Agreement with Brycer, LLC
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2237531/5/13399.000
BRYCER, LLC
4355 Weaver Parkway
Suite 230
Warrenville, IL 60555
January 19th, 2024
City of Glendale
11550 W Glendale Ave
Glendale, AZ 85301
Re:
“The Compliance Engine”
Dear City of Glendale:
We look forward to providing you with “The Compliance Engine” (the “Solution”). This proposal
letter provides the basic terms by which Brycer, LLC (“Brycer”) will provide you, City of Glendale
(“Client”), with the Solution. The use of the Solution and all matters between Brycer and Client will be
subject to the standard “Terms and Conditions” attached to this proposal as Exhibit A. The basic terms are
as follows:
1.
Term: Brycer will provide Client with the Solution for three years, commencing April 1st,
2024 (the “Initial Term”). Thereafter, the Term shall automatically renew for successive three year periods
unless terminated by Brycer or Client in writing at least 90 days prior to the expiration of the then current
Term (each, a “Renewal Term” and together with the Initial Term, the “Term”). Following the expiration
or termination of the Term (as provided in the Terms and Conditions), Client shall stop using the Solution;
provided, however, Brycer shall make available, and Client shall have the right to download, Client’s data
from the Solution for a period of 60 days after the expiration or termination of the Term. Client shall have
the right to terminate this agreement upon giving 90 days written notice to Brycer.
2.
Fees: Brycer will collect all fees due and payable by third party inspectors in connection
with activities relating to the Solution plus any additional fees charged by Client. Brycer will split revenue
50/50 with Client and Brycer will remit to Client, on a quarterly basis, the amount by which the AHJ Fees
exceed the amount of fees due and payable to Brycer in connection with third party inspectors use of the
Solution. The amount of the fees due and payable to Brycer in connection with third party inspectors use
of the Solution may be amended from time to time.
3.
Brycer Responsibilities: During the Term, Brycer shall be responsible for the following
in connection with Client’s use of the Solution:
•
Availability. Brycer shall make the Solution available to Client as set forth on Exhibit B.
The maintenance schedule and minimum service levels for the Solution are set forth on
Exhibit B.
•
Service Level. Brycer shall provide commercially reasonable levels of customer service
with respect to the Solution to all third parties who transact business with Client and access
the Solution.
•
Backup. Brycer shall backup the database used in connection with the Solution to a
separate server located within the same web hosting firm which the Solution is being hosted
on a real time basis. Upon request by Client (which can be no more than once a month) or
made prior to or within 60 days after the effective date of termination of the Term, Brycer
2237531/5/13399.000
will make available to Client a complete and secure (i.e. encrypted and appropriately
authenticated) download file of Client data in XML format including all schema and
attachments in their native format. Brycer shall maintain appropriate administrative,
physical and technical safeguards for protection of the security, confidentiality and
integrity of Client data. Brycer shall not (a) modify Client data or (b) disclose Client data
except as required by law.
•
Retention of Information. Brycer will maintain all information entered into the database
by third party inspectors for at least five years from the time such information is entered
into the database.
•
Notices. Brycer will be responsible for generating and delivering the following notices to
third parties in connection with the Solution: (a) reminders of upcoming inspections that
are due; (b) notices that an inspection is past due; and (c) notices of completed inspection
reports which contain one or more deficiencies.
•
Call Center Phone calls by Brycer on behalf of the Client to the property for EACH
life-safety system overdue for service based on dates automatically tracked within the
TCE database. Brycer is not an agent of the Client and all scripts for the overdue calls will
be approved by the Client.
•
Updates and Enhancements. In the event Brycer releases any updates, corrections, or
enhancements to the Solution during the Term, Brycer shall promptly provide such updates
or corrections to Client free of any charge or fee.
4.
Client Responsibilities: During the Term, Client shall be responsible for the following in
connection with Client’s use of the Solution:
•
Operating System. Client shall be solely responsible for providing a proper operating
environment, including computer hardware or other equipment and software, for any
portion of the Solution installed on the Client’s equipment (the “Client Access Software”)
and for the installation of network connections to the Internet. In addition to any other
Client Access Software requirements, Client must use version Edge, Firefox version 76,
Chrome 60 or Safari (or more recent versions), in addition to having a .pdf reader installed
on machines to view attachments.
•
Training. Client shall allow Brycer at Client’s facilities to train all applicable personnel
of Client on the use of the Solution.
•
Information. Client shall promptly provide Brycer with all appropriate information
necessary for Brycer to create the database for the Solution, including without limitation:
(a) all commercial building addresses within [ City of Glendale ] for Brycer’s initial
upload; and (b) quarterly updates to in a format acceptable to Brycer in its discretion.
•
Enforcement. Client shall take all actions necessary to require (e.g. resolution, ordinance,
fire policy, code amendment) the use of the Solution by third party inspection companies.
•
Reports. Client will require all compliant and deficient test results to be submitted.
5.
Ownership of Data. Client owns all the data provided by Client and received from third
party contractors for Client. Brycer shall maintain appropriate administrative, physical and technical
safeguards for protection of the security, confidentiality and integrity of Client’s data.
2237531/5/13399.000
Please acknowledge your acceptance of this proposal and our standard Terms and Conditions by
counter-signing this proposal below. We look forward to a long-term and mutually beneficial relationship
with you.
Brycer, LLC
By:
Its: President
Acknowledged and Agreed to this
___ day of ___________, 20____:
CITY OF GLENDALE, an Arizona
municipal corporation
__________________________________
Kevin R. Phelps, City Manager
ATTEST:
_______________________________________
Julie K. Bower, City Clerk
(SEAL)
APPROVED AS TO FORM:
______________________________________
Michael D. Bailey, City Attorney
2237531/5/13399.000
Exhibit A
Terms and Conditions
Any capitalized terms not defined in these Terms and Conditions shall have the meaning assigned to it in that certain Letter Agreement
attached hereto by and between Brycer, LLC and Client (the “Agreement).
1.
Restrictions on Use. Client shall not copy, distribute, create derivative
works of or modify the Solution in any way. Client agrees that: (a) it
shall only permit its officers and employees (collectively, the
“Authorized Users”) to use the Solution for the benefit of Client; (b) it
shall use commercially reasonable efforts to prevent the unauthorized
use or disclosure of the Solution; (c) it shall not sell, resell, rent or lease
the Solution; (d) it shall not use the Solution to store or transmit
infringing or otherwise unlawful or tortious material, or to store or
transmit material in violation of third party rights; (e) it shall not
interfere with or disrupt the integrity or performance of the Solution or
third-party data contained therein; (f) it shall not reverse engineer,
translate, disassemble, decompile or otherwise attempt to create any
source code which is derived from the Solution (g) it shall not permit
anyone other than the Authorized Users to view or use the Solution and
any screen shots of the Solution and (h) it shall not disclose the features
of the Solution to anyone other than the Authorized Users. Client is
responsible for all actions taken by the Authorized Users in connection
with the Solution.
2.
Proprietary Rights. All right, title and interest in and to the Solution,
the features of the Solution and images of the Solution as well any and
all derivative works or modifications thereof (the “Derivative Works”),
and any accompanying documentation, manuals or other materials
used or supplied under this Agreement or with respect to the Solution
or Derivative Works (the “Documentation”), and any reproductions
works made thereof, remain with Brycer. Client shall not remove any
product identification or notices of such proprietary rights from the
Solution. Client acknowledges and agrees that, except for the limited
use rights established hereunder, Client has no right, title or interest in
the Solution, the Derivative Works or the Documentation.
3.
Independent Contractor. Nothing in the Agreement may be construed
or interpreted as constituting either party hereto as the agent, principal,
employee or joint venturer of the other. Each of Client and Brycer is
an independent contractor. Neither may assume, either directly or
indirectly, any liability of or for the other party. Neither party has the
authority to bind or obligate the other party and neither party may
represent that it has such authority.
4.
Reservation of Rights. Brycer reserves the right, in its sole discretion
and with prior notice to Client, to discontinue, add, adapt, or otherwise
modify any design or specification of the Solution and/or Brycer’s
policies, procedures, and requirements specified or related hereto. All
rights not expressly granted to Client are reserved to Brycer, including
the right to provide all or any part of the Solution to other parties.
5.
Use of Logos. During the term of this Agreement, Brycer shall have
the right to use Client’s logos for the purpose of providing the Solution
to Client.
6.
Confidential Information. Brycer and Client acknowledge and agree
that in providing the Solution, Brycer and Client, as the case may be,
may disclose to the other party certain confidential, proprietary trade
secret information ("Confidential Information"). Confidential
Information may include, but is not limited to, the Solution, computer
programs, flowcharts, diagrams, manuals, schematics, development
tools, specifications, design documents, marketing information,
financial information or business plans. Each party agrees that it will
not, without the express prior written consent of the other party,
disclose any Confidential Information or any part thereof to any third
party. Notwithstanding the foregoing, the parties acknowledge that
Client and Brycer shall be permitted to comply with any all federal and
state laws concerning disclosure provided that any such required
disclosure will not include any of Brycer’s screen shots. The disclosing
party shall provide prior written notice of any required disclosure of
the
nondisclosing
party’s
Confidential
Information
to
the
nondisclosing party and shall disclose only the information that is
required to be disclosed by law. In the event that Client requests from
Brycer any reports or other information for purposes of complying with
federal and state disclosure laws, Brycer shall provide such information
within five business day following such request. Confidential
Information excludes information: (a) that is or becomes generally
available to the public through no fault of the receiving party; (b) that
is rightfully received by the receiving party from a third party without
limitation as to its use; or (c) that is independently developed by
receiving party without use of any Confidential Information. At the
termination of this Agreement, each party will return the other party all
Confidential Information of the other party. Each party also agrees that
it shall not duplicate, translate, modify, copy, printout, disassemble,
decompile or otherwise tamper with any Confidential Information of
the other party or any firmware, circuit board or software provided
therewith.
7.
Brycer Warranty. Brycer represents and warrants to Client that Brycer
has all rights necessary in and to any patent, copyright, trademark,
service mark or other intellectual property right used in, or associated
with, the Solution, and that Brycer is duly authorized to enter into this
Agreement and provide the Solution to Client pursuant to this
Agreement.
8.
Disclaimer. All information entered into Brycer’s database is produced
by third party inspectors and their agents. THEREFORE, BRYCER
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY AS TO THE ACCURACY OR COMPLETENESS
OF ANY INFORMATION ENTERED INTO BRYCER’S
DATABASE BY EITHER CLIENT OR THIRD PARTY
INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7,
BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY
OTHER INFORMATION AND ALL OTHER WARRANTIES,
WHETHER
EXPRESS
OR
IMPLIED,
ARE
HEREBY
DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. BRYCER'S SOLE
LIABILITY FOR BREACH OF THE REPRESENTATION AND
WARRANTY SET FORTH IN SECTION 7, AND CLIENT'S
SOLE REMEDY, SHALL BE THAT BRYCER SHALL
INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM
AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR
DEFENSE
ARISING
OUT
OF
BREACH
OF
THE
REPRESENTATION AND WARRANTY.
9.
LIMITATION ON DAMAGES. BRYCER SHALL ONLY BE
LIABLE TO CLIENT FOR DIRECT DAMAGES PURSUANT
TO THE AGREEMENT. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 7, IN NO EVENT SHALL BRYCER
BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR
SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS
OF
PROFITS
OR
SYSTEM
DOWNTIME.
CLIENT
ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL
BRYCER 'S LIABILITY FOR ANY LOSS OF DATA OR DATA
INTEGRITY EXCEED THE REPLACEMENT COST OF THE
MEDIA ON WHICH THE DATA WAS STORED.
10. Risks Inherent to Internet. Client acknowledges that: (a) the Internet is
a worldwide network of computers, (b) communication on the Internet
may not be secure, (c) the Internet is beyond the control of Brycer, and
(d) Brycer does not own, operate or manage the Internet. Client also
acknowledges that there are inherent risks associated with using the
Solution, including but not limited to the risk of breach of security, the
risk of exposure to computer viruses and the risk of interception,
distortion, or loss of communications. Client assumes these risks
knowingly and voluntarily releases Brycer from all liability from all
2237531/5/13399.000
such risks. Not in limitation of the foregoing, Client hereby assumes
the risk, and Brycer shall have no responsibility or liability of any kind
hereunder, for: (1) errors in the Solution resulting from misuse,
negligence, revision, modification, or improper use of all or any part of
the Solution by any entity other than Brycer or its authorized
representatives; (2) any version of the Solution other than the then-
current unmodified version provided to Client; (3) Client's failure to
timely or correctly install any updates to the Client Access Software;
(4) problems caused by connecting or failure to connect to the Internet;
(5) failure to provide and maintain the technical and connectivity
configurations for the use and operation of the Solution that meet
Brycer’s recommended requirements; (6) nonconformities resulting
from or problems to or caused by non-Brycer products or services; or
(7) data or data input, output, accuracy, and suitability, which shall be
deemed under Client’s exclusive control.
11. Indemnity. Removed with approval of Matt Rice and The City of
Glendale.
12. Breach. Brycer shall have the right to terminate or suspend this
Agreement, and all of Client’s rights hereunder, immediately upon
delivering written notice to Client detailing Client’s breach of any
provision of this Agreement. If Client cures such breach within 5 days
of receiving written notice thereof, Brycer shall restore the Solution
and Client shall pay any fees or costs incurred by Brycer in connection
with the restoration of the Solution.
13. Illegal Payments. Client acknowledges and agrees that it has not
received or been offered any illegal or improper bribe, kickback,
payment, gift or anything of value from any employee or agent of
Brycer in connection with the Agreement.
14. Beneficiaries. There are no third party beneficiaries to the Agreement.
15. Force Majeure. Neither party shall be responsible for any failure to
perform due to unforeseen, non-commercial circumstances beyond its
reasonable control, including but not limited to acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, floods,
earthquakes, blackouts, accidents, or strikes. In the event of any such
delay, any applicable period of time for action by said party may be
deferred for a period of time equal to the time of such delay, except
that a party's failure to make any payment when due hereunder shall
not be so excused.
16. Notices. All notices required in the Agreement shall be effective: (a)
if given personally, upon receipt; (b) if given by facsimile or electronic
mail, when such notice is transmitted and confirmation of receipt
obtained; (c) if mailed by certified mail, postage prepaid, to the last
known address of each party, three business days after mailing; or (d)
if delivered to a nationally recognized overnight courier service, one
business day after delivery.
17. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE
GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE
LAWS OF THE STATE IN WHICH CLIENT EXISTS APPLICABLE
TO CONTRACTS MADE IN SUCH STATE AND THAT ARE TO
BE WHOLLY PERFORMED IN SUCH STATE WITHOUT
REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF SUCH
STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL
ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR
RESPECT ARISING OUT OF OR FROM OR RELATED TO THE
AGREEMENT SHALL BE LITIGATED ONLY IN COURTS
LOCATED WITHIN THE STATE IN WHICH CLIENT EXISTS.
THE PARTIES HEREBY CONSENT AND SUBMIT TO THE
EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURT LOCATED WITHIN SAID STATE. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL
BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
18. Attorneys’ Fees. The prevailing party in any proceeding in connection
with the Agreement shall be entitled to recover from the non-prevailing
party all costs and expenses, including without limitation, reasonable
attorneys’ and paralegals’ fees and costs incurred by such party in
connection with any such proceeding.
19. Entire Agreement. The Agreement sets out the entire agreement
between the parties relative to the subject matter hereof and supersedes
all prior or contemporaneous agreements or representations, oral or
written.
20. Amendment. The Agreement may not be altered or modified, except
by written amendment which expressly refers to the Agreement and
which is duly executed by authorized representatives of both parties.
The waiver or failure by either party to exercise or enforce any right
provided for in the Agreement shall not be deemed a waiver of any
further right under the Agreement. Any provision of the Agreement
held to be invalid under applicable law shall not render the Agreement
invalid as a whole, and in such an event, such provision shall be
interpreted so as to best accomplish the intent of the parties within the
limits of applicable law. The Agreement may be executed by facsimile
and in counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
21. Expiration. The rights and obligations contained in these Terms and
Conditions shall survive any expiration or termination of the
Agreement.
2237531/5/13399.000
Exhibit B
Maintenance Schedule and Minimum Service Levels
1.
Uptime and Maintenance.
The Solution shall be available 24 hours per day during the term of this Agreement. The
Solution shall be fully functional, timely and accessible by Client at least 99.5% of the
time or better and Brycer shall use reasonable efforts to provide Client with advance
notice of any unscheduled downtime.
2.
Response Time.
Brycer shall respond to telephone calls from Client within two hours of the call and/or
message and all emails from Client within two hours of the receipt of the email.
3.
Customer Support
Customer support hours are 24/7/365. The toll free number is 1-630-413-9511
Brycer will assign client a dedicated customer representative with direct access to their
email and work number.