evidence the entire
understanding and agreement between the parties and shall supersede any prior proposals,
correspondence or discussions. Vendor shall satisfactorily provide all goods and/or services
described under the attached Exhibit "A" at the sole request of the City. Vendor provide goods
and/or services in accordance with this Agreement, in accordance with the appended exhibits, in
accordance with due care, and in accordance with prevailing industry standards for comparable
services.
5.01 COSTS
A. City agrees to pay for goods and/or services during the term of this Agreement at
the pricing set forth in Exhibit"A."
B. The City is authorized to pay the Vendor an amount not-to-exceed Four
Hundred Thousand and No/100 Dollars($400,000.00)for the term of this Agreement.
6.01 INVOICES
All invoices shall include,at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received; and
D. Delivery dates.
7.01 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may affect such termination by
giving Vendor a written notice of termination at the end of its then current fiscal year.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Vendor will be made within thirty (30) days of the day on which City receives the performance,
supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on
which the performance of services was complete, or within thirty (30) days of the day on which
City receives a correct invoice for the performance and/or deliverables or services, whichever is
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later. Vendor may charge interest on an overdue payment at the "rate in effect" on September 1
of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b); however, this Policy does not apply to payments made
by City in the event:
A. There is a bona fide dispute between City and Vendor, a contractor, a
subcontractor or supplier about the goods delivered or the service performed that
cause the payment to be late;or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds;or
C. There is a bona fide dispute between Vendor and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late; or
D. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or
otherwise were offered or given by Vendor or its agents or representatives to any City officer,
employee or elected representative with respect to the performance of this Agreement. In
addition, Vendor may be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be
included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the goods and/or services as specified, City reserves the right
and option to obtain the products or services from another supplier or suppliers.
12.01 INSURANCE
Vendor shall meet all requirements required by the City as set forth on the City's website
at: https://www.roundrocktexas. og v/W-content/uploads/2014/12/corr insurance 07.20112.2df
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13.01 CITY'S REPRESENTATIVE
City hereby designates the following representatives authorized to act in its behalf with
regard to this Agreement:
Trish DeLa Torre
Logistics Officer
Fire Department
203 Commerce Boulevard
Round Rock,Texas 78664
(512)671-2891
tdelatorre(a-roundrocktexas. ov
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the other
party's intent to perform hereunder, then demand may be made to the other party for written
assurance of the intent to perform. In the event that no written assurance is given within the
reasonable time specified when demand is made,then and in that event the demanding party may
treat such failure as an anticipatory repudiation of this Agreement.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing
the specified goods and/or services elsewhere, Vendor agrees that it may be charged the
difference in cost, if any, and that it will not be considered in the re-advertisement of the service
and that it may not be considered in future bids for the same type of work unless the scope of
work is significantly changed.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to make any payment in full when due;
B. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
C. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
16.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for
convenience and without cause, at any time upon thirty(30)days' written notice to Vendor.
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B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause,upon ten(10)days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City or by mutual agreement to terminate evidenced
in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor, Vendor shall
discontinue all services in connection with the performance of this Agreement and shall proceed
to cancel promptly all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement. Within thirty (30) days after such notice of termination, Vendor
shall submit a statement showing in detail the goods and/or services satisfactorily performed
under this Agreement to the date of termination. City shall then pay Vendor that portion of the
charges, if undisputed. The parties agree that Vendor is not entitled to compensation for services
it would have performed under the remaining term of the Agreement except as provided herein.
17.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its successors,
assigns, officers, employees and elected officials harmless from and against all suits, actions,
legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all
other costs or fees arising out of, or incident to, concerning or resulting from the fault of Vendor,
or Vendor's agents, employees or subcontractors, in the performance of Vendor's obligations
under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be
deemed to limit the rights of City or Vendor (including, but not limited to the right to seek
contribution)against any third party who may be liable for an indemnified claim.
18.01 COMPLIANCE WITH LAWS,CHARTER AND ORDINANCES
A. Vendor, its agents, employees and subcontractors shall use best efforts to comply
with all applicable federal and state laws,the Charter and Ordinances of the City of Round Rock,
as amended, and with all applicable rules and regulations promulgated by local, state and
national boards,bureaus and agencies.
B. In accordance with Chapter 2271, Texas Government Code,a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1)does not boycott Israel; and (2)will not boycott
Israel during the term of the contract. The signatory executing this Agreement on behalf of
Vendor verifies Vendor does not boycott Israel and will not boycott Israel at any time during the
term of this Agreement.
C. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has
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provision in the contract verifying that it: (1) does not have a practice, policy, guidance, or
directive that discriminates against a firearm entity or firearm trade association; and (2) will not
discriminate during the term of the contract against a firearm entity or firearm trade association.
The signatory executing this Agreement on behalf of Vendor verifies Vendor does not have a
practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association, and it will not discriminate during the term of this Agreement against a firearm
entity or firearm trade association.
D. In accordance with 2274, Texas Government Code, a governmental entity may
not enter into a contract with a company with at least ten (10) full-time employees for a value of
at least One Hundred Thousand and No/100 Dollars ($100,000.00) unless the contract has
provision in the contract verifying that it: (1)does not boycott energy companies; and(2)will not
boycott energy companies during the term of this Agreement. The signatory executing this
Agreement on behalf of Vendor verifies Vendor does not boycott energy companies, and it will
not boycott energy companies during the term of this Agreement.
19.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
20.01 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to the recipient's address as stated in this Agreement;
or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Vendor:
US Digital Designs, Inc.
1835 East 60'Street, Suite 27
Tempe,Arizona 85281
Notice to City:
City Manager Stephanie L. Sandre, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock,TX 78664 Round Rock,TX 78664
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Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the State of Texas.
22.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Vendor and City. This Agreement may only be amended or supplemented by mutual agreement
of the parties hereto in writing,duly authorized by action of the City Manager or City Council.
23.01 DISPUTE RESOLUTION
City and Vendor hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14)or any applicable state arbitration statute.
24.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
25.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it employs trained, experienced and
competent persons to perform all of the services, responsibilities and duties specified herein and
that such services, responsibilities and duties shall be performed in a manner according to
generally accepted industry practices.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the
agreed timeframes will constitute a material breach of this Agreement. Vendor shall be fully
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responsible for its delays or for failures to use best efforts in accordance with the terms of this
Agreement. Where damage is caused to City due to Vendor's failure to perform in these
circumstances, City may pursue any remedy available without waiver of any of City's additional
legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it is not
responsible as defined herein. However, notice of such impediment or delay in performance
must be timely given, and all reasonable efforts undertaken to mitigate its effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the dates
indicated.
City of Round Rock,Texas US Digital Designs, c.
By: By:
Printed Namel Ord,11 fadvi Printed e: Askim kram
Title: Title: General Manager
Date Signedo aps Date Signed: January 10, 2023
Attest:
Meagan Spi ,City Clerk
For City,Approved as to Form:
By:
tep anie an re, City Attorney
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Exhibit "A"
ROUND ROCK,TX
Projected Service Fee Annual"Service Fee
Base Amount 2023-2024 2024-2025 2025-2026 2026-2027 2027-2028
Dispatch $32,107.50 $ 3,210.75 $ 3,210.75 $ 3,210.75 $ 3,210.75 $ 3,210.75
Station 1 $32,715.90 $ 3,271.59 $ 3,271.59 $ 3,271.59 $ 3,271.59 $ 3,271.59
Station 2 $30,531.60 $ 3,053.16 $ 3,053.16 $ 3,053.16 $ 3,053.16 $ 3,053.16
Station 3 $28,508.40 $ 2,850.84 $ 2,850.84 $ 2,850.84 $ 2,850.84 $ 2,850.84
Station 4 $39,223.80 $ 3,922.38 $ 3,922.38 $ 3,922.38 $ 3,922.38 $ 3,922.38
Station 5 $28,147.50 $ 2,814.75 $ 2,814.75 $ 2,814.75 $ 2,814.75 $ 2,814.75
Station 6 $28,606.50 $ 2,860.65 $ 2,860.65 $ 2,860.65 $ 2,860.65 $ 2,860.65
Station 7 $26,460.90 $ 2,646.09 $ 2,646.09 $ 2,646.09 $ 2,646.09 $ 2,646.09
Station 8 $38,020.50 $ 3,802.05 $ 3,802.05 $ 3,802.05 $ 3,802.05 $ 3,802.05
Components -Stations 4&8 $1,032.00 $ 103.20 $ 103.20 $ 103.20 $ 103.20 $ 103.20
Station 9 $25,524.90 $ 2,552.49 $2,552.49 $2,552.49 $ 2,552.49 $ 2,552.49
Portable System $34,372.80 $ 3,437.28 $3,437.28 $3,437.28 $ 3,437.28 $ 3,437.28
Station 3 - 2020 Purchases $40,284.00 $ 4,028.40 $4,028.40 $4,028.40 $ 4,028.40 $ 4,028.40
$385,536.30 $ 38,553.63 $ 38,553.63 $ 38,553.63 $ 38,553.63 $ 38,553.63
Exhibit "B"
I I P
P/7 br
US DIGITAL DESIGIIS
stationalerting.com
SERVICE AGREEMENT
This Service Agreement ("Agreement") is made by and between US Digital Designs, Inc.
("USDD"),with its principal place of business at 1835 East Sixth Street,Suite 27,Tempe,Arizona
85281,and the following entity("Customer") (each a"Party"and collectively,the"Parties"):
City of Round Rock
Round Rock Fire Department
Attn:
2919 Joe DiMaggio Boulevard
Round rock,TX 78665
Telephone:
Email:
1. Recitals.Customer requires USDD to provide Software maintenance and Hardware repair
services for its USDD Phoenix G2 Fire Station Alerting System Products (as those terms are
defined below). USDD has agreed to service Customer's System (as defined below) pursuant to
the terms,conditions,and limitations of this Agreement. In consideration of the forgoing,and for
other good and valuable consideration, the Parties hereby agree to the terms set forth in this
Agreement.
2. Definitions.
a. "Additional Services" means all other acts or performances requested or required of
USDD by Customer outside of the Services;
b. "Authorized Contact" means a person appointed by Customer who is authorized to
make use of the Services;
c. "Application or App" means the Phoenix G2 FSA Mobile Application for iOS and
Android mobile devices;
d. "Commencement Date" shall be the date the contract is fully executed.
US Digital Designs—Service Agreement Page 1 of 11
Exhibit "B"
e. "Emergency Support" means telephone access for Customer's Authorized Contacts
to USDD's senior staff and engineers in the event of a Mission Critical Failure;
f. "Hardware"means all physically tangible electro-mechanical systems or sub-systems
and associated documentation provided to Customer by USDD; Hardware does not
include any components, hardware, or software provided by third parties including,
without limitation, Customer's computers, laptops, computer peripherals, monitors,
televisions,routers, switches,operating systems,computer programs,applications,the
App, internet and network connections, and any other parts or items not provided to
Customer directly by USDD, nor does Hardware include any televisions or monitors
manufactured by third parties, even if USDD provided such televisions or monitors to
Customer;
g. "Mission Critical Failure"means a failure in the materials,workmanship or design of
the System that causes any fire station served by the System to be incapable of receiving
dispatches through all communications paths,provided however,that any such failure
caused by operator error, internet or telephony service outages,misuse or neglect of the
System or any cause outside of USDD's direct control does not constitute a Mission
Critical Failure;
h. "Product" or "Products" mean the Hardware, Software and other tangible goods,
equipment, supplies,and components included in the System(as defined below);
i. "Services" means those services provided by USDD which are set forth in this
Agreement, including, without limitation, Hardware repair service, Software updates,
and support and maintenance for the System(including,without limitation,Emergency
Support Services)during the Term of this Agreement;
j. "Software" means software programs, including both standalone and embedded
software, firmware in executable code form, including any updates, upgrades, and
patches thereto, as well as any relevant documentation, that are licensed to Customer
by USDD for use in connection with the System, including,without limitation the App;
and
k. "System" means all Hardware and Software purchased by Customer, either directly
from USDD or from authorized USDD reseller, under any contract,purchase order, or
arrangement that is used exclusively by Customer as part of its Phoenix G2 Fire Station
Alerting System;provided, however,that the term "System"specifically excludes any
components, hardware, or software provided by third parties including, without
limitation,Customer's computers,laptops,computer peripherals,monitors,televisions,
routers, switches, operating systems, computer programs, applications, internet and
network connections, and any other parts or items not provided to Customer directly
by USDD.
US Digital Designs—Service Agreement Page 2 of 11
Exhibit "B"
3. USDD Scope of Services. During the Term of this Agreement, USDD agrees to provide
the Services to Customer. Subject to all other terms and conditions contained in the Agreement,
the Services shall include the following:
a. Technical phone support Monday through Friday from 08:00 to 17:30 MST,excluding
USDD holidays;
b. Remote access support Monday through Friday from 08:00 to 17:30 MST, excluding
USDD holidays;
c. Emergency Support, available 24 hours per day, for Customer's Authorized Contacts
in the event of a Mission Critical Failure;
d. Updates for all System Software, as and when released by USDD;
e. Twenty-four (24) App licenses per each ATX Station Controller that is part of the
System and covered under this Agreement. Use of the App shall be strictly governed
by the Mobile Application End User's Agreement that must be accepted by each user
at the time the software is downloaded.
f. Advance replacement of defective or malfunctioning Hardware, subject to USDD's
Return Material Authorization("RMA")Process described below; and
g. Ground shipping for the return of repaired Hardware.
4. Services Requests. Prior to requesting Services, Customer is encouraged to review
USDD's online help resources. Thereafter,to make a valid Services request hereunder,Customer
must contact USDD technical support and describe the problem or defect with specificity. The
first such contact must occur during the Term. USDD's technical support contact information can
be found on USDD's web site: http:Hstationalerting.com/service-support/. Customer must use
its best efforts to assist in diagnosing defects, follow USDD's technical instructions, and fully
cooperate in the diagnostic process. Failure to do so shall relieve USDD of any further obligation
hereunder.
5. Replacement of Hardware. If a Hardware component requires repair during the Term,
Customer shall initiate the RMA process as described below. Upon approval, USDD will cause
shipment of a replacement Hardware component to Customer prior to the defective Hardware
component being returned to USDD for repair. The replacement Hardware will be a product that
is new or equivalent to new in performance and reliability and is at least functionally equivalent
to the original Hardware. When a Product is exchanged, any replacement item becomes the
Customer's property and the replaced item becomes the property of USDD. Replaced Hardware
provided by USDD in fulfillment of the Services must be used in the System to which this
Agreement applies.
6. Return Material Authorization Process. If a Customer makes a claim for an advanced
replacement of a Hardware component during the Term, Customer must initiate an RMA request.
US Digital Designs—Service Agreement Page 3 of 11
Exhibit "B"
As part of this RMA process, Customer shall provide USDD with the Hardware model, serial
number,and a description of the Hardware's failure. Upon USDD's issuance of the RMA,USDD
will send the replacement Hardware,shipped postage paid ground shipping to the address provided
by Customer. RMA requests approved between 12:00 a.m.and 2:00 p.m.Mountain Standard Time
are shipped on the same business day. After 2:00 p.m. Mountain Standard Time,the replacement
Hardware will be shipped on the next business day. All RMA requests are processed on the
business day on which the request was received, excluding holidays. Included with the shipped
package will be return shipment instructions and a pre-paid return shipping label for the Hardware
that the Customer is returning. The original Hardware must be returned in the shipping box
provided by USDD. No goods will be accepted for exchange or return without a pre-approved
RMA number, nor will goods which have not been properly packaged in USDD's shipping box,
as proper packaging ensures that goods are not damaged during the shipping process. The original
Hardware must be shipped back within 10 days of receiving the replacement Hardware. Failure
to return the original Hardware or failure to return the original Hardware in an appropriate manner
will cause Customer to incur a replacement charge equal to full market value of the replacement
Hardware.
7. No Fault Found. USDD reserves the right to charge 50%of the standard repair price if
the returned Hardware is found to have no defect covered by this Agreement. Customer
understands that this fee is intended to discourage return of Hardware prior to proper
troubleshooting or because the Hardware is"old." Hardware returns will not be allowed if,upon
examination of the returned Hardware component, it is determined that the Hardware was
subjected to accident, misuse, neglect, alteration, improper installation, unauthorized repair, or
improper testing. In such event, USDD shall invoice Customer for the full market value of the
replacement Hardware.
8. Limitations. The Services specifically and expressly exclude any repair, software
installation,update,or other service that is necessitated by the Customer's misuse or neglect of the
System, damage arising from Customer's failure to follow instructions relating to the product's
use, cosmetic damage, including but not limited to scratches, dents and broken plastic on ports,
alterations or repairs to the System made by any person other than an authorized USDD
representative, failure of environmental controls or improper environmental conditions,
modification to alter functionality or capability without the written permission of USDD,use with
non-USDD products, any damage caused by fire, flood, vandalism, terrorism, riot, storm,
lightning, or other acts of nature or civil unrest. The Services shall not include disassembly or re-
installation of any Hardware at Customer's site. The Services shall not include the repair of any
Hardware that is determined to be obsolete or irreparable in USDD's sole discretion. The Services
shall not include repair or replacement of televisions or monitors manufactured by third parties.
Repair or replacement of such non-USDD components shall be subject exclusively to the
manufacturer's warranty, if any. USDD shall not be liable to provide Services at any time when
Customer is in breach of any obligation to USDD under this Agreement or any other contract with
USDD.
9. Additional Services by USDD. Additional Services will be charged at USDD's then
current rates and will be in addition to all other fees and charges payable by Customer under this
Agreement. Additional Services shall include (without limitation)Customer's use of Emergency
US Digital Designs—Service Agreement Page 4 of 11
Exhibit "B"
Support in the absence of a Mission Critical Failure and any Services provided by USDD on a rush
basis or during hours not included in the description of the Services set forth above. Customer
shall pay all invoices for Additional Services within 30 days. Invoices remaining unpaid for more
than 30 days shall bear interest at 18%per annum.
10. Authorized Support Contacts. In order to facilitate USDD's delivery of the Services,
Customer shall appoint a minimum of one and a maximum of three Authorized Contacts. The
Customer must ensure that the Authorized Contacts have adequate expertise and experience to
make an accurate description of malfunctions to make it possible for USDD to handle reports
efficiently. Customer is responsible to select those personnel for this task who are suitable for it
by means of training and function, and who have knowledge of Customer's network, hardware,
and software systems.The Authorized Contacts must also have completed USDD product training.
At least one Authorized Contact should be available to assist USDD as needed during the support
process. Authorized Contacts are responsible for coordinating any actions needed by Customer's
personnel or contractors including obtaining additional information from field or dispatch
personnel, data network or communications system troubleshooting, and physical inspection or
actions on the System components.
11. Customer Facilitation of Services. Customer will be responsible for providing the
following:
a. The provision of remote access to the System,as more specifically described in Section
12 below;
b. The procurement and/or provision of all computers, peripherals, and consumables
(collectively "Customer Equipment"), including printer paper, toner, and ink
necessary for the operation,testing,troubleshooting, and functionality of the System;
c. Any configuration and regular maintenance that is normally undertaken by the user or
operator as described in the operating manual for the Customer Equipment, including
the replacement of UPS batteries as necessary;
d. Providing a stable means of data transmission between the System Gateway and each
fire station serviced by the System necessary for the installation, testing and
functionality of the System; such means of data transmission may include, but is not
limited to,TCP/IP, data modems, leased lines, radios,etc.;
e. The correct use of the System in accordance with USDD's operating instructions; and
f. The security and integrity of the System.
12. Remote Access. USDD requires remote network access to the Customer's System,
including its Communications Gateways,station controllers,and other USDD-supplied equipment
through Secure Shell (SSH) to perform implementation and support tasks under this Agreement.
To enable this the Customer will provide USDD support personnel VPN or similar remote network
access to the System for USDD support personnel ("Customer Support") to effectively
US Digital Designs—Service Agreement Page 5 of 11
Exhibit "B"
troubleshoot critical or complex problems and to expedite resolution of such issues. Remote
network access is also used to install core System software upgrades and customized software.
USDD will only access Customer's System with the knowledge and consent of Customer.
a. Alternative to Network Access. If the Customer elects not to provide remote network
access to the System,then USDD may not be able to perform some support functions.
Customers that elect not to routinely provide network access may temporarily reinstate
this access to allow USDD to perform the above Services.The following Services will
not be performed without this access:
• System Software upgrades;
• System Software customization;
• Network troubleshooting assistance including packet capture and network
monitoring on USDD devices;
• Detailed log analysis;
• Bulk updates to System database tables; and
• Troubleshooting that requires low-level System access or large file transfer.
b. Timely Access. Customers must ensure that remote access is available prior to
notifying USDD of a Services request. In the event that the Customer is unable to
provide remote access, USDD will not be required to provide Services outside those
tasks that do not require remote access, and any corresponding resolution response
times will not apply.
c. Physical Security Tokens. USDD has multiple software engineers that provide after-
hours support and these engineers do not typically take security tokens from the USDD
office. If the customer requires the use of physical security tokens this may delay after
hours Services.
13. Ongoing Service Term and Termination. The term of this Agreement shall begin on the
Commencement Date and shall continue for five year(s). Either party may terminate this
agreement for convenience without cause by giving 30 days' written notice of intent to terminate
Either party may terminate this Agreement for any breach hereof upon 30 days written notice. The
notice shall specify the nature of the breach. If the breaching party fails to cure the breach within
30 days, this Agreement shall be terminated. Notwithstanding the foregoing, USDD may
terminate this Agreement immediately upon non-payment of any sum due from Customer under
this Agreement or any other contract. Upon termination of this Agreement, all sums previously
paid to USDD shall be nonrefundable.
14. Annual Fees. On or before each anniversary of the Commencement Date (each a "Due
Date"), Customer shall pay USDD an Annual Fee in advance for the Services and to be delivered
hereunder(the "Annual Fee"). The Annual Fee shall be the product of the total cumulative sales
price of all Hardware, Software, and other tangible goods or equipment provided to Customer at
US Digital Designs—Service Agreement Page 6 of 11
Exhibit "B"
any time under any circumstances (`Base Amount"), multiplied by .10. Customer acknowledges
and agrees that the Base Amount is cumulative and will increase by the purchase price of all
Software,Hardware and Services purchased in the future. USDD may calculate the Base Amount,
determine the Annual Fee and invoice Customer therefore 45 days prior to the subject Due Date.
Customer shall pay the Annual Fee on or before the Due Date or 30 days after the date of the
invoice, whichever is later. Invoices remaining unpaid shall bear interest at 18% per annum.
Annual Fees are nonrefundable.
15. Reinstatement. If Customer elects not to renew this Agreement for any Additional Term
or otherwise terminates this Agreement, this section shall survive termination of this Agreement
and the following terms shall govern any attempt by Customer to reinstate Service:
a. Timing. Reinstatement must occur prior to the third (P) anniversary of the
Commencement Date. USDD reserves the right to reinstate or refuse to reinstate a
System in its sole discretion.
b. New Service Agreement and Annual Fee Multiplier. Upon reinstatement, Customer
must enter into a new Service Agreement with USDD. The fee for any new Service
Agreement shall be calculated based on the then applicable Service Fees for USDD's
Service Agreements.
c. Reinstatement Fee. In consideration for USDD reinstating the Services,Customer shall
also pay an additional, nonrefundable fee (the "Reinstatement Fee"). The
Reinstatement Fee shall equal the unpaid Annual Fee or Annual Fees Customer would
have owed if Customer had renewed this Agreement for each of the two(2)Additional
Terms. Any unpaid Reinstatement Fee shall accrue interest at the rate of 18% per
annum.
d. Abandonment. If Customer reinstates Service by entering into a new Service
Agreement with USDD and then subsequently either declines to renew the new Service
Agreement for the maximum Additional Terms allowed thereunder or otherwise
terminates the new Service Agreement,USDD will deem Customer to have abandoned
the System and will not provide further Services for the System. Customer will also
not be allowed to reinstate Service of the System through another Service Agreement.]
16. Exclusions and Limitations. USDD warrants that the Services performed hereunder will
be carried out with due care and attention by qualified personnel. Defective Hardware subject to
repair hereunder will be repaired to good working order. USDD does not warrant that the operation
of the System, Hardware, Software, or any related peripherals will be uninterrupted or error-free.
USDD is not responsible for damage arising from Customer's failure to follow instructions relating
to the System's use. This Agreement does not apply to any Hardware or Software not used in
conjunction with the System and for its intended purpose. This Agreement does not apply to
monitors or televisions manufactured by third parties. Recovery and reinstallation of Hardware
and user data(including passwords)are not covered under this Agreement. This Agreement does
not apply to: (a) consumable parts, such as batteries, unless damage has occurred due to a defect
in materials or workmanship; (b) cosmetic damage, including but not limited to scratches, dents
and broken plastic on ports; (c) damage caused by use with non-USDD products; (d) damage
US Digital Designs—Service Agreement Page 7 of 11
Exhibit "B"
caused by accident, abuse, misuse, flood, lightning, fire, earthquake or other external causes; (e)
damage caused by operating the Product outside the permitted or intended uses described by
USDD;(f)damage or failure caused by installation or service(including upgrades and expansions)
performed by anyone who is not a representative of USDD or a USDD authorized installer or
service provider; (g) a Product or part that has been modified to alter functionality or capability
without the written permission of USDD; or(h)to any Product from which the serial number has
been removed or defaced.
TO THE EXTENT PERMITTED BY LAW, THIS AGREEMENT AND THE REMEDIES SET
FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY,
EXPRESS, OR IMPLIED. AS PERMITTED BY APPLICABLE LAW, USDD
SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. If USDD cannot lawfully
disclaim statutory or implied warranties then to the extent permitted by law, all such warranties
shall be limited in duration to the duration of this express warranty and to repair or replacement
service as determined by USDD in its sole discretion. No reseller,agent,or employee is authorized
to make any modification,extension,or addition to this warranty. If any term is held to be illegal
or unenforceable, the legality or enforceability of the remaining terms shall not be affected or
impaired. EXCEPT AS PROVIDED IN THIS AGREEMENT AND TO THE EXTENT
PERMITTED BY LAW, USDD IS NOT RESPONSIBLE FOR DIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY
BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY,
INCLUDING BUT NOT LIMITED TO: LOSS OF USE; LOSS OF REVENUE; LOSS OF THE
USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF GOODWILL; LOSS OF
REPUTATION;AND LOSS OF,DAMAGE TO OR CORRUPTION OF DATA. USDD IS NOT
RESPONSIBLE FOR ANY INDIRECT LOSS OR DAMAGE HOWSOEVER CAUSED
INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF
RECOVERING PROGRAMMING OR REPRODUCING ANY PROGRAM OR DATA
STORED OR USED WITH USDD PRODUCTS, AND ANY FAILURE TO MAINTAIN THE
CONFIDENTIALITY OF DATA STORED ON THE PRODUCT.
ALL PRODUCT AND SERVICE CLAIMS ARE LIMITED TO THOSE EXCLUSIVE
REMEDIES SET FORTH IN THIS SERVICE AGREEMENT. USDD'S AGGREGATE
LIABILITY IN CONNECTION WITH THE REPAIR OR REPLACEMENT OF HARDWARE
UNDER THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF THE AGGREGATE
PURCHASE PRICE OF THE HARDWARE PAID BY CUSTOMER TO USDD (i) GIVING
RISE TO THE CLAIM OR(ii)PROCURED BY CUSTOMER IN THE TWELVE(12)MONTHS
PRIOR TO WHEN THE CLAIM AROSE. USDD'S AGGREGATE LIABILITY IN
CONNECTION WITH SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO
CORRECTION OR RE-PERFORMANCE OF THE DEFECTIVE SERVICES OR REFUND OF
FEES PAID FOR THE SERVICES,AT USDD'S SOLE ELECTION,IF CUSTOMER NOTIFIES
USDD IN WRITING OF DEFECTIVE SERVICES WITHIN NINETY (90) DAYS OF THE
DEFECTIVE SERVICES. CUSTOMER SHALL NOT BRING A LEGAL OR EQUITABLE
US Digital Designs—Service Agreement Page 8 of 11
Exhibit "B"
ACTION AGAINST USDD MORE THAN ONE YEAR AFTER THE FIRST EVENT GIVING
RISE TO A CAUSE OF ACTION, UNLESS A SHORTER LIMITATIONS PERIOD IS
PROVIDED BY APPLICABLE LAW. USDD disclaims any representation that it will be able to
repair any hardware under this Service Agreement or make a product exchange without risk to or
loss of the programs or data stored thereon.
17. Force Majeure. Except for Customer's duty to pay sums due hereunder, neither USDD
nor Customer will be liable to the other for any failure to meet its obligations due to any Force
Majeure Event. As used herein, a "Force Majeure Event" is one that is beyond the reasonable
control of the non-performing party and may include, but is not limited to: (a) delays or refusals
to grant an export license or the suspension or revocation thereof, (b) embargoes, blockages,
seizure or freeze of assets, or any other acts of any government that would limit a Party's ability
to perform the Contract, (c) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes,
severe weather conditions, or any other acts of God, (d) quarantines, pandemics, or regional
medical crises, (e) labor strikes, lockouts, or pandemic worker shortages, (f) riots, strife,
insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism or war,
declared or not (or impending threat of any of the foregoing, if such threat might reasonably be
expected to cause injury to people or property), and (g) shortages or inability to obtain materials
or components. The Party unable to fulfill its obligations due to Force Majeure will promptly:
a. notify the other in writing of the reasons for its failure to fulfill its obligations and the
effect of such failure; and
b. use responsible efforts to mitigate and/or perform its obligations.
If a Force Majeure Event results in a delay, then the date of performance will be extended by the
period of time that the non-performing Party is actually delayed or for any other period as the
Parties may agree in writing. In the event that a Force Majeure Event is ongoing for a period of
time which is sixty(60)days or longer,USDD may provide notice to Customer that it is cancelling
this Service Agreement.
18. Headings and Usage. The headings, captions, and section numbers contained herein are
provided for convenience only and are not part of the terms of this Agreement. When the context
of the words used in this Agreement indicate that such is the intent, words in the singular shall
include the plural,and vice versa,and the references to the masculine, feminine or neuter shall be
construed as the gender of the person,persons, entity,or entities actually referred to require.
19. Waiver. No failure or delay, in any one or more instances, to enforce or require strict
compliance with any term of this Agreement shall be deemed to be a waiver of such term nor shall
such failure or delay be deemed a waiver of any other breach of any other term contained in this
Agreement.
20. Governing Law; Parties in Interest. This Agreement will be governed by and construed
according to the laws of the State of Texas without regard to conflicts of law principles and will
bind and inure to the benefit of the successors and assigns of the Parties.
US Digital Designs—Service Agreement Page 9 of 11
Exhibit "B"
21. Execution in Counterparts. This Agreement may be executed in counterparts, all of
which taken together shall be deemed one original. The date of this Agreement shall be the latest
date on which any Party executes this Agreement. The Parties acknowledge that they will be
bound by signatures on this document which are made via electronic means (i.e., DocuSign) and
which are transmitted by mail,hand delivery, facsimile and/or any other electronic method(email
or otherwise) to the other Party. Such electronic signatures will have the same binding effect as
any original signature, and electronic copies will be deemed valid.
22. Entire Agreement. This Agreement contains the entire understanding between the Parties
and supersedes any prior understandings and agreements between or among them with respect to
the subject matter hereof. This Agreement may not be amended,altered,or changed except by the
express written agreement of the Parties.
23. Review. The Parties acknowledge that they have had an adequate opportunity to review
this Agreement, as well as the opportunity to consult legal counsel regarding this Agreement.
Accordingly,the Parties agree that the rule of construction that a contract be construed against the
drafter, if any, shall not be applied in the interpretation and construction of this Agreement.
24. Assignment. The Parties shall not assign, in whole or in part, the Agreement without the
prior written consent of the other Party, which consent may not be unreasonably withheld.
Notwithstanding the foregoing, USDD may freely transfer its rights under this Agreement in the
event of a sale or transfer of all or substantially all of its assets or stock. Each Party binds itself,
its successors, assigns,executors,administrators,or other representatives to the other Party hereto
and to successors, assigns, executors, administrators, or other representatives of such other Party
in connection with all terms and conditions of this Agreement.
25. Savings Clause. In the event any part,provision, or term of this Agreement is deemed to
be illegal or unenforceable, this Agreement shall be construed as if such unenforceable part,
provision, or term had not been included herein. Such illegal or unenforceable part,provision,or
term shall be deemed revised to the extent necessary to cure its defect and such revision and the
remainder of the Agreement shall be and remain in full force and effect.
26. Images and Testimonials. During the term of this Agreement, Customer agrees that
USDD may take,make,or obtain images,pictures,photographs,commentary,and video and audio
recordings of Customer's System and property and reproductions of the same in whole or in part,
either digitally or in any other medium now known or later discovered(collectively"Images"). In
addition, USDD may request Customer to provide testimonials, endorsements, feedback or other
written or oral comments concerning Customer's experience with the System (collectively
"Testimonials"). Customer consents to USDD's use of such Images and Testimonials for
verification,training,and promotional purposes in USDD's sole discretion and agrees that all such
Images and Testimonials shall remain the property of USDD and may be used and exploited in
any media format.
27. Customer Representative. The undersigned representative of Customer hereby
represents and warrants that s/he has the authority to bind Customer and that the execution,
delivery, and performance by Customer under this Agreement will not violate the provisions of
US Digital Designs—Service Agreement Page 10 of 11
Exhibit "B"
any law,rule,regulation, or policy, and will not conflict with or result in the breach or termination
or constitute a default under any agreement or instrument to which Customer is a party. /
City of Round Rock: US Digital Designs, Inc.:
By: A VK P BY �/ A
Name: Asint kkram, V c ident
Its:
Date: Date:January 10, 2023
US Digital Designs—Service Agreement Page 11 of 11