FY2022-06 Megamation DirectLine Service Agreement Between KIB and MegaMation LLCMEGAMATION DIRECTLINETM SERVICE AGREEMENT
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
August 1, 2021
Kodiak Island Borough
710 Mill Bay Road
Kodiak AK 99615
MEGAMATION L.L.C. ("MegaMation") offers to provide Kodiak Island Borough ("Customer") with a service
based on the terms and conditions set out in this service agreement.
Binding Agreement
1.1. This service agreement and all attached documents represent the definitive MegaMation DirectLine Service
Agreement between MegaMation and the Customer ("Agreement"), in consideration of their mutual
covenants and agreements. This Agreement supersedes all prior statements, promises, understandings or
agreements. No modification or amendment to this Agreement shall be of any force or effect unless in writing
and signed or initialed by both parties.
1.2. This Agreement shall bind the parties and their respective successors and permitted assigns.
1.3. All headings used in this Agreement are for convenience only and are not to be considered a part of this
Agreement and do not, in any way, limit or amplify the terms and conditions of this Agreement.
2. Effective Date
2.1. This Agreement shall be effective from the Service Date as outlined by the Customer's written acceptance
(see below).
2.2. Unless otherwise stated in this Agreement, all obligations or entitlement under this Agreement shall be
effective from the Service Date as outlined below and shall continue in full force and effect for an initial term
of one (1) YEAR, and shall continue and remain in full force and effect under the same terms and conditions
for successive One (1) YEAR periods, unless and until terminated pursuant to the terms of this Agreement.
2.3. For clarity, pursuant to Section 12.1 below, this Agreement may be terminated by either party at any time on
Thirty (30) Days written notice to the other party.
3. Warranties
3.1. The Software is warranted to perform according to any written specification delivered by MegaMation to
the Customer during the continuance of this agreement.
3.2. The Customer warrants that it owns a licensed copy of Microsoft Office for use with any of MegaMation's
Modules.
4. Patents and Copyrights
4.1. The Customer agrees to include, and not to alter or remove, any applicable copyright, patent, trademark or
other proprietary notices on all copies in whatever form of the Software.
5. MegaMation DirectLine Services
5.1. During the continuance of the Agreement, certain services shall be provided by MegaMation to the Customer
and shall include the following services ("Web -Server Application Access Service"):
a) the computer-based transfer of electronic Confidential Information of the Customer ("Server Information")
directly to MegaMation's web -enabled application server ("Server"), provided that prior to effecting such
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
transfer the Customer and MegaMation agree to execute a written acknowledgment setting out, in sufficient
detail, the general nature of such Confidential Information;
b) the transfer and retrieval of Server Information by the Customer connecting to the Server, whereby
MegaMation will use its best efforts to ensure that the Server is maintained 24 hours a day, 7 days a week,
subject to scheduled outages/downtimes or restrictions and to outages/downtimes by reason of any cause
not reasonably within MegaMation's control which is not to exceed 4 hours cumulatively per month on an
annual basis;
c) telephone, internet and modem consultations by MegaMation with the Customer's authorized
representatives expressly for resolving problems with the transfer or retrieval of Server Information, which
consultations shall be provided between the hours of 3:00 AM to 9:00 PM (EST and EDT) Monday to
Friday, and between the hours of 6:00 AM to 6:00 PM (EST and EDT) Saturday & Sunday excluding
statutory holidays scheduled outages/downtime or restrictions for the Server and outages/downtimes by
reason of any cause not reasonably within MegaMation's control;
d) The Customers data will be backed up on a daily (or as otherwise mutually agreed upon between the parties)
and such data will be be stored in an offsite secured location for Disaster Recovery (DR) purposes;
e) The Customer will have their own database. This database will only be accessible by the Customer or
MegaMation as provided for within this Agreement. Access to the database is restricted using Windows
security (Active Directory and LDAP). All external access is initiated from a web browser and secured using
the SSL transmission protocol;
f) reasonable advance notice by MegaMation to the Customer of scheduled outages/downtimes or restrictions
for the Server; and prompt notice by MegaMation to the Customer if MegaMation is delayed or prevented
from performing any of its obligations herein, by reason of any cause not reasonably within MegaMation's
control. In such an event, MegaMation, upon written request by the Customer, will use its best efforts to
provide previously backed -up Server Information within 24 hours thereafter.
g) corrections of any program errors or discrepancies in the installed version of the Software, and the issuance
of updates shall include such corrections;
5.2. It is acknowledged and agreed that the DirectLine Services pursuant to Section 5. 1, above, shall not include: (a)
upgrades to the PC operating system; or (b) on-site installation of the Software or updates for the Software as
modified to the Customer's request. For clarity, MegaMation shall make an additional charge to the Customer,
on a time and expense basis, if requested by the Customer to perform such items.
5.3. The DirectLine Services pursuant to Section 5. 1, above, shall be performed by MegaMation provided that the
Customer is not in default under this Agreement and shall be performed by duly qualified individuals employed
or hired by MegaMation, in its sole discretion, in a professional manner.
6. Fee
6.1. For the DirectLine Services pursuant to Section 5 above, the Customer shall pay to MegaMation the fee(s)
set out in Schedule "A" which is attached to and forms an integral part of this Agreement.
7. Limited Liability
7.1. Unless otherwise stated in this Agreement, MegaMation's liability under this Agreement for damages,
regardless of the form of action, shall not exceed the total amount paid by the Customer herein during the
TWELVE (12) MONTHS immediately preceding the date when the cause of such damages arose, provided
that MegaMation shall not be held liable for any indirect, special, incidental or consequential damages
(including but not limited to lost profits) resulting from the Customer's use of the Software, even if
MegaMation has notice of the possibility of such damages. In the event MegaMation receives such notice
of the possibility of such damages, MegaMation undertakes that it will with best efforts provide the
Customer with such notice within Thirty (30) days.
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
7.2. In no event shall MegaMation be liable to the Customer for damages arising out of any claim (including but
not limited to a claim for personal injury or property damage) made against the Customer by any other
person or party unless the cause of such claim is due to patent or copyright infringement, misrepresentation,
negligence or willful misconduct of MegaMation.
7.3. The Customer shall indemnify and hold MegaMation, its officers, directors, employees, agents, legal
counsel and other representatives harmless, from and against any losses incurred or suffered by such persons
which are, directly or indirectly, or in any manner whatsoever, the result of, caused by or arise by reason of:
(a) any intentional, wrongful or negligent act or omission of the Customer or of its officers, directors,
employees, agents, legal counsel and other representatives in the performance of MegaMation or the
Customer's obligations under this Agreement ; (b) any misrepresentation by, or breach of any
acknowledgement of the Customer contained in this Agreement; and (c) any default by the Customer under,
or any breach or contravention by the Customer of, any agreement, covenant term or provision of this
Agreement.
8. Non -Disclosure & Confidentiality
8.1. For the purpose of this Section 8.1, "Recipient" means the party receiving Confidential Information and
"Discloser" means the party disclosing Confidential Information. Each Recipient acknowledges that all
material and information which has or will come into its possession or knowledge of each in connection
with this Agreement or the performance hereof, consists of confidential and proprietary data ("Confidential
Information"), the disclosure of which to or use by third parties may be damaging. The Recipient therefore
agrees to hold such material and information in strictest confidence, not to make use thereof other than for
the performance of this Agreement, to release it only to employees, agents, or contractors requiring such
information, and not to release or disclose it, and to use reasonable efforts to cause such employees, agents
and contracts not to release or disclose it to any other party.
The obligations of the Recipient with respect to any particular portion of Confidential Information shall
terminate or shall not attach, as the case may be, when any of the following occurs:
i. It was in the public domain at the time of the Discloser's communication thereof to the Recipient;
ii. It entered the public domain through no fault of the Recipient subsequent to the time of the Discloser's
communication thereof to the Recipient;
iii. It was in the Recipient's possession free of any obligation of confidence at the time of the Discloser's
communication thereof to the Recipient;
iv. It was independently developed by the Recipient;
v. Its disclosure is required by court or government order and the Discloser has been given prior written
notice of such order.
9. Default
9.1. Subject to Section 9.2., below, in the event that either party defaults on any of its material obligations
provided for hereunder and such default is not cured within THIRTY (30) DAYS of written notice, or the
defaulting party fails to take sufficient actions to the reasonable satisfaction of the other party to cure the
default within THIRTY (30) DAYS of written notice, this Agreement may be terminated by the other party.
9.2. Notwithstanding anything else to the contrary in this Agreement, in the event that MegaMation is
adjudicated a bankrupt or is in default pursuant to Section 9. 1, above, MegaMation hereby grants to the
Customer a perpetual, non-exclusive, non -transferable and non -assignable license and the Customer shall
be entitled to retain the Software and use the Software and the source codes of the Software for its own
internal purposes only, without additional costs to or obligations by either party.
9.3. For clarity, the Customer shall not access and use the source codes of the Software other than pursuant to
this section 9.2.
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
10. Notices
10.1. Any notice, request or demand to or upon the respective parties hereto shall be in writing and shall be
validly communicated by the delivery thereof to its addressee, either personally or by registered and
prepaid mail or by telex, telecopier, telegram or cable to the address hereinafter mentioned:
In the case of the Customer: Kodiak Island Borough
Attention: David Conrad, Director Engineering and Facilities
Phone: (907)-486-9340 E-mail: dconrad(&kodiakak.us
In the case of MegaMation L.L.C., 2810 Sweet Home Road, Amherst, New York, 14228Attention: Robert
Mutch, President
Phone: 716-636-4455 E-mail bmutch@megamation.com
11. Arbitration
11.1.In the event that any dispute occurs among the parties in respect of any matter from or provision of this
Agreement, which cannot be resolved by the provisions of this Agreement or by agreement of the parties
within SIXTY (60) DAYS, such matter or provision in dispute shall be resolved by arbitration.
11.2. A party may at any time require such arbitration, by giving written notice to the other party setting out in
reasonable detail the issue in dispute. The dispute, including the allocation of costs for the arbitration, shall
then be determined by a single arbitrator appointed by agreement between the parties or in default of such
agreement, by a Judge in the courts of the State of the New York and the United States District Court for the
Western District of New York upon application by any party. The arbitration shall proceed in the City of
Buffalo, New York under the rules then obtaining of the American Arbitration Association. There shall be
no appeal from any award of such arbitrator.
12. Termination
12.1. This Agreement may be terminated by either party on Thirty (30) Days written notice to the other party.
12.2. Subject to 9.2, above, upon termination of this Agreement, however caused, and within SIXTY (60) Days of
written notice and payment of all agreed upon outstanding invoices to MegaMation, MegaMation shall promptly
provide following the event of termination, a copy of the customer's data, as stored by MegaMation within its
database, on a computer disk or will FTP such data to a site identified by the Customer in the format of an Excel
spreadsheet. In addition, such customer's data shall be erased from all MegaMation's servers and backup.
13. Assignment of Rights
13.1. This Agreement is not assignable by either party, voluntarily or by operation of law, without the prior written
consent of the other party. Any attempt by a party to assign any of the rights, duties or obligations of this
Agreement without such consent, shall be void.
14. Applicable Law
14.1. This Agreement shall be construed and interpreted according to the laws of the State of New York and each
party attorns to the jurisdiction of such courts.
15. Waiver
15.1. The waiver, in writing, by any party of a breach or default of any of the provisions of this Agreement by the
other party, shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor
will any delay or omission on the part of a party to exercise or avail itself of any right, power or privilege that
it has or may have under this Agreement, operates as a waiver of any breach or default by the other party.
16. Invalidity & Severability
16.1. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction, to
be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
Agreement, and all provisions not so affected by such invalidity or unenforceability shall remain in full force
and effect.
17. Currency
17.1. All dollar amounts referred to in this Agreement are in United States funds.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed on their behalf by their duly
authorized representatives as of the Effective Date.
MEGAMATION L.L.C. KODIAK ISLAND BOROUGH
By: By: / I ' 7 V
Signature Signature
Name: Name: Michael Powers
Title: Title: _Borough Manager
I have the authority to bind the Corporation I have the authority to bind the Corporation
Date:
Date: August 1, 2021
("Service Date")
By:
Signature
Name: David Conrad
Title: _Engineering & Facilities Director
By.
Signa re
Name: Alise Rice
Title: _Borough Clerk, Attesting
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
SCHEDULE "A"
This Schedule "A" is attached to and forms an integral part of the MegaMation DirectLineTM
Service Agreement dated August 1, 2021 between MegaMation and the Customer
("Agreement"). Pursuant to Sections 1.1 and 6.1 of the Agreement, this Schedule "A" is not
intended to replace the Agreement, but shall amend and be in addition to it. Unless expressly
stated to the contrary, all defined terms herein (denoted with initial capital letters) shall have the
meanings assigned to them in the Agreement:
MegaMation DirectLine Application
1. Equipment Management & Specs
2. Work Order Management
3. Work Order Schedules
4. Preventive Maintenance
5. Safety/Standard Procedures
6. Inventory/Requisitioning
7. Bar code integration
8. Purchasing
9. Request for Quotation Module
10. Contract Management
Facility Modules
21. Space Planning & Scheduling Module
22. Lock & Key Inventory Module
23. Hazardous Materials Module
24. Asset Tracking / Utility Tracking
Services
11. Health & Safety Module
12. Employee Timecard
13. Document manager
14. Hand Held / Tablet Mobile Support
15. Calibration
16. Tool & Die Tracking
17. Readings
18. Project Management
19. Fleet Management Module
20. Reporting, Analysis and KPIs
25. Capital Planning Reserve Fund Module
26. Budgeting & Charge -backs
27. Help Desk
Q MegaMation Personal Account Manager 0 No limitation to number of named users
Q Unlimited Internet Training Q Unlimited Internet Support Services
Q Unlimited 1-800 phone-in support 0 Upgrades to enhanced versions of
software
Web -enabled and Web -server Application Access Including:
Q Use of server 0 Archiving and administration
Q Data storage Q Security and user administration
Q Database back-up (off-site) 0 Secured internet access
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MEGAMATION DIRECTLINETM SERVICE AGREEMENT
MEGAMATION DIRECTLINETM MONTHLY FEE
MegaMation DirectLine Service (80 hours/month) $350.00
➢ Includes 80 hours of system access per month
➢ Includes data upload using template spreadsheets
TOTAL MONTHLY FEE 350.00
Terms & Conditions
1. Payment terms: net 30 days from date of invoice, 2% services charge per month on
overdue accounts.
2. Billing commences on the Service Date listed below.
3. Monthly Service Fee is billed in advance.
4. All applicable taxes are extra.
5. System Modifications or Additional Consulting Services available @ $187.50 per hour.
Subject to the Customer's prior approval, out of pocket expenses are extra and will
include a 5% admin fee.
6. The monthly fees as specified on this schedule are for the initial term as defined in the
Agreement. MegaMation has the right to increase its monthly fees on any renewal at a
rate of 3% or The Bureau of Labor Statistics' most recently published annual Consumer
Price Index (CPI) at the time of the increase, which ever is higher. MegaMation also has
the right to increase the hourly Consulting and Customization rates on an annual basis.
7. The Customer warrants that it owns a licensed copy of Microsoft Office for use with any
of MegaMation's modules.
MEGAMATION DIRECTLINETM SERVICE AGREEMENT
BILLING INFORMATION
Customer: Kodiak Island Borough
ATT: Engineering & Facilities
710 Mill Bay Road
Kodiak AK 99615
Bill to Address: X❑ Same as Above
If you do email notifications please email
❑ OR
Patricia Valerio at pvalerio@kodiakak.us
Purchase Order: TBD
Vendor Information: MegaMation L.L.C.
2810 Sweet Home Road, Amherst NY 14228
FID # 16-1494025
Phone No. 716-636-4455
Fax No. 905-844-0347
Please Indicate the Preference for Billing:
❑ Prepay -12 months ❑ Prepay— 6 months ❑ Quarterly billing ❑X Monthly billing ❑
Credit Card
To pay for the following options by Credit Card, Please provide the following information:
❑ Visa ❑ Mastercard
Card
Name of Cardholder
3 Digit - Security Code
Expiry Date
(back of credit card)
Signature: Date: