Agreement with Badger Meter Inc
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BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 1 of 34
This BEACON SAAS MANAGED SOLUTION MASTER AGREEMENT
(“Agreement”) is entered into as of the
(the “Effective Date”)
by and between Badger Meter, Inc. , a Wisconsin corporation with offices located at
4545 W. Brown Deer Road, Milwaukee, Wisconsin 53223 (“Badger Meter”) , and the
City of Glendale, an Arizona municipal corporation, and its officers, board members,
elected and appointed officials, employees, agents, consultants, contractors and
other authorized representatives (collectively, “City”).
(1)
SERVICE. Badger Meter and its cellular service aggregator and data-hosting service
providers (“Suppliers”) have developed a hosted, on-demand, web-based service
website (“Portal”) accessible to its customers to provide metering and water usage
service information, communicated through a cellular network, for its customers
(“Service”), and documentation to assist customers in using the Portal and the Service
(“Documentation”). Badger Meter’s Suppliers are not parties to this Agreement.
(2)
RIGHT TO ACCESS AND USE THE PORTAL AND SERVICE. In consideration
of the payment of the Service Fees as set forth in Section 5, Badger Meter grants to City
(“Authorized User”) and City’s approved end-user water customers (“Authorized
Consumer”) the right to remotely access and use the Service from the Portal (as currently
configured) for City’s internal business use and for the benefit of its Authorized
Consumers in accordance with this Agreement. Any rights and obligations in this
Agreement relative to City and its Authorized Consumers will only be in effect when
City affirmatively enables the EyeOnWater Service.
(3)
OWNERSHIP OF PORTAL AND SERVICE.
(a)
Badger Meter Service. Badger Meter owns all rights, title and interest in the
Portal, Service and Documentation, including all associated intellectual property
rights. Neither City, nor its Authorized Consumers will obtain any rights, title or
interest in the Portal, Service, or Documentation or any associated intellectual
property rights, other than the right to access and use the Portal, Service and
Documentation, subject to the terms of this Agreement.
(b)
Suggestions.
If City provides Badger Meter any suggested improvements
(“Suggestions”) to the Portal, Service or Documentation, City agrees that Badger
Meter will own all rights, title and interest in and to the Suggestions, even if City has
designated the Suggestions as confidential. Badger Meter will be entitled to use the
Suggestions without restriction. By entering into this Agreement, City irrevocably
assigns, conveys and transfers to Badger Meter all right, title and interest in and to
the Suggestions.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 2 of 34
(4)
TERM. The term of this Agreement begins on the Effective Date and continues for
a ten (10) year term unless earlier terminated in accordance with Section 16 of the
Agreement (the “Term”). The City may, in its sole, unreviewable discretion, extend the
Term of this Agreement for two additional (2) five-year terms. The City will notify Badger
Meter 30 days in advance of the expiration of the then applicable term if it wishes to
exercise its right to extend the term. There are no automatic extensions or renewals of
this Agreement.
(5)
FEES.
(a) Service Fees. In consideration for the right to access and use the Portal, Service
and Documentation, City agrees to pay Badger Meter certain fees (“Service Fees”)
to obtain enterprise-wide access to the Portal, Service and Documentation,
authorizing all of its Authorized Consumers to use the Portal and Service and
Documentation in accordance with the terms of this Agreement, pursuant to the
pricing set forth in Exhibit 1 - Fees.
(b) Taxes All prices are exclusive of all sales, use, value added, customs and excise
taxes, if any, and any other taxes, duties, fees and charges of any kind imposed by
any other governmental authority in connection with this Agreement. City shall pay
or reimburse Badger Meter on demand for all such taxes, duties, fees and charges
but City shall not be responsible for any taxes imposed on, or with respect to, Badger
Meter's income.
(6) RESTRICTIONS ON RIGHT TO USE. City agrees that it will not use or permit or
assist another to use the Portal, Service or Documentation in violation of this Agreement,
including ageing not to:
(a) Sell, license, resell, sublicense, or otherwise permit any third parties other than
Authorized Consumers to access or use the Portal, Service, or Documentation.
(b) Remove patent, copyright, trademark or other intellectual property markings
from the Portal, Service or Documentation.
(c)
Modify, alter, tamper with, repair or otherwise create derivatives from the
Portal, Service or Documentation.
(d) Copy, reverse engineer, disassemble or decompile the Portal, Service or
Documentation or apply any other process or procedure to derive the source code
from any software included in the Portal or Service.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 3 of 34
(e) Use the Portal or Service in a manner that violates any applicable international,
federal, state or local laws, rules or regulations.
(f)
Assert or authorize, assist or encourage any third party to assert against Badger
Meter, its affiliates, customers, vendors, business partners, Servicers or licensors any
intellectual property infringement Claim regarding the Portal, Service or
Documentation.
(g) Transmit content or messages that are illegal, fraudulent, threatening, abusive,
defamatory, or obscene.
(h) Make any unauthorized connection to Badger Meter’s information technology
architecture (“Network”).
(i)
Communicate any unsolicited commercial, voice, SMS, or other message.
(j)
Upload or transmit any “virus,” “worm,” or malicious code or access, alter, or
interfere with the communications of and/or information about another customer.
(k) Take actions that could cause damage to or adversely affect Badger Meter, the
Service, Portal, Network or the property or reputation of Badger Meter.
City and Badger Meter agree to make good faith efforts to minimize abuse or fraudulent
use of the Portal and Service, to promptly report to each other any such abuse or
fraudulent use of which they become aware, and to fully cooperate in any investigation
or prosecution initiated by Badger Meter or City related to abuse or fraudulent use of the
Portal and Service.
(7)
CUSTOMER SUPPORT.
Badger Meter will provide City the support services
described in Exhibit 2 - Service Level Agreement.
(8)
CITY DATA.
(a) City Data Defined. City and Authorized Consumers may provide Badger
Meter with certain, customer billing information, financial information, personally
identifiable information or other protected content (“City Data”). Badger agrees to
keep such City Data confidential, consistent with Arizona law, and Section 9 below.
(b) Ownership. The Parties agree that the City Data is and shall remain the sole
and exclusive property of City and/or its Authorized Consumers, including but not
limited to any personal privacy or intellectual rights in the City Data.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 4 of 34
(c) Use of City Data by Badger Meter. City and its Authorized Consumers consent
to Badger Meter’s right to host, access, store, copy and use the City Data as
reasonably necessary to provide, maintain, repair and enhance the Portal, Service
and Documentation. Badger Meter may disclose certain City Data only to the extent
necessary to provide the Service to City or its Authorized Consumers or to comply
with the law or request of a governmental or regulatory body (including subpoenas
or court orders as described in Section 9).
(d) City Responsibilities. City is solely responsible for the development, content,
operation and maintenance of City Data, including but not limited to the technical
operation of the City Data, and ensuring that calls made to the Service from City’s
network are compatible with then-current API’s for the Service. City is responsible
to ensure that it and its Authorized Consumers, to the extent practicable, comply
with the Badger Meter Terms of Use Policy, the Badger Meter Privacy Policy or any
other policies referenced in this Agreement and Arizona law.
(9)
CONFIDENTIALITY.
(a) Confidential Information Defined. For purposes of this Agreement,
Confidential Information means all nonpublic information disclosed by one party
to the other that is designated as confidential or that given the nature of the
information or circumstances surrounding its disclosure, reasonably should be
understood to be confidential, including but not limited to: (a) nonpublic
information related to Badger Meter or its technology, customers, business plans,
intellectual property, promotional and marketing activities, finances and other
business affairs; (b) third party information Badger Meter is obligated to keep
confidential; (c) the content and existence of any discussions or negotiations
between the parties; (d) Badger Meter’s intellectual property used in providing the
Portal, Service or Documentation; and (e) City Data.
(b) Protection of Confidential Information. To the extent permitted by law, t he
parties agree to hold the other party’s Confidential Information in strict confidence
and will not copy, reproduce, give, sell, assign, license, market, transfer or otherwise
dispose of the Confidential Information of the other party to any third parties or use
the Confidential Information for any purposes whatsoever other than as
contemplated by this Agreement. The Parties will take all reasonable steps to avoid
disclosure, dissemination or unauthorized access to or use of the Confidential
Information during the Term and for a period of five (5) years after the end of the
Term, except that Confidential Information which is designated as personally
identifiable information, sensitive or a trade secret shall continue to be subject to
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 5 of 34
these confidentiality obligations in perpetuity and survive the termination of this
Agreement.
(c) Traffic Information. All non-confidential data (generally, aggregated system
data stripped of PII) generated or collected by Badger Meter through operation of
the Portal and Service is referred to as the “Traffic Data.” Badger Meter may use
Traffic Data for any purpose consistent with this Agreement.
(d) Third Party Requests for Confidential Information.
Neither party may
disclose the other party’s Confidential Information except subject to the restrictions
in this Agreement or as otherwise required by law, including a court order from a
court of competent jurisdiction. If a party receives a request for access to the other
party’s Confidential Information from a third party, the receiving party agrees to
inform the disclosing party in writing within five (5) business days of receipt of the
request unless prohibited by law.
The party objecting to the disclosure of the
requested Confidential Information may then seek an injunction or other judicial
action to bar such disclosure.
(e) Exclusions from Confidential Information. Confidential Information of a
party shall not include information which: (i) is in or becomes part of the public
domain through no fault of the receiving party; (ii) the receiving party can prove
was known to it prior to its receipt from the disclosing party without reference to
the Confidential Information; (iii) is independently developed by the receiving party
outside of this Agreement without use of the disclosing party’s Confidential
Information; or (iv) is obtained by the receiving party from a third party which had
no obligation of confidentiality to the disclosing party.
(10) CITY’S REPRESENTATIONS AND WARRANTIES. City represents and warrants
to Badger Meter that:
(a) Authority. City has the right and authority to enter into this Agreement and to
meet its financial and legal obligations under this Agreement.
(b) Ownership. City or its Authorized Consumers own all rights, title and interest
in and to the City Data. City has all rights in the City Data necessary to grant the
rights to Badger Meter contemplated under this Agreement. If Badger Meter allows
unauthorized users to access the City’s Data, the City has the right, but not the
obligation, to terminate this Agreement and the Agreement will immediately
become null and void.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 6 of 34
(c) Compliance with the Law. Neither City nor its Authorized Consumers will
access or use the Portal, Service or Documentation in any manner that violates any
applicable international, federal, state or local laws and/or regulations, including
but not limited to all applicable data protection, intellectual property and privacy
laws.
(11) REPRESENTATIONS AND WARRANTIES OF BADGER METER.
(a)
Authority. Badger Meter represents and warrants to City that it has the right
and authority to enter into this Agreement and to perform its obligations under this
Agreement.
(b)
Service Warranty. Badger Meter represents and warrants to City that the Portal
and Service will be provided pursuant to Exhibit 2 – Service Level Agreement. In
providing the Portal and Service, Badger Meter will maintain sufficient data storage
capacity to satisfy the technical requirements of this Agreement and the required
storage capacity to host the Portal and Service. If City allows unauthorized users to
access the Portal, Service or Documentation, this express limited warranty will
immediately become null and void.
(c)
Remedy for Breach of the Express Limited Warranty. If the Portal, Service or
Documentation fail to meet the terms of the express limited warranty set forth in
Section 11(b), City shall notify Badger Meter promptly as defined in Exhibit 2 –
Service Level Agreement. In the event Badger Meter breaches the express limited
warranty, City will be provided a Service credit to be calculated in accordance with
Exhibit 2 – Service Level Agreement, and it may also immediately terminate this
Agreement for cause or seek any other remedies available under applicable laws of
the State of Arizona.
(d)
DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS
LIMITED WARRANTY SET FORTH IN SECTION 11(b), BADGER METER
MAKES NO OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR
WARRANTIES AS TO THE PORTAL, SERVICE OR DOCUMENTATION.
BADGER METER EXPRESSLY DISCLAIMS ANY OTHER EXPRESS OR
IMPLIED WARRANTIES WITH REGARD TO THE PORTAL, SERVICE OR
DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT,
FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR IMPLIED
WARRANTIES ARISING FROM A COURSE OF DEALING, INDUSTRY
PRACTICE OR USAGE OF TRADE.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 7 of 34
BADGER METER EXPRESSLY DISCLAIMS THAT THE PORTAL AND
SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL
COMPONENTS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES AS TO
THE
RELIABILITY,
QUALITY,
SECURITY,
CONDITION,
DESIGN,
SUITABILITY, INTER-OPERABILITY, AVAILABILITY, COMPLETENESS OF
THE PORTAL OR SERVICE OR THAT ANY DATA, INCLUDING THE CITY
DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
NOTWITHSTANDING THE DISCLAIMER IN THE PRIOR SENTENCE, THE
OBLIGATIONS AND REMEDIES AVAILABLE TO THE CITY UNDER LAW
FOR BADGER METER’S BREACH OF ANY PROVISION OF THIS
AGREEMENT SHALL NOT BE AFFECTED AND SHALL CONTROL OVER THE
TERMS OF THIS PROVISION.
(e)
ESSENTIAL TERMS. THE ENFORCEABILITY OF THIS SECTION 11 IS
ESSENTIAL TO BADGER METER’S WILLINGNESS TO ENTER INTO THIS
AGREEMENT WITH CITY.
(12)
LIMITATION ON DAMAGES.
(a)
DIRECT DAMAGES. IF ANY PARTY DEFAULTS IN ITS OBLIGATIONS
UNDER THIS AGREEMENT, THE NON-BREACHING PARTY WILL BE
ENTITLED TO RECOVER FROM THE BREACHING PARTY STATUTORY
DAMAGES AS PROVIDED UNDER ANY APPLICABLE PROVISION OF
ARIZONA LAW AND THE ACTUAL AND DIRECT DAMAGES THAT THE
NON-BREACHING PARTY MAY INCUR AS A RESULT OF SUCH BREACH.
(b) CAP ON DAMAGES. NEITHER PARTY NOR ANY OF ITS RESPECTIVE
AFFILIATES’ ANNUAL LIABILITY UNDER THIS AGREEMENT WILL EXCEED
US $500,000 ANNUALLY.
NOTWITHSTANDING THE FORGOING, SPECIFICALLY FOR CLAIMS DUE
TO DIRECT DAMAGES RELATED TO A DATA BREACH OR BREACH OF
CONFIDENTIALITY CAUSED BY A PARTY’S GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT, THE PARTIES AGREE THE LIABILITY FOR
THE OTHER PARTY WILL IN NO EVENT EXCEED $1,000,000.
NOTHING IN THIS SECTION 12 WILL LIMIT CUSTOMER’S OBLIGATION
TO PAY BADGER METER FOR USE OF THE SERVICES PURSUANT TO
SECTION 5.
(c)
LIMITS ON DAMAGES.
EXCEPT FOR PAYMENT OBLIGATIONS
ARISING UNDER SECTIONS 13 AND 14 (INDEMNIFICATION), NEITHER
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 8 of 34
PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CLAIMS,
DEMANDS,
ACTIONS,
LOSSES,
DAMAGES,
FINES,
JUDGMENTS
SETTLEMENTS, COSTS, EXPENSES, ATTORNEY’S FEES, AND COURT
COSTS OR ANY OTHER LIABILITIES OF ANY NATURE WHATSOEVER,
INCLUDING
BUT
NOT
LIMITED
TO
THE
PORTAL,
SERVICE,
DOCUMENTATION, OR THE SUBJECT MATTER OF THIS AGREEMENT
(“CLAIM”).
FURTHER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE OR ENHANCED DAMAGES, LOST REVENUE OR PROFITS OR
DIMINUTION OF VALUE, OR OTHER ECONOMIC ADVERSITY, CLAIMS
RESULTING FROM LOSS OF CUSTOMER DATA, OR BREACH OF
CONFIDENTIALITY, ARISING OUT OF, OR RELATING TO, AND/OR IN
CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT
THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED. THIS PROVISION DOES NOT APPLY
TO EITHER PARTY’S LIABILITY FOR DIRECT DAMAGES RELATED TO A
DATA BREACH OR BREACH OF CONFIDENTIALITY CAUSED BY A PARTY’S
GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
BADGER METER WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION,
REIMBURSEMENT OR DAMAGES ARISING IN CONNECTION WITH: (A)
CITY’S INABILITY TO USE THE PORTAL OR SERVICE, INCLUDING AS A
RESULT OF ANY: (i) TERMINATION OR SUSPENSION OF
THIS
AGREEMENT OR CITY’S USE OF OR ACCESS TO THE SERVICE; OR (ii)
WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL
AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF
ALL OR A PORTION OF THE SERVICE FOR ANY REASON ENTIRELY
BEYOND THE CONTROL OF BADGER METER, INCLUDING BUT NOT
LIMITED TO AS A RESULT OF A POWER OUTAGE, SYSTEM FAILURE OR
OTHER INTERRUPTION; (B) THE COST OF PROCUREMENT OF SUBSTITUTE
SERVICES, UNLESS SUCH COST IS INCURRED TO MITIGATE CITY’S
DAMAGES FOR A BREACH OF THIS AGREEMENT BY BADGER METER; (C)
ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS MADE BY CITY
IN CONNECTION WITH THIS AGREEMENT OR CITY’S USE OF OR ACCESS
TO THE SERVICE ;OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION
OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO
STORE ANY OF CITY’S DATA, UNLESS SUCH UNAUTHORIZED ACCESS
FOR THE RESULT OF A BREACH OF THIS AGREEMENT BY BADGER METER.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
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(13)
CITY’S INDEMNIFICATION OBLIGATIONS.
(a)Generally. City agrees to defend, indemnify, and hold harmless Badger Meter
and its officers, employees, and directors against any and all Claims made against
Badger Meter by any third party arising out of or related to: (i) City or Authorized
Consumers access and use of the Portal, Service, or Documentation; (ii) the City’s
breach of this Agreement; (iii) violation of applicable law by City or Authorized
Consumers; or (iv) a dispute between City and any Authorized Consumer.
(b)
Procedure for Indemnification. Upon receipt of a Claim, Badger Meter
will provide prompt written notice to City of the Claim for which Badger Meter
seeks indemnification. Badger Meter’s failure to promptly notify City will waive
City’s obligation to indemnify Badger Meter. The notice must include a
description of the Claim with reasonable detail of the facts giving rise to the Claim.
Upon receipt of notice of a Claim, City shall be obligated to assume and control
the defense of such Claim at its own expense. Badger Meter may retain its own
counsel to cooperate in defending the Claim, at its own expense. Badger Meter
agrees to cooperate with City in defending the Claim and in making available to
City all witnesses, records, materials and information in its possession or control
to assist in the defense of the Claim, as is requested by City. City may not settle or
compromise any Claim or consent to the entry of any judgment unless Badger
Meter provides prior written consent and Badger Meter is given an unconditional
written release from City with respect to the Claim. In the event City fails to
defend, indemnify, and hold Badger Meter harmless, after notice of a request for
indemnification, Badger Meter shall be entitled to assume the defense and seek
reimbursement from City for all losses with regard to the Claim and all attorneys’
fees and litigation costs expended by Badger Meter in defending the Claim.
Nothing in this Indemnification provision or procedure shall be construed to
waive any defense the City may have to such Claim under Arizona law.
(c) Exclusions. The City assumes no liability for, and Badger Meter will not be
entitled to receive indemnification from City for, any Claim which results directly
and solely from: (i) Badger Meter’s failure to provide the Portal or Service in
conformity with the Documentation; (ii) Badger Meter’s actions in combining the
Service with any unapproved third party software, technology, hardware or data;
or (iii) Badger Meter’s violation of access granted in Section 2 of this Agreement;
or (iv) Badger’s material breach of any provision of this Agreement.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
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(14) BADGER METER’S INDEMNIFICATION OBLIGATIONS.
(a) Generally. Subject to the limitation on damages provisions set forth in Section
12 of this Agreement, Badger Meter agrees to indemnify, defend and hold harmless
City, and as applicable its officers, directors, members, board members, governing
members, trustees, commissioners, elected and appointed officials, employees,
agents, consultants and other representatives (“City Parties”) from and against any
and all Claims made against City Parties by any third party arising out of or related
to: (i) Badger Meter’s design, construction, implementation or the third party’s use
of the Portal, Service, or Documentation; (ii) Badger Meter’s material breach of this
Agreement or any negligent act committed by Badger Meter related to its terms; (iii)
violation of applicable law by Badger Meter; or (iv) a dispute between Badger Meter,
the City and/or any Authorized Consumer.
(b) Mitigation. If the Portal, Service or Documentation becomes the subject of a
Claim and the City or any Authorized Consumer is enjoined from its use of such
services, Badger Meter will have the right to: (i) procure for City and its Authorized
Consumers the right to continue using the Portal and Service; (ii) modify the Portal
and Service to avoid any service interruption, provided the modification does not
materially change the functionality of the Portal and Service; (iii) replace the Portal
and Service with an equally suitable, functionally equivalent Portal and Service; or
(iv) immediately terminate this Agreement and provide City with a refund of any
unused pre-paid portion of the Service Fees and any actual damages incurred to
obtaining replacement services, as provided in Section 12 above.
(d) Exclusions. Badger Meter assumes no liability for, and City will not be entitled
to receive, indemnification for any Claim which results directly and solely from: (i)
City’s failure to use the Portal or Service in conformity with the Documentation; (ii)
City’s actions in combining the Service with any third party software, technology,
hardware or data; or (iii) City’s violation of access granted in Section 2 or City’s
material breach of any provision of this Agreement.
(c) Procedure for Indemnification. Upon receipt of a Claim, City will provide
prompt written notice to Badger Meter of the Claim for which the City Parties seek
indemnification. City’s failure to promptly notify Badger Meter will not affect
Badger Meter’s obligation to indemnify the City Parties. The notice must include a
description of the Claim with reasonable detail of the facts giving rise to it. Upon
receipt of notice of a Claim, Badger Meter shall be obligated to assume and control
the defense of such Claim at its own expense. City may retain its own counsel to
cooperate in defending the Claim, at its own expense. City agrees to cooperate with
Badger Meter in defending the Claim and in making available to Badger Meter all
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MASTER AGREEMENT
©2020 Badger Meter, Inc.
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witnesses, records, materials and information in City’s possession or control to assist
in the defense of the Claim as is reasonably requested by Badger Meter. Badger
Meter may not settle or compromise any Claim or consent to the entry of any
judgment unless City provides prior written consent and the City is given an
unconditional written release from Badger Meter with respect to the Claim. In the
event Badger Meter fails to defend, indemnify, and hold the City Parties harmless,
after notice of a request for indemnification, City shall be entitled to assume the
defense and seek reimbursement from Badger Meter for all losses with regard to the
Claim and all attorneys’ fees and litigation costs expended by Customer in
defending the Claim.
(15) TERMINATION.
(a) Termination for Convenience. City may terminate this Agreement for any
reason by providing Badger Meter written notice of termination at least ninety (90)
days in advance of the effective date of such termination. Badger Meter shall be
entitled to receive just and equitable compensation for any services performed
hereunder through the date of the termination. After receipt of a notice of
termination for convenience, Badger Meter will cancel or divert related services and
settle all outstanding liabilities associated with the cancellation of such
commitments as promptly as possible, but in no case longer than 60 days after the
termination becomes effective.
Lack of Appropriations. Nothing in this Agreement guarantees that some or all of
the funds necessary to comply with all of the City’s obligations under this
Agreement will be appropriated or otherwise be available. The City agrees to seek
such appropriations in good faith from the City Council and agrees not to use the
lack of appropriation as a substitute for termination for convenience. If sufficient
funds are not appropriated or otherwise available, the City may unilaterally
terminate this Agreement after providing thirty (30) days written notice. In the
event the City provides such notice, the City will not be entitled to a refund or offset
of any amounts previously paid but will not pay any amounts that become due after
providing such notice.
(b) Termination for Cause. A party is in default under this Agreement if it
materially breaches or materially fails to perform its obligations under this
Agreement, which includes any failure to make undisputed payments pursuant to
Section 5 (“Event of Default”).
(c) Opportunity to Cure. Upon the occurrence of an Event of Default, the non-
defaulting party shall deliver a written notice describing the Event of Default (the
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
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“Cure Notice”). If the receiving party has not cured the Event of Default within
thirty (30) days after receipt of the Cure Notice, then the non-defaulting party shall
have the right to terminate this Agreement, at its option, by delivering to the
defaulting party a written notice of termination (the “Termination Notice”).
(d) Immediate Right to Terminate. Either party shall have the right to
immediately terminate this Agreement: (i) in order to protect its Confidential
Information; (ii) in order to comply with applicable law; (iii) upon discovery that the
other party made a representation or warranty which was materially untrue as of
the Effective Date or is materially untrue at any time during the Term; or (iv) upon
an assignment for the benefit of creditors, the appointment of a receiver to manage
its business or assets, or avails itself of, or becomes subject to, any proceeding under
any statute relating to insolvency or for the protection of creditor rights or if a party
becomes insolvent or technically bankrupt.
(e) Termination. Upon delivery of the Termination Notice to the other party: (i)
Badger Meter may cease providing Services to City and Authorized Consumers; (ii)
City may cease paying Badger Meter for its Portal, Services or Documentation; (iii)
City and Authorized Consumers will have no further right to use the Portal, Service
or Documentation, and will immediately cease using the Portal, Service and
Documentation, and will receive no further Service; (iv) each party will deliver to
the other any Confidential Information in its possession or control, and (v) Badger
Meter will cease gathering data from City’s endpoints. Within a reasonable time
after termination, not to exceed 30 days, Badger Meter will scrub the personally
identifiable information from the City Data. City must immediately return, or at
Badger Meter’s option, destroy all Documentation provided to City by Badger
Meter. City will remain liable for any Service Fees incurred prior to termination.
(f)
Post – Termination Assistance. Upon termination of this Agreement for any
reason, upon request by the City, Badger Meter will provide post-termination data
retrieval assistance to City for an additional fee, which shall be invoiced at the rate
of $200/hour, with the number of hours required agreed to in advance and
determined by the amount of data City wishes to extract from the Service. Any
additional post-termination assistance from Badger Meter is subject to mutual
agreement by the parties.
(g) Reinstatement Fee. If Customer desires to reinstate access to the Portal and
Service after termination, a reinstatement fee of $7.50 per endpoint reinstated will
apply.
(16) SUSPENSION OF SERVICES.
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BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
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(a) Nonpayment. Badger Meter may suspend the Service and access to the Portal
and shall not be obligated to provide access to the Portal and Service to City or
Authorized Consumers until all outstanding undisputed invoices for the Service
have been paid in full, including any fees associated with suspension of the Service.
(b) Network Protection. Badger Meter may restrict or suspend all or a portion of
the Service or limit the Service as may be reasonably necessary to prevent or limit
suspected fraud or any problem if the City or its Authorized Consumer knowingly
creates a situation that materially and adversely affects the performance of the
Service and/or is likely to do substantial damage to Badger Meter. Such situations
may arise: (a) if a device is deployed on the Service that the City or an Authorized
Consumer knows is materially out of compliance with the technical requirements;
(b) if actual or suspected fraudulent occurs; or (c) the City or an Authorized
Consumer knows the use is disruptive or damaging to Badger Meter’s operations.
(c)
Notification. In the event that Badger Meter restricts, suspends or cancels any
portion of the Service or limits the operation of the Service, Badger Meter shall use
reasonable efforts to: (i) promptly notify City in advance; (ii) provide reasonable
information regarding its identification of the issue that resulted in the actions taken;
and (iii) reinstate Service upon resolution of the issue as soon as practicable and in
any case within a reasonable timeframe.
(d) Immediate Suspension. Badger Meter may suspend City’s or an Authorized
Consumers right to access or use the Service immediately upon notice to City if
Badger Meter determines:
(i)
Use of the Service poses a security risk to the Service, the Network or any
third party, adversely impacts the Service, the Network or data of any other
Badger Meter customer, or subjects Badger Meter or any third party to liability or
fraud.
(ii)
City or one of its Authorized Customers is in breach of this Agreement or
is delinquent on its payments for more than thirty (30) days.
(iii)
Badger Meter has an assignment for the benefit of creditors or similar
disposition of its assets in accordance with a court order or becomes the subject of
any stay under a bankruptcy, reorganization, liquidation dissolution or similar
legal proceeding.
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BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 14 of 34
(e) Reinstatement. Badger Meter will use all commercially available efforts to
restore City’s rights to use and access those portions of the Service or accounts that
gave rise to the suspension promptly after City has resolved the problem giving rise
to the suspension.
(f)
Effect of Suspension. If Badger Meter suspends City’s right to access or use all
or any portion of the Service or the Portal:
(i)
City remains responsible for all Service Fees and undisputed charges
incurred through the date of suspension.
(ii)
City remains responsible for any applicable Service Fees and charges for
any Services to which City has continued access as well as applicable fees and
charges.
(iii)
City will not be entitled to any service credits under the Service Level
Agreement for any period of suspension.
(iv)
Badger Meter’s right to suspend the Services is in addition to Badger
Meter’s right to terminate this Agreement for a material breach of this Agreement
as otherwise provided herein.
(17) COMPLIANCE WITH REGULATIONS
(a)
Data Privacy. Each party is responsible for complying with industry standards
and such applicable laws and regulations, including, but not limited to, the generally
accepted practices in the information technology service management industry for
providing secure data handling and management, including meeting or exceeding
Information Technology Infrastructure Library (ITIL) standards for logical and
physical security and all requirements regarding the protection of data in its
possession or under its control. A party will not be liable for any failure of the other
party to comply with this requirement.
(b) E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401,
Badger Meter warrants their compliance and that of its subcontractor with all federal
immigration laws and regulations that relate to their employees and compliance with
the E-verify requirements under A.R.S. § 23-214(A). Badger Meter or subcontractor’s
breach of this warranty shall be deemed a material breach of the Agreement and may
result in the termination of the Agreement by the City under the terms of this
Agreement. The City retains the legal right to randomly inspect the papers and
records of the other party to ensure that the other party is complying with the above-
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 15 of 34
mentioned warranty. Badger Meter and subcontractor warrant to keep their
respective papers and records open for random inspection during normal business
hours by the other party. The parties shall cooperate with the City’s random
inspections, including granting the inspecting party entry rights onto their respective
properties to perform the random inspections and waiving their respective rights to
keep such papers and records confidential.
(c)
No Boycott of Israel. To the extent A.R.S § 35-393 through § 35-393.03 are
applicable, the parties hereby certify that they are not currently engaged in, and agree
for the duration of the Agreement to not engage in, a boycott of goods or services
from Israel, as that term is defined in A.R.S § 35-393.
(d)
Uyghur Forced Labor Prevention Act (UFLPA). Badger Meter certifies that it
does not currently, and during the term of this Agreement, will not use:
(i)
the forced labor of ethnic Uyghurs in the People’s Republic of China;
(ii)
any goods or services produced by the forced labor of ethnic Uyghurs in
the People’s Republic of China; and
(iii)
any contractors, subcontractors or suppliers that use the forced labor or any
goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
(e)
Conflicts. Badger Meter acknowledges this Agreement is subject to A.R.S. § 38-
511, which allows for cancellation of this Agreement in the event any person who is
significantly involved in initiating, negotiating, securing, drafting, or creating the
Agreement on City's behalf is also an employee, agent, or consultant of any other
party to this Agreement.
(f)
Non-Discrimination. Contractor must not discriminate against any employee
or applicant for employment on the basis of race, color, religion, sex, national origin,
age, marital status, sexual orientation, gender identity or expression, genetic
characteristics,
familial
status,
U.S.
military
veteran
status
or
any
disability. Contractor will require any Sub-contractor to be bound to the same
requirements as stated within this section. Contractor, and on behalf of any
subcontractors, warrants compliance with this section.
(18) DATA SECURITY AND RECOVERY.
(a) Data Security. In order to protect the City Data and prevent unauthorized
access to or use of City Data, the Portal or Service, Badger Meter has implemented
commercially reasonable internal procedures and systems designed to protect the
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 16 of 34
privacy and security according to the requirements set forth in Exhibit 3 – BEACON
SaaS Managed Solution Security Policy (“Security Standards”), consistent with
applicable international, federal, state and local laws. The purpose of the security
policy is to identify reasonably foreseeable and internal risks to security and
unauthorized access to Badger Meter’s Network and minimize security risks,
including through risk assessment and regular testing. Badger Meter will designate
one or more employees to coordinate and be accountable for the security program.
(b) Protection of Customer Data. Badger Meter will implement reasonable and
commercially available data security measures consistent with industry standards
for the Badger Meter Network designed to help City secure its City Data against
accidental or unlawful loss, access or disclosure. Such measures may be undertaken
in accordance with Badger Meter’s Security Standards or any more stringent
industry standards. Badger Meter may modify its Security Standards from time to
time but will continue to provide at least the same level of security as described in
the Security Standards as of the Effective Date. The security and data privacy
provisions in this Agreement contain Badger Meter’s contractual obligation
regarding the security, privacy and confidentiality of City Data.
(c)
Data Storage. Badger Meter will employ industry standard, commercially
available storage (including backup, archive and redundant data storage) and
precautions to prevent the loss of or alteration of City Data, but does not guarantee
against any such loss or alteration. Badger Meter will not serve as City’s official
record keeper. City will maintain source documents of the Confidential Information
(such as billing information) hosted by Badger Meter under this Agreement.
(d) City Responsibilities. Badger Meter is responsible for properly configuring
and advising the City how to use the Service. Using the advise and Services
provided by Badger Meter, the City will take steps to maintain appropriate security,
protection and backup of its own City Data, including but not limited to the use of
encryption technology to protect City Data from unauthorized access and will
perform routine archiving of the City Data. City is responsible for regularly
auditing its Authorized Consumers, and will enact internal procedures to remove
and prevent employees, consultants and authorized representatives from using the
Service if their job duties change and access is no longer appropriate. The City is
responsible for ensuring that all security standards are met for its own environment.
(e) Data Transmission Risks.
(i)
Cellular Transmissions. Badger Meter cellular endpoints conform to the
AES256 encryption standards or the latest AES standard in effect. City
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 17 of 34
acknowledges that Badger Meter cannot guarantee the privacy or security of any
cellular transmissions as part of the Service. City acknowledges that cellular
transmissions are capable of being intercepted by third parties without the
knowledge or permission of Badger Meter. Badger Meter shall not be liable to City
or its Authorized Consumers or any third party for interception or unauthorized
use of any data transmitted through the cellular network, as part of the Service.
(ii)
Internet Transmissions. City acknowledges that security of transmissions
over the Internet cannot be guaranteed. Badger Meter is not responsible for: (i)
City’s access to the Internet; (ii) interception, unauthorized use or interruptions of
communications through the Internet; or (iii) changes or losses of data through the
Internet, in each case other than to the extent caused solely by Badger Meter. In
order to protect City Data, Badger Meter may suspend City’s or an Authorized
Consumer’s access to or use of the Badger Meter Portal or Service via the Internet
immediately, without prior notice, pending an investigation of any potential
security breach.
(f)
Password Protection. City and its Authorized Consumers will be required to
select and use certain user names, passwords or codes to access and use the Service
and Portal. City assumes sole responsibility for the selection, management and use
of any codes or passwords as may be permitted or required for the access to and use
of the Portal and Service by the City and its Authorized Consumers. City agrees to
maintain the privacy of usernames and passwords associated with the Badger Meter
Portal and Service. City shall remain responsible for all activities that occur under
City’s password or Internet account. City will immediately notify Badger Meter of
any unauthorized use of City’s password or Internet account or any other breach of
security, and ensure that City exits from City’s Internet account at the end of each
session. Badger Meter shall not be liable for any damages incurred by City or any
third party arising from City’s failure to comply with this Section.
(g) Third Party Access. To the extent that City requests that Badger Meter provide
any City Data to its Authorized Consumers or third parties or any non-U.S. location,
City represents that it has acquired any consents or provided any notices required
to transfer such content or information and that such transfer does not violate any
applicable international, federal, state or local laws and/or regulations.
(h) Security Breach. If Badger Meter becomes aware of a security breach or that
compromises the security, confidentiality or integrity of the City Data (“Breach”),
Badger Meter will promptly notify City in writing and take appropriate actions to
resolve the Breach. Badger Meter will fully cooperate with City to investigate the
nature and scope of any Breach. In its initial notification to City, Badger Meter will
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 18 of 34
provide City with: (i) a description of the Breach; (ii) the estimated impact of the
Breach on City’s Data; (iii) the name and contact information of the person at Badger
Meter who will be primarily responsible for resolving the issues for City; and (iv)
the investigation taken and the suggested corrective action. Badger Meter will also
fully cooperate with City in assisting with notification of the Breach and taking
corrective action as requested by City.
(i)
Notification of Breach. In the event that applicable law requires notification to
individuals of an Breach or if requested by City, Badger Meter will take additional
mitigation steps for the benefit of City, including, but not limited to, providing,
drafting and sending of required notifications.
(19) CHANGES.
(a) Right to Make Changes. Badger Meter may make any changes applicable to
all of Badger Meter’s customers and systems to the Terms of Use, the Privacy
policies, the Portal, Service or Documentation, without City’s approval, , provided
such changes: (i) do not increase City’s total costs of accessing and using the Portal
and Service during the Term of this Agreement ; (ii) do not require City to make
changes to its systems, software, equipment, policies or procedures ; (iii) do not have
a material adverse impact on the functionality, interoperability, performance,
reliability, security or resource efficiency of the Portal and Service ; (iv) do not
materially reduce the scope of the Portal and Service; and (v) are otherwise
consistent with this Agreement. Badger Meter may publicize any changes made
consistent with this provision, but must provide direct, written advanced notice to
the City representative identified herein. Any such changes will not take effect until
thirty (30) days after written notice is provided to the City. City’s written consent is
required before it can be bound by the modified policies. Any changes Badger Meter
makes contrary to the notice and consent requirements of this Section shall be null
and void and not binding on the City.
(b) Emergency Changes; System Improvement. Notwithstanding the foregoing,
Badger Meter may make temporary changes to the Portal and Service required by
an emergency or threat to the security or integrity of the Portal or Service, to respond
to Claims, litigation or loss of license rights related to third party intellectual
property rights or to comply with the law or requests of a government entity, as well
as take actions deemed reasonably necessary to protect or optimize the Service.
Some of these actions may interrupt or prevent legitimate communications and
usage, including, for example, use of message filtering/blocking software to prevent
SPAM or viruses, limitations on throughput, and scheduled maintenance. Badger
Meter will provide written notice directly to the City’s representative identified in
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 19 of 34
this Agreement, unless the City provides an alternative method of notice or
authorized representative. Badger Meter will provide City with: (i) at least thirty
(30) days’ advance notice of planned maintenance by Badger Meter; and (ii) as much
advance notice as reasonably possible of emergency changes or security threat
identified by Badger Meter. Any actions resulting in permanent changes shall only
be made in compliance with Section (19) (a).
(20) RIGHT TO SUBCONTRACT. Badger Meter may subcontract the performance of
any of its cellular or web-services duties or obligations under this Agreement as identified
in its Response to the City’s Request for Proposal 25-14 without obtaining advance
approval from the City. Should Badger Meter wish to substitute a with a different
subcontractor than originally proposed or propose to use a subcontractor for a different
task or activity, Badger Meter shall identify a subcontractor with the requisite skills to
perform any subcontracted obligations in accordance with the terms of this Agreement
and obtain the City’s written consent, which shall not be unreasonably withheld, before
such substitution becomes effective.
(21) GENERAL.
(a)
Binding Agreement. This Agreement is binding upon and will inure to the
benefit of the parties and their respective successors and assigns.
(b) Assignment. Neither party may assign its rights and obligations under this
Agreement without the express written consent of the other party, which consent
will not be unreasonably withheld or delayed. Any purported assignment or transfer
in violation of this Section will be null and void.
(c)
No Waiver. The waiver or failure of either party to exercise any right or remedy
provided under this Agreement will not be deemed a waiver of any further right or
remedy. All waivers must be in writing to be effective.
(d) Severability. If any portion of this Agreement is held to be invalid or
unenforceable, the remaining portions of this Agreement will remain in full force and
effect. Any invalid or unenforceable portions of this Agreement will be interpreted
to effectuate the intent of the original Agreement. If such construction is not possible,
the invalid or unenforceable portion of the Agreement will be severed from this
Agreement, and the remainder of the Agreement will remain in full force and effect.
(e)
Independent Contractors. The Parties agree that they are independent
contractors and that neither party nor any of their respective affiliates, is an agent of
the other for any purpose or has the authority to bind the other.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 20 of 34
(f)
Savings Clause. The invalidity of any provision of this Agreement shall not
affect the validity and binding effect of the remaining provisions.
(g)
No Third Party Beneficiaries. Nothing express or implied in this Agreement
shall confer any rights, remedies, obligations or liabilities whatsoever to third parties
which are not signatories to this Agreement.
(h)
Governing Law. The terms of this Agreement are governed by the laws of the
State of Arizona, without reference to its conflict of laws principles. The parties agree
that any judicial action brought to enforce the terms and conditions of this
Agreement shall be brought in a court of competent jurisdiction in Maricopa County,
Arizona.
(i)
Claims Against or Liability of Badger Meter Suppliers. City acknowledges
that the Service utilizes services that are furnished to Badger Meter from one or more
suppliers (including Amazon Web Services) pursuant to agreements between Badger
Meter and its suppliers. Neither City nor its Authorized Consumers has a contractual
relationship with Badger Meter’s suppliers. Should City institute litigation against
Amazon Web Services related to the Service provided under this Agreement, City
agrees: (i) to provide written notice of such claim within five (5) business days,
including providing a full copy of any filings, if requested; and (ii) to reimburse
Badger Meter for its actual out-of-pocket attorneys’ fees and travel expenses incurred
directly in connection with City’s claim against Amazon Web Services, if, and only
if, such litigation by City against Amazon Web Services is dismissed with prejudice
by a court of competent jurisdiction in a final and non-appealable order and such
court awards Amazon Web Services its attorneys’ fees and costs.
(j)
Dispute Resolution.
(i)
Initial Resolution Efforts. The parties shall act in good faith and use
commercially reasonable efforts to promptly resolve any claim, dispute,
controversy or disagreement (each a “Dispute”) between the parties or any of their
respective subsidiaries, affiliates, successors and assigns under or related to this
Agreement or any document executed pursuant to this Agreement or any of the
transactions contemplated hereby.
(ii)
Arbitration. If the parties cannot resolve the Dispute informally within
ten (10) days after initial notice of the Dispute, the Dispute shall be submitted for
resolution in accordance with the Rules of the American Arbitration Association
(AAA).
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 21 of 34
(iii)
The parties will each submit the names of 3 arbiters acceptable to them
from the AAA Panel to preside over the dispute. The parties will then either reach
agreement on the name of the person to hear the Arbitration or designate Bruce
Meyerson, a former Judge from the Arizona Court of Appeals, as the neutral third
party.
Each party will bear its own costs of the arbitration. The resulting
award may be confirmed and reduced to judgment in any court of
competent jurisdiction. With respect to any such post-arbitral judicial
proceedings, the parties consent to the exercise of personal jurisdiction over
them by the state and federal courts sitting in Maricopa County, Arizona
and waive any objection that they would otherwise have to venue in such
courts.
The duty to arbitrate does not preclude either party from pursuing
interlocutory or provisional relief pending arbitration in any court of
competent jurisdiction if such relief is necessary in order to preserve the
practical ability of the arbitrator to make an effective award or to avoid a
genuine and substantial risk of injury that cannot be adequately remedied
by an eventual arbitral award. Neither the pursuit of nor the failure to
provide any such interlocutory or provisional remedy in court, however,
shall relieve either party of the duty to pursue ultimate resolution of the
dispute through arbitration as provided for herein.
(22) INJUNCTIVE RELIEF: Notwithstanding the provisions of Section 21, to the extent
permitted by law, either party shall have the right to pursue injunctive, declaratory or
other relief by the state and federal courts sitting in Maricopa County, Arizona and waive
any objection that they would otherwise have to venue in such courts.
(23) NOTICES. All notices shall be in writing and delivered to the other party by means
of: (a) personal delivery set forth below; (b) courier (signature required upon delivery);
(c) recognized overnight courier, at the following address; (d) fax with proof of delivery;
or (e) via electronic mail with proof of delivery: Notices sent by email will be effective
when sent and notices posted on Badger Meter’s Portal will be effective upon posting.
All notices must be provided in the English language.
If to Badger Meter:
Legal Department, Attn: Assistant General Counsel
4545 W. Brown Deer Road
Milwaukee, WI 53223
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 22 of 34
If to City:
Ron Serio, Water Services Director
City of Glendale
7070 W Northern Avenue
Glendale, AZ 85303
With a Copy to:
Michael D. Bailey
City Attorney
6829 N. 58th Drive, Ste. 201
Glendale, AZ 85301
(24) SURVIVABILITY. Any provision of this Agreement which by its nature should
survive termination or expiration of this Agreement shall survive its expiration or
termination.
(25) LIMITATION OF CLAIMS. No action arising under or in connection with this
Agreement, regardless of the form, may be brought by Customer more than six (6) year
after Customer becomes aware of or should reasonably have become aware of the
occurrence of events giving rise to the Claim.
(26) FORCE MAJEURE. Neither party shall be liable to the other or any third party by
reason of any failure or delay of its obligations under this Agreement where the delay or
failure results from any cause beyond its reasonable control, including, but not limited
to, acts of God, fires, storms, floods or other acts of nature, explosions, systemic electrical
telecommunications or other utility failures, earthquakes, hurricanes, tornados, natural
disasters, strikes, work stoppage or other labor dispute, embargoes, riots, insurrections,
acts of war or terrorism, or any action or restraint by court order or public or
governmental authority (“Force Majeure Event”). The party subject to the Force Majeure
Event agrees to use commercially reasonable efforts to minimize the impact of the Force
Majeure Event on the other party.
Increased cost of a product or service due the
imposition of any tariff, tax or surcharge is not considered a “force majeure.”
(27) AMENDMENT. This Agreement may only be amended by a written document
signed by both parties.
(28) ENTIRE AGREEMENT.
This Agreement, including all applicable Exhibits and
policies, constitutes the entire agreement between the parties with regard to its subject
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 23 of 34
matter. This Agreement supersedes all prior or contemporaneous agreements,
discussions, negotiations, undertakings, communications, representations or proposals,
whether written or oral. In the event an Exhibit, attachment, policy or procedure conflicts
with the terms and conditions of this Agreement, the term or condition of this Agreement
shall control and be enforceable.
(29) ORIGINALS, COUNTERPARTS.
This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which together will be
deemed to constitute one and the same document. This Agreement may be executed and
delivered by facsimile signature or portable document format (.pdf) by electronic mail.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind the
parties to this BEACON SaaS Managed Solution Master Agreement by signing below:
BADGER METER, INC
CITY OF GLENDALE
Signature
Printed Name
Title
Date
Date
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 24 of 34
EXHIBIT 1
FEES
1.
Service Fees. City agrees to pay the following Service Fees, as consideration for the right
to access and use the Portal, Service and Documentation during the Term, as well as
applicable Taxes.
2.
Invoicing. Badger Meter shall issue invoices to City for Service and Support Fees on a
monthly basis. Undisputed payments are due within thirty (30) days of the date of the
invoice. Invoicing for monthly endpoint subscription fee starts at time of endpoint
activation or 6 months from date of shipment, whichever comes first.
3.
Interest and Costs. City agrees that it will be responsible to pay Badger Meter for any
collection expenses incurred by Badger Meter, including interest at the highest interest
rate permitted by law, and reasonable attorneys’ fees and court costs incurred by Badger
Meter in enforcing its rights under this Agreement.
BEACON Monthly Endpoint Subscription Fee per endpoint per month:
BEACON Service Units
Quantity
Unit Price
Ext Price
BEACON Managed Solution Service Unit Pricing - Year 1
EA
68886-104
129,472
$ 0.55
$ 71,209.60
BEACON Managed Solution Service Unit Pricing - Year 2
EA
68886-104
274,638
$ 0.55
$ 151,050.90
BEACON Managed Solution Service Unit Pricing - Year 3
EA
68886-104
794,688
$ 0.55
$ 437,078.40
BEACON Managed Solution Service Unit Pricing - Year 4
EA
68886-104
802,634
$ 0.56
$ 449,475.04
BEACON Managed Solution Service Unit Pricing - Year 5
EA
68886-104
810,661
$ 0.57
$ 462,076.77
BEACON Managed Solution Service Unit Pricing - Year 6
EA
68886-104
818,767
$ 0.58
$ 474,884.86
BEACON Managed Solution Service Unit Pricing - Year 7
EA
68886-104
826,955
$ 0.58
$ 479,633.90
BEACON Managed Solution Service Unit Pricing - Year 8
EA
68886-104
835,225
$ 0.59
$ 492,782.75
BEACON Managed Solution Service Unit Pricing - Year 9
EA
68886-104
843,577
$ 0.60
$ 506,146.20
BEACON Managed Solution Service Unit Pricing - Year 10
EA
68886-104
852,013
$ 0.61
$ 519,727.93
BEACON Managed Solution Service Unit Pricing - Year 11
EA
68886-104
860,533
$ 0.62
$ 533,530.46
BEACON Managed Solution Service Unit Pricing - Year 12
EA
68886-104
869,138
$ 0.63
$ 547,556.94
BEACON Managed Solution Service Unit Pricing - Year 13
EA
68886-104
877,829
$ 0.64
$ 561,810.56
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 25 of 34
BEACON Managed Solution Service Unit Pricing - Year 14
EA
68886-104
886,608
$ 0.65
$ 576,295.20
BEACON Managed Solution Service Unit Pricing - Year 15
EA
68886-104
895,474
$ 0.66
$ 591,012.84
BEACON Managed Solution Service Unit Pricing - Year 16
EA
68886-104
904,429
$ 0.67
$ 605,967.43
BEACON Managed Solution Service Unit Pricing - Year 17
EA
68886-104
913,473
$ 0.68
$ 621,161.64
BEACON Managed Solution Service Unit Pricing - Year 18
EA
68886-104
922,608
$ 0.69
$ 636,599.52
BEACON Managed Solution Service Unit Pricing - Year 19
EA
68886-104
931,834
$ 0.70
$ 652,283.80
BEACON Managed Solution Service Unit Pricing - Year 20
EA
68886-104
941,152
$ 0.71
$ 668,217.92
Total
$ 10,038,502.66
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 26 of 34
EXHIBIT 2
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) will go into effect upon completion of Endpoint
Provisioning, which is the point during meter installation when the endpoint is installed
and verified to provide data to the BEACON SaaS Managed Solution.
1.
CUSTOMER SUPPORT.
Service Levels. Within one (1) hour after a request for City Support Services from City,
Badger Meter will respond to such request in accordance with the procedures set forth
below. City may report the problem by phone, email or website provided by Badger
Meter to City. Badger Meter will use commercially reasonable efforts to meet the
response and resolution times set forth below:
Severity Level
Response Time
Resolution Time
Level 1 – Service is
unavailable
one (1) hour
six (6) hours
Level
2
–
certain
interruptions
but
service is still available
twenty-four (24) hours
twenty-four (24) hours
Level
3
–
minor
intermittent
malfunction
twenty-four (24) hours
three (3) days
Level 4 – suggestions
for new features or
enhancements
to
BEACON Portal and
Service
twenty-four (24) hours
Evaluated, scheduled and
prioritized
for
potential
inclusion
in
upcoming
releases.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 27 of 34
2.
BEACON PORTAL AND SERVICE AVAILABILITY STANDARD.
Badger Meter is obligated to provided the following Service Availability Standard:
BEACON Portal and Service Availability of 99% within each calendar month,
excluding any Emergency Downtime, Scheduled Downtime, any unavailability of the
Portal and Service due to any Force Majeure Event and any unavailability of the Portal
and Service less than fifteen (15) minutes in duration following written notice thereof.
Definitions
“Availability” is the monthly uptime percentage with normal functionality of the Portal
and the Service, calculated as described below.
“Emergency Downtime” means any unavailability of the Portal or Service due to a
temporary suspension by Badger Meter to perform maintenance to address any, urgent
and unexpected issue with the Portal or Service.
“Scheduled Downtime” means any unavailability of the Portal or Service due to
scheduled maintenance. Scheduled maintenance may occur between 10:00 p.m. on
Saturday to 4:00 a.m. on Sunday (Pacific Time) every week. Badger Meter shall have the
right to change the scheduled maintenance times upon notice to Customer posted on the
BEACON Portal.
CALCULATION of BEACON Portal and Service Availability:
Availability is measured by Badger Meter through standard monitoring software that
tests the application availability at least every five (5) minutes and logs unavailability
incidents (date and UTC time) for each monitored component.
Availability is calculated as the percentage of uptime in the applicable calendar month,
excluding scheduled downtime:
1
Where:
“Total Unavailability Minutes” is the cumulative unavailability time in minutes in the
applicable month where the Portal and Service are not available due to unplanned
outages or from systematic errors on the part of Badger Meter.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 28 of 34
“Total Minutes of Service Month” is the cumulative time in minutes in the month in
question, calculated by taking the number of days in month x 24 hours/day x 60
minutes/hour, and
“Total Minutes of Approved Downtime” is the cumulative time in minutes in the
applicable month where the Supplier applications are not available due to scheduled
downtime; other planned scheduled outages, or approved exclusion conditions as
defined in this Agreement.
In order to be included within the Total Unavailability Minutes: (a) City shall notify
Badger Meter, in writing, via email(techsupport@badgermeter.com) of the unavailability
of the Portal or the Service; (b) such unavailability shall be greater than fifteen (15)
minutes in duration following Badger Meter’s receipt of such notice; and (c) City shall
notify Badger Meter, in writing, via email within twenty-four (24) hours of such
unavailability that it should be included within the Total Unavailability Minutes unless
such unavailability is due to any Emergency Downtime, Scheduled Downtime, or any
unavailability of the Services due to any Force Majeure Event.
Service Credits
If Badger Meter fails to meet the BEACON Portal and Service Availability Standard, the
following Service Credits will be calculated as follows:
Service Credit = Endpoint Service Units Consumed in the Month * (1 - Availability)
rounded to the next whole number
Availability
Service Credit (Service Units per 1,000
Service Units consumed in the month)
95%
50
90%
100
80%
200
70%
300
60%
400
50%
500
Service Credit will be added to City’s account in the form of pre-paid Service Units for
the same endpoint type(s).
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 29 of 34
3.
MONTHLY BILLING DATA SERVICE STANDARD.
Badger Meter will use commercially reasonable efforts to provide Service according to
the following agreed upon standard:
The BEACON SaaS Managed Solution will successfully provide Monthly Billing Data
for at least 98.5% of provisioned accounts at the time of billing request to the BEACON
SaaS Managed Solution.
Definitions
“Managed Solution” is a system that consists of a network deployment using fixed
network and/or cellular endpoints, where Badger Meter maintains the responsibility for
managing the reading hardware and software for system operation over the Term of the
Agreement.
“Provisioned Accounts” are accounts with cellular or fixed network endpoints that are
discovered by the network, fully able to communicate with the network, and completely
entered correctly in the BEACON SaaS Managed Solution.
“Monthly Billing Data” is a valid meter reading obtained within three (3) days of the
billing as performed through the BEACON SaaS Managed Solution to provisioned
accounts.
CALCULATION of Monthly Billing Data Service Standard for Provisioned Accounts:
Monthly Billing Data success rate is calculated by the count of accounts in the billing cycle
with meter read data within three (3) days (“Count of Billing Reads”) divided by the
number of active and Provisioned Accounts in the billing cycle (“Count of Total Billing
Cycle”).
Cycle
Billing
Total
of
Count
Reads
Billing
of
Count
Where:
“Count of Billing Reads” is the total number of accounts in the billing file with valid data
that a billing quality reading is supplied for managed solution endpoints.
“Count of Total Billing Cycle” is the total number of accounts with valid data in the billing
file being processed for managed solution endpoints.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 30 of 34
If City suspects that the Monthly Billing Data Service Standard has not been met for a
particular Billing Cycle: (a) City shall notify Badger Meter, in writing, within twenty-
four (24) hours of the occurrence, via email (techsupport@badgermeter.com) of the Count
of Billing Reads and Count of Total Billing Cycle of managed solution endpoints; and (b)
the specific time and date when the billing read file was generated.
Service Credits
If Badger Meter fails to meet the Monthly Billing Data Service Standard, Service Credits
will be calculated as follows:
Service Credit = Managed Solution Endpoint Service Units Consumed in the Month * (1
- Monthly Billing Data Success Rate) rounded to the next whole number
Monthly Billing Data Success Rate
Service Credit (Service Units per 1,000
Service Units consumed in the month)
95%
50
90%
100
80%
200
70%
300
60%
400
50%
500
Service Credit will be added to City’s account in the form of pre-paid Service Units for
the same endpoint type(s).
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 31 of 34
4.
MISCELLANEOUS.
Exclusions
The BEACON Portal and Service Availability Standard and Monthly Billing Data Service
Standard do not apply to any of the following performance issues, in addition to other
exclusions herein:
(i)
Any actions or inactions of City or its Authorized Consumers in accordance with
the restrictions and requirements of this Agreement;
(ii)
Connectivity issues due solely to City or its suppliers’ equipment, software, or
other technology and/or City’s third party equipment, software, or other
technology entirely outside of Badger Meter’s control
(iii)
Failures, including, but not limited to, internet connectivity, port availability,
firewall configuration, or cellular networks at City’s location;
(iv)
City’s material breach of any term or condition under the Agreement;
(v)
Unexpected or unintentional RF interference or signal obstruction caused by
sources not present or not in use during endpoint installation;
(vi)
Intentional RF interference or signal obstruction not present during endpoint
installation, caused by third parties;
(vii)
City or an Authorized Consumer’s misuse or abuse of the Portal or Service;
(viii) During an event triggering a disaster recovery and for a twenty-four (24) hour
period after the resumption of the Service following such an event to allow for the
system to return to normal operating ranges;
(ix)
Arising from Badger Meter’s suspension or termination of City’s right to use the
BEACON Managed Solution in accordance with the Agreement;
(x)
Arising from failure of City to follow Badger Meter’s published installation,
operation and maintenance instructions and Clarifications from Badger Meter’s
Preliminary Network Design; and
(xi)
When outdoor temperatures either exceed or are below the endpoint operating
temperature range as described in the applicable product data sheet.
(xii)
Accounts read using manual, touch read, handheld and mobile technology are not
included as part of the Monthly Billing Data Service Standard, as these reading
technologies are outside of Badger Meter’s control.
In the event Badger Meter does not meet a Service Standard hereunder, Badger Meter
will conduct a commercially reasonable root cause analysis to determine the corrective
action necessary to achieve the Service Standard. If Badger Meter’s analysis: (i) is
inconclusive; (ii) determines an exclusion described herein applies; or (iii) concludes that
circumstances outside of Badger Meter’s control caused its non-compliance with the
Service Standard, the City will not be entitled to a Service Credit. If Badger Meter’s
analysis is conclusive and that circumstances within Badger Meter’s control caused the
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 32 of 34
non-compliance with the Service Standard, the City will receive a Service Credit as
described above. Nothing in this Section prevents or prohibits the City from disputing
any determination made by Badger Meter related to the reason for its non-compliance
with the Service Standard, from seeking Arbitration or from exercising any other remedy
available to the City under applicable Arizona law.
Badger Meter will provide quarterly reports documenting its compliance with the Service
Standards herein and its award of Service Credits due to the City.
Upon agreement concerning the Service Credits due, such Service Credits will be applied
against Badger Meter’s charges in the month immediately following the month in which
the Service Credits were determined to be owed to the City
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 33 of 34
EXHIBIT 3
BEACON SaaS MANAGED SOLUTION SECURITY POLICY
1.
BEACON SaaS Portal and Service Information Security Program.
Badger Meter
maintains an information security program (including the adoption and enforcement of
internal policies and procedures) designed to (a) support the BEACON SaaS Managed
Solution, (b) identify reasonably foreseeable and internal risks to the BEACON Portal and
Service security and unauthorized access to the Badger Meter Network, and (c) minimize
security risks. The BEACON Portal and Service information security program includes
the following measures:
1.1
Network Security.
The Badger Meter Network is electronically accessible to
employees, and contractors necessary to provide the Portal and Service. Badger
Meter maintains access controls and policies to manage what access is allowed to the
Badger Meter Network from each network connection and user, including the use of
firewalls or functionally equivalent technology and authentication controls. Badger
Meter maintains corrective action and incident response plans to respond to potential
security threats.
1.2 Physical Security.
1.2.1 Physical Access Controls. Physical components of the Badger Meter Network are
housed in nondescript facilities (the “Facilities”). Physical barrier controls are used
to prevent unauthorized entrance to the Facilities both at the perimeter and at
building access points. Passage through the physical barriers at the Facilities
requires either electronic access control validation (e.g., card access systems, etc.)
or validation by human security personnel (e.g., contract or in-house security guard
service, receptionist, etc.). Employees and contractors are assigned photo-ID
badges that must be worn while the employees and contractors are at any of the
Facilities. Visitors are required to sign in with designated personnel, must show
appropriate identification, and are assigned a visitor ID badge that must be worn
while the visitor is at any of the Facilities, and are continually escorted by
authorized employees or contractors while visiting the Facilities.
1.2.2 Limited Employee and Contractor Access. Badger Meter provides access to the
Facilities to those employees and contractors who have a legitimate business need
for such access privileges. When an employee or contractor no longer has a
business need for access privileges, the access privileges are promptly revoked,
even if the employee or contractor continues to be an employee of Badger Meter or
its affiliates.
BADGER METER
BEACON SAAS MANAGED SOLUTION
MASTER AGREEMENT
©2020 Badger Meter, Inc.
Page 34 of 34
1.2.3 Physical Security Protections. All major access points (other than main entry
doors) are maintained in a secured (locked) state. Access points to the Facilities are
monitored by video surveillance cameras designed to record all individuals
accessing the Facilities. All physical access to the Facilities by employees and
contractors is logged and routinely audited.
1.2.4 Pre-Employment Screening. Badger Meter conducts criminal background checks,
as permitted by applicable law, as part of pre-employment screening practices for
employees commensurate with the employee’s position and level of access to the
Facilities. Badger Meter will not permit an employee to have access to the non-
public Customer Data or perform material aspects of the Service if such employee
has failed to pass such background check.
2.
Continued Evaluation. Badger Meter will conduct periodic reviews of the security of its
Badger Meter Network and adequacy of its information security program as measured
against industry security standards and its policies and procedures. Badger Meter will
continually evaluate the security of its Badger Meter Network and associated Service to
determine whether additional or different security measures are required to respond to
new security risks or findings generated by the periodic reviews.
3.
Customer Responsibilities. System security is a shared responsibility between Badger
Meter and Customer. Customer shall assign a systems service administrator to be
responsible for establishing access and usage policies. Customer shall develop
commercially reasonable policies and procedures to insure physical security, establishing
account access approvals and procedures, conduct regular reviews of access rights, and
provide security awareness training for staff using the Service. The administrator shall
also be responsible for policies and procedures related to Authorized Consumers access
to their individual data resident on the Network.
24549447_7.DOCX 032016