HomeMy WebLinkAboutC17-141 Visual LabsSUBSCRIPTION AGREEMENT
The documents below describe the relationship between Visual Labs, Inc. ("Visual Labs") and the Client identified below ("Client")
(each of Visual Labs and Client, a "Party"). The documents attached to this cover page consists of the Master Terms and Conditions,
which describe the general legal terms governing the relationship, and Schedule A, setting forth additional details (collectively, the
"Agreement"). This Agreement will become effective when this cover page is executed by authorized representatives of both Parties
(the "Effective Date").
CLIENT INFORMATION:
Name/Client: Eagle County, Colorado Sheriff's Office
Address: 0885 East Cham hers Avenue
Eaale. CO 81631
Principal Contact Person: James Van Beek
Title: Sheriff
Phone:
970-328-8500
Email Address: 0ames.vanheek@eaglecounty.us
The Parties have caused their duly authorized representatives to execute this Agreement as of the Effective Date.
CLIENT: Ea I I e
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By(Signature); '— ........................ .... .d
Name (Printed):
James A. Van Beek
Title: Eagle County Sheriff
Date: 05/01/2017
VISUAL LABS, INC.� a-DeF�._ =:
By(Signature): L 1111711111111111171111111 d111
Name (Printed): Alexander R. Popof
Title: Chief Executive Officer
Date: 04/30/2017
C17-141
Master Terms and Conditions
1. DEFINITION OFTERIA5
The following terms have the following meanings:
1.1. "Application" means Visual Labs' proprietary smartphone software application.
1.2. "Authorized User" means any employees, agents or representatives of Client that are authorized to use the Services by receiving usernames
and passwords from Client (or from Visual Labs at Client's request), subject to any limitations or restrictions set forth in this Agreement.
1.3. "Client Content" means any information, data, text, pictures, video, audio, geographic locations, or any other content provided or recorded
by Client or its Authorized Users in connection with Client's and its Authorized Users' use of the Platform.
1.4. "Confidential Information" means all confidential or proprietary information disclosed by one Party to the other in connection with this
Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully obtained by the other
Party from independent sources free from any duty of confidentiality. Notwithstanding the foregoing, Confidential information shall not include
information that is subject to disclosure by Client in accordance with the Colorado Open Records Act or statutes that may govern disclosure of
criminal justice records.
1.5. "Documentation" means Visual Labs' summary of system features as well as other documentation relating to the Services and Platform, as
may be provided by Visual Labs to Client and as may be updated and amended from time to time.
1.6. "Feedback" means feedback, suggestions, improvements, and recommendations regarding the Services and Platform.
1.7. "Platform" means Visual Labs' Application, web -site platform, and technology infrastructure provided by Visual Labs supporting the Services
that perform functions as described in the Documentation, including but not limited to, facilitating live -streaming, recording, playback, archiving
and storage of Client Content, and data analysis of such Client Content.
1.8. "Proprietary Items" means, collectively, the Services, Platform, and Documentation, the visual expressions, screen formats, interfaces, and
other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated
into the Services, Platform, or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the
Services, Platform, or Documentation, all derivative works based upon any of the foregoing, and all copies of all of the foregoing.
1.9. "Services" means the services that Visual Labs provides through the Platform in accordance with the Documentation and this Agreement.
1.10. "Subscription Term" means the duration of Client's right to receive, access, and use the Services and Platform.
2. SUBSCRIPTION RIGHTS AND OBLIGATIONS
2.1. Subscription Rights. Subject to the terms and conditions of this Agreement, during the Evaluation Period as set forth in Schedule A, Visual
Labs grants to Client and its Authorized Users a non-exclusive, non -transferable license to (i) install the Application on up to the maximum number
of devices owned or controlled by Client as set forth on Schedule A and (ii) use and access the Platform as required to use the Services solely in
accordance with the Documentation for Client's internal business purposes in connection with Client's safety and security operations.
2.2. Visual Labs Obligations. Visual Labs shall host, operate, maintain, and support the Services and Platform.
2.3. Usernames and Passwords. Visual Labs will provide each Authorized User a unique username and password to enable such Authorized User
to access the Platform and Service pursuant to this Agreement. Client agrees not to allow a third party to use Client's accourrts, usernames or
passwords at anytime.
2.4. Client Responsibilities. Client agrees to comply with all relevant applicable laws, rules and regulations. Client represents and warrants that it
has the right, and has obtained all necessary consents and authorizations, including any consents and authorizations required under any privacy or
data security laws or regulations, to provide and disclose information to Visual Labs in connection with this Agreement.
2.5. Restrictions. Client shall not (a) make the Services or Platform available to any third party other than Authorized Users, (b) resell, lease,
distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (c) use the Services or Platform
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to promote any unlicensed, unfair, or illegal activities or for deceptive or illegal purposes, (d) decompile, disassemble, or reverse engineer the
Services or Platform, in whole or in part, or (e) use or access the Services or Platform to create (or have created) a competing or similar service.
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3.1. Client Content.
a) Client acknowledges that all Client Content is the sole responsibility of the Client. Client, and not Visual Labs, is entirely responsible
for all Client Content that Client records, uploads, accesses, stores, streams, displays, or transmits through the Platform.
b) Client grants Visual Labs a fully paid, royalty -free, worldwide, non-exclusive and fully sublicensable right and license during the
Evaluation Period to use and display Client Content (in whole or in part) for the purposes of providing, maintaining, and supporting
the Services and Platform in accordance with this Agreement. The Parties agree that the license and sublicense referred to in this
paragraph 3.1(b) is solely for the purpose of allowing Visual Labs to provide the Services and Platform and not for the purpose of
disclosing Client Content to any third party or for sales or marketing purposes. Visual Labs and any sub -licensee shall not provide
Client Content to a third party or use the same for sales or marketing without prior written consent and approval of Client.
3.2. Title and Ownership. All right, title, and interest in and to the Client Content (including all related patent, copyright, trademark, trade secret,
intellectual property and other ownership rights) are and will remain the sole and exclusive property of Client. All right, title, and interest in and to
the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will
remain the sole and exclusive property of Visual Labs and Visual Labs reserves all rights not expressly granted herein. Any derivative works,
modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties)
and any Feedback relating thereto will be solely and exclusively owned by Visual Labs. Client hereby assigns to Visual Labs any rights, title and
interest, including all intellectual property rights, in any Feedback and acknowledges that Visual Labs will be free to use Feedback for any purposes
in its sole discretion.
3.3. Archiving and Storage Visual Labs, as part of the Services and Platform shall securely store Client Content during the "Evaluation Period" set
forth in 5chedule A and for a period of three (3) years commencing upon the expiration of the "Evaluation Period". During the "Evaluation Period"
set forth in Schedule A and during the three-year period thereafter, Visual Labs shall maintain and Client shall have access to its Client Content
without any cost or expense. Client may copy, reproduce or use its Client Content as it determines in its sole discretion. Visual Labs shall promptly
assist Client by providing passwords or technical support so Client may access its Client Content as set forth herein. This paragraph shall survive
termination hereof.
In lieu of Visual Labs providing Client access to Client Content at the end of the Evaluation Period via the Visual Labs system, Visual Labs may, at no
cost to Client, provide Client with a copy of all Client Content, at which point, such Client Content shall be removed from the Visual Labs system and
destroyed so that the Client Content will not be provided by Visual Labs to any third party. The delivery of such Client Content to Client shall be via
DVD or other mutually agreed upon media.
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4.1. Fees and Expenses. In consideration for access and use of the Platform and Service, Client shall pay to Visual Labs, without offset or
deduction, the fees set forth in Schedule A.
4.2. Taxes. Client is a tax-exempt entity and shall not be responsible for payment of any taxes.
5. WARRANTY DISCLAIMER AND LIMITATIONS
5.1. Warranty. Visual Labs warrants that (a) the Platform and Services will perform substantially as specified in the Documentation and (b) the
implementation, support and training services will be performed in a professional manner consistent with applicable industry standards.
5.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE PROPRIETARY ITEMS AND ALL IMPLEMENTATION, SUPPORT,
TRAINING AND OTHER SERVICES ARE PROVIDED "A5 15" AND VISUAL LABS MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN,
EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, Visual Labs does
not represent or warrant that: (a) the Services or Platform will protect Client, its employees, personnel, or invitees, or Client's premises from any
specific threats or increase the security of Client's premises; or (b) the operation of the Services and Platform will be uninterrupted or error -free.
CLIENT ACKNOWLEDGES AND AGREES THAT CERTAIN FEATURES OF THE SERVICES AND PLATFORM MAY NOT WORK AND LOSS OF DATA MAY BE
POSSIBLE UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO, THE LOSS OF INTERNET, MOBILE SERVICE, OR WIRELESS
CONNECTION.
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5.3. Infringement. Visual Labs will indemnify and defend at its own expense any action against Client brought by a third party to the extent that
the action is based upon a claim that Client's use of the Proprietary Items authorized by and used in conformance with this Agreement infringes or
misappropriates any intellectual property rights of a third party and Visual Aid will be responsible for any damages or costs or monetary settlement
of such dispute without contribution from Client.
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Visual Labs' total aggregate liability under this Agreement shall under no circumstances exceed the limits of Visual Lab's insurance as set forth in
Section 10.1 hereof. The existence of multiple claims shall not enlargethis limitation.
7. CONFIDENTIALITY
All Confidential Information of a Party ("Disclosing Party") in the possession of the other ("Receiving Party"), whether or not authorized, shall be
held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential
Information. The Disclosing Partys Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as
necessary to implement or perform this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to
obtain a protective order. The Parties agree that Colorado law establishes very short and specific time frames for disclosure of certain records and
that the such time frames shall not be deemed to be unreasonable. The Receiving Party shall limit its use of and access to the Disclosing Party's
Confidential Information to only those of its employees or representatives whose responsibilities require such use or access and who are bound by
obligations of confidentiality at least as protective as those herein. The Receiving Party shall advise all such employees and representatives, before
they receive access to or possession of any of the Disclosing Party's Confidential Information, of the confidential nature of the Confidential
Information and require them to abide by the terms of this Section.
8. INTENTIONALLY OMITTED
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9.1. The initial Subscription Term shall begin on the Effective Date and shall terminate at the end of the "Evaluation Period" as set forth in
Schedule A. In the event the parties desire to enter into an agreement for a term beyond the "Evaluation Period" then the same shall be
accomplished through a separate Subscription Agreement to be negotiated and entered into by the parties.
9.2. Upon any termination or expiration of this Agreement, whether under this Section 9 or otherwise, (a) Client shall discontinue all access and
use of all Proprietary Items, and each Party shall promptly return any Confidential Information then in the other Party's possession or control, and
(b) Client shall uninstall the Application from any device owned or controlled by Client except as may be necessary for Client to access its Client
Content as set forth in Section 3.3. Visual Labs may provide the Client Content to Client via DVD or other mutually agreed upon format as set forth
in Section 3.3.
9.3. Client shall remain liable for all payments due to Visual Labs, if any, with respect to the period ending on the date of termination or
expiration. The provisions of Sections 1, 2.4, 2.5, 3, 5, 6, 7, 9.2, 9.3, and 10 shall survive any termination or expiration of this Agreement.
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10.1. Insurance. During the Subscription Term, Visual Labs will, at no cost to Client, maintain the following minimum insurance in full force and
effect: (i) commercial general liability insurance, including contractual liability coverage and coverage for bodily injury, personal injury, and
property damage in a combined single limit of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate and will name Eagle
County, Colorado as an additional insured thereon, (ii) workers' compensation insurance in compliance with all statutory regulations of the nation,
state, territory, or province having jurisdiction over Visual Labs' employees performing services under the Agreement with limits of not less than
$1,000,000 (or such greater amount as may be required by applicable law), and (iii) technology errors and omissions insurance in an amount not
less than $1,000,000 in the annual aggregate.
10.2. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have
been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either
Party may change its address for notices by giving written notice of the new address to the other Party.
10.3. Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint
venturers or agents.
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10, 4. Other Limitations. The warranties made by Visual Labs in this Agreement, and the obligations of Visual Labs under this Agreement, run only
to Client and not to any Authorized User or other third party. Under no circumstances shall any Client affiliate, Client customer, contractor,
personnel, invitee, or any other third party be considered a third -party beneficiary of this Agreement.
10.5. Entire Understanding. This Agreement states the entire understanding between the Parties with respect to its subject matter, and
supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the
subject matter of this Agreement. Any terms in an order or written purchase authorization that add to, or conflict with or contradict, any
provisions in the Agreement will have no legal effect.
10.6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in
writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement
of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any
subsequent breach of this Agreement.
10.7. Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such
unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of
the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to
effect, to the maximum extent allowable by law, the original intent of such provision.
10.8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
10.9. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Each
Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated
exclusively in state court in Eagle County, Colorado.
10.10. Force Majeure Neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to
perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any
military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of
communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any
other cause which could not have been prevented by the non-performing Party with reasonable care.
10.11. Intentionally Omitted.
10.12. Questions, Complaints, and Claims. Please contact us for any questions, complaints, or claims at: Visual Labs, Inc., Attention: Alexander
Popof, 607 Menlo Avenue, Menlo Park, CA 94025, (650) 485-1597, or team@visuallabsinc.com.
10.13 Tabor. Notwithstanding anything to the contrary contained in this Agreement, Client shall have no obligations under this Agreement
after, nor shall any payments be made to Visual Labs in respect of any period after December 31 of any year, without an appropriation therefor by
Client in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised
Statutes, the Local Government Budget Law (C. R. S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X. Sec. 20).
10.14 Colorado Governmental Immunity Act. The Parties hereto understand and agree that the Client is relying on, and does not waive or
intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado
Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its
elected officials, employees, agents and volunteers.
[END OF MASTER TERMS AND CONDITIONS]
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Schedule A
Eagle County, Colorado Sheriff's Office
The Services will be provided on a trial basis during an "Evaluation Period." The Evaluation Period shall begin on the Effective Date
and shall end on May 15, 2017 or otherwise upon mutual written agreement of Client and Visual Labs. Upon expiration of the
Evaluation Period, neither Party shall have any obligation to the other, except for those provisions of the Agreement that expressly
survive expiration or termination.
The Services will be provided via the use of two (2) smartphones (the "Devices') which will be provided to Client by AT&T. The
Devices will be deployed on Client employees and will be used primarily as a body worn camera to record the audio and video of
interactions between Client employees and the general public. While the Visual Labs Application is engaged, the Devices will also
record, and in certain cases transmit, the physical location (i.e. latitude and longitude) of the Device.
The Devices may be housed in smartphone cases to be provided by Visual Labs. It is the sole responsibility of Client, and not Visual
Labs, to verify that the Devices and the cases are appropriate for their employees and that they do not interfere with the duties of,
or compromise the safety of, the employees on which the Devices and cases are deployed. Client shall not be responsible for normal
wear and tear of the Devices or cases, but shall be responsible if any of the Devices or cases are lost, stolen or damaged. At the
conclusion of the Evaluation Period, Client shall return the Devices and cases to AT&T and Visual Labs, respectively.
It is understood by Client that certain "real time Services (e.g. live streaming) require a reasonably strong connection to the
internet. It is further understood that certain areas of the agency's jurisdiction may not support the required connection to the
internet for certain Services.
Visual Labs will provide training to Client management and its employees. Training will include the functionality and use of the
Application and the Visual Labs website, and will include access to online user guides for both the Application and the website.
Fees
Implementation and Training Fee
Visual Labs will not charge an implementation and training fee with respect to the Evaluation Period.
Subscription Fee
Visual Labs will not charge a subscription fee for the Services during the Evaluation Period.
Usage Fees
The Services include (i) up to two hundred (200) hours of video uploaded; (ii) up to ten (10) hours of live streaming video; and (iii) up
to five hundred (500) photos taken via the photo sequence function or the incident reporting function. Should Client exceed these
limits, the excess will be charged at a rate of five dollars ($5) per additional hour of video uploaded, twenty dollars ($20) per
additional hour of live streaming, and five cents ($0.05) per additional photo.
Maximum Website User Limit
Client shall be able to designate up to five (5) individuals to receive login credentials and use the Visual Labs website. The
designated users of the system may be changed at Client's discretion, provided that no more than five (5) users are designated at
any one time.
Fees for any Services beyond the Evaluation Period shall be based upon a mutual written agreement between Client and Visual Labs.
