HomeMy WebLinkAboutBrycer LLC agreement 2020AGREEMENT
PARTIES. This Agreement is between the City of Oshkosh, 215 Church Avenue,
Oshkosh, Wisconsin 54902, a Wisconsin Municipal Corporation (the "City"), and
Brycer, LLC, 4355 Weaver Parkway, Suite 330, Warrenville, Illinois 60555 ("Brycer").
2. TERM. This Agreement will be effective for three (3) years (the "Term"), beginning on
April 1, 2020. Subsequent terms or periods of service shall be the subject of a separate
agreement. The City shall have the right to terminate this Agreement at its discretion
upon giving ninety (90) days written notice to Brycer. At the expiration of any term,
upon any breach of this Agreement or other termination of this Agreement, the City
shall stop using the Brycer products. However, following expiration or termination,
Brycer shall make available, and the City shall have a right to download, the data from
The Compliance Engine for a period of sixty (60) days after the date of expiration or
termination.
3. PURPOSE. Brycer has developed web -based software platform which it has named
"The Compliance Engine" which allows, among other things, building owners or their
representatives to upload electronic inspection reports. The City's Fire Department will
then have access to those uploaded reports to review and ensure compliance with the
fire codes enforced by the City. The Compliance Engine will also generate
correspondence or communications sent to the property owner or their representatives
under the City's letterhead.
4. TASKS. The City and Brycer agree that the following is an accurate summary of the
parties tasks related to this Agreement and its Purpose:
a. Brycer Responsibilities:
i. Availability. Brycer shall make The Compliance Engine available as set
forth in Exhibit A.
ii. Service Level. Brycer shall provide commercially reasonable levels of
customer service with respect to The Compliance Engine to all third
parties who transact business with the City and access The Compliance
Engine.
iii. Backup. Brycer shall backup the database used in connection with The
Compliance Engine to a separate server located within the same web
hosting firm which The Compliance Engine is being hosted on a real time
basis. Upon request by the City (which can be no more than once per
month) or made prior to or within sixty (60) days after the effective date of
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termination or expiration of the Term, Brycer will make available to the
City a complete and secure (i.e., encrypted and appropriately
authenticated) download file of City 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 the City data.
Brycer shall not (a) modify City data or (b) disclose City data except as
required by law.
iv. Retention of information. Brycer will maintain all information entered
into the database by third party inspectors for at least five (5) years from
the time such information is entered into the database. Brycer shall notify
the City before deleting any information and allow the City no less than
sixty (60) days to obtain copies of such information before it is deleted.
v. Notices. Brycer will be responsible for generating and delivering the
following notices to third parties in connection with The Compliance
Engine: (a) reminders of upcoming inspections that are due; (b) notices
that an inspection are past due; and, (c) notices of completed inspection
reports which contain one or more deficiencies. All of these notices will at
the same time be made available to the City.
vi. Call Center. Phone calls will be made by Brycer on behalf of the City to
the property for each life -safety system overdue for service based on dates
automatically tracked within The Compliance Engine database. Brycer is
not an agent of the City and all scripts for overdue calls will be approved
by the City.
vii. Updates and enhancements. In the event Brycer releases any updates,
corrections, or enhancements to The Compliance Engine during the Term,
Brycer shall promptly provide such updates or corrections to the City free
of any charge or fee.
b. City responsibilities:
i. Oyeratingsystem. The City shall be solely responsible for providing a
proper operating environment, including computer hardware or other
equipment and software, for any portion of The Compliance Engine
installed on the City'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, the City must use Internet
Explorer version 11.0, or Edge, or Firefox version 37, or Chrome 40, or
Safari 7.1(or more recent versions), in addition to having a .pdf reader
installed on machines to view attachments.
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ii. Training. The City shall allow Brycer access to City's facilities to train all
applicable personnel for City on the use of The Compliance Engine.
iii. Information. The City shall promptly provide Brycer with all appropriate
information necessary for Brycer to create the database for The
Compliance Engine, including without limitation: (a) all commercial
buildings addresses within the City of Oshkosh for Brycer's initial upload;
and, (b) quarterly updates to the address list in a format acceptable to
Brycer.
iv. Enforcement. The City shall take all actions necessary to require (e.g.,
resolutions, ordinances, fire policy, code amendment) the use of The
Compliance Engine by third parties and/or their inspection companies.
v. Reports. The City will require that all compliant and deficient test results
be submitted by property owners and/or their inspection companies.
5. COST. There will be no cost to the City for the use of The Compliance Engine. The cost
of such use will be paid by the property owner or their representative as part of the
uploading process.
6. LUMATIONS. The City understands and accepts the following limitations of its use of
The Compliance Engine or other software provided by Brycer:
a. No Sale or Transfer. No portion of The Compliance Engine may be transferred,
sold, encumbered or copied to or for any other person or party.
b. Use. The City shall only install or access The Compliance Engine or other
software from Brycer on the City's network and it shall only be used by those
authorized by Brycer. The use of The Compliance Engine or other software by
persons not identified by the City and acknowledged by Brycer is prohibited.
c. System Alteration. The Compliance Engine or other software from Brycer may
not be altered or modified in any way by the City and the City shall not create
derivative works of The Compliance Engine. The City shall not reverse engineer,
translate, disassemble, decompile or otherwise attempt or allow another on the
City's behalf to attempt to create source code derived from the Compliance
Engine.
d. Rental or Use by Others. The City may not rent, lease, or lend The Compliance
Engine or other software provided by Brycer without prior permission from
Brycer.
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LIMITED WARRANTY. Brycer warrants that The Compliance Engine and other
software provided by Brycer will perform substantially in accordance with the written
materials it has provided the City. Brycer also warrants that any technical or support
services it provides will be substantially as described in Brycer's Response to the City's
Request for Proposals.
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 THE CITY OR THIRD PARTY INSPECTORS. EXCEPT AS
SET FORTH IN SECTIONS 7 OR 8, BRYCER MAKES NO OTHER WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPLIANCE ENGINE OR
ANY OTHER INFORMATION AND EXCEPT AS SPECIFIED IN SECTION 7 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 SECTIONS 7 AND 8, AND
CLIENT'S SOLE REMEDY, SHALL BE THAT BRYCER SHALL INDEMNIFY AND
HOLD RECIPIENT HARMLESS CITY FROM AND AGAINST ANY LOSS, SUIT,
DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE
REPRESENTATION AND WARRANTY.
9. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, in
no event shall Brycer be liable for any special, incidental, indirect, or consequential
damages whatsoever (including without limitation, damages for interruption of service,
loss of information, or any other pecuniary loss) arising out of the use of or inability to
use The Compliance Engine or other software provided by Brycer, or related to the
provision of or failure to provide support services.
10. PUBLIC RECORDS / SOFTWARE LICENSE PROTECTION. The City is a governmental
entity and as such it is obligated to comply with Wisconsin public records laws.
Nothing in this Agreement shall be interpreted to prevent the City's ability to comply
with Wisconsin public records laws. Brycer shall cooperate with the City to provide
information requested by those using The Compliance Engine for reporting or through
public records laws. The City and Brycer recognize that data provided by users of The
Compliance Engine as well as letters and reports generated by The Compliance Engine
are public records and the City shall not be required to notify Brycer of a records
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request related only to data provided by users and/or letters or reports generated by
The Compliance Engine. The City shall not disclose any information related to The
Compliance Engine other than as required by public records laws or as necessary to
accomplish the Purpose set forth above.
Brycer's "The Compliance Engine" or other software provided to the City for these
purposes are protected by copyright laws as well as other intellectual property laws. In
addition, Brycer claims certain other information may be protected from disclosure.
The City shall notify Brycer of any public records request related to The Compliance
Engine itself, other software or information provided by Brycer other than the data
provided by users and letters and/or reports generated by The Compliance Engine; and
whether the City believes that it is required to release such records. Brycer may take
any action it deems appropriate to prevent such disclosures.
11. TITLE TO THE COMPLIANCE ENGINE. All right, title and interest in and to The
Compliance Engine, the features of The Compliance Engine and images of The
Compliance Engine as well any and all derivative works or modifications thereof and
any accompanying documentation, manuals or other materials used or supplied under
this Agreement or with respect to The Compliance Engine or derivative works (the
"Documentation"), and any reproductions works made thereof, remain with Brycer.
The City acknowledges and agrees that, except for the limited use rights established
hereunder, the City has no right, title or interest in The Compliance Engine or the
Documentation.
12. RISKS INHERENT TO INTERNET. The City 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. The City also acknowledges that there are inherent
risks associated with using The Compliance Engine, 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. The City assumes these risks
knowingly and voluntarily releases Brycer from all liability from all such risks. Not in
limitation of the foregoing, The City hereby assumes the risk, and Brycer shall have no
responsibility or liability of any kind hereunder, for: (1) errors in The Compliance
Engine resulting from misuse, negligence, revision, modification, or improper use of all
or any part of The Compliance Engine by any entity other than Brycer or its authorized
representatives; (2) any version of The Compliance Engine other than the then -current
unmodified version provided to the City; (3) the City's failure to timely or correctly
install any updates to the City access software; (4) problems caused by connecting or
failure to connect to the Internet; (5) failure to provide and maintain the technical and
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connectivity configurations for the use and operation of The Compliance Engine 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 the City's exclusive
control.
13. ENTIRE AGREEMENT. This Agreement reflects the entire understanding and
agreements of the parties. There shall be no other terms and conditions unless explicitly
agreed to by both parties in writing and accompanied by authorized signatures.
Signatures on following page
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BRYCER,LLC
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(print name) (print title)
CITY OF OSHKOSH, WISCONSIN
By: ,�. /cG�
MAA. Rohloff, City Manager
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