4.6 SR 12-02-2024The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community
engagement that encourages and inspires prosperity
Request for Action
To
City Council
Item Number
4.6
Meeting Date
December 2, 2024
Prepared By
Mark Dickinson, Fire Chief
Item Description
Fire contract with Life Safety Inspection Vault (LIV)
Reviewed by
Mark Dickinson
Cal Portner
Tina Allard
Action Requested
Approve, by motion, the contract with Life Safety Inspection Vault for providing services to the fire
department.
Background/Discussion
Life Safety Inspection Vault (LIV) is a solution for local fire departments, service companies, building owners,
and the community. LIV has developed an online web application that collects, organizes, and stores fire and
life safety reports on inspection, testing, and maintenance.
The services provided will benefit both our fire inspection programs and businesses. Currently, we do not
always receive inspection reports from 3rd party inspection companies in a timely manner and do not have a
web-based program to organize all of our inspection documentation. This platform will provide both services
and an opportunity to help business compliance. The contract has been reviewed by our city attorney.
Financial Impact
None
Mission/Policy/Goal
Elk River Mission Statement "work with citizens to develop a sustainable and prosperous community for all to
live, work and play"
Attachments
1. Elk River MN (MSA) 121
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MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”),dated December 1st,2024
(“Effective Date”),is between Life Safety Inspection Vault LLC,an Idaho limited liability company
(“LIV”),and Elk River Fire Department,a municipal corporation of the State of Minnesota,with
a principal place of business at 13073 Orono Pkwy NW,Elk River,MN 55330 (“Client”).The term
“Agreement”means,collectively,this Agreement,the applicable Registration Form(s),the
applicable SOW(s),and any operating rules,policies,and procedures that LIV may publish from
time to time.LIV and Client agree as follows:
SECTION 1.ENGAGEMENT;SERVICES;DUTIES
1.1 Engagement.Subject to the terms and conditions of this Agreement,Client engages
LIV to provide Client with web-based management of the Client ’s fire safety system permitting
(collectively,the “Services”).LIV will provide the Services through LIV ’s proprietary web-based
application that will allow the Client to track and drive code compliance,reduce false alarm
activity,and provide a safer community (the “Vault”).The Vault provides a secure cloud
environment in which third party contractors that inspect,test,and maintain fire protections
systems can submit their reports via LIV’s web application directly to the Client,facilitating a
more efficient review,tracking,and follow-up process with occupants to correct deficiencies and
maintain systems.As part of the Services,LIV provides a proactive service,in addition to the
Vault,that includes hard and soft copy notifications sent to building owners and follow up phone
calls to help increase testing and maintenance activity within the jurisdiction.Client will specify
the Services it wishes LIV to provide by executing a Statement of Work (“SOW”)substantially in
the form attached as Exhibit A to this Agreement.If LIV agrees to provide those Services,LIV will
countersign that SOW and will provide the indicated Services to Client under the terms and
conditions of this Agreement.The term “Services”includes those items described above as well
as any other items described on each SOW.
1.2 Designation of Key Personnel.LIV’s “Representative”is Cole Harding,phone:
855-225-4822,e-mail:Cole.harding@livsafe.com.The Client ’s “Representative”is Mark
Dickinson,phone:(763)350-1105,e-mail:mdickinson@elkrivermn.gov.Client and LIV will each
use best efforts to keep the same key personnel assigned to this engagement throughout the
Term.If it becomes necessary for LIV to replace any key personnel,the replacement will be an
individual having equivalent experience and competence in executing projects such as the one
described in this Agreement.
1.3 LIV’s Responsibilities.LIV shall fully and timely provide all deliverables described in
this Agreement and in each SOW in material compliance with the terms,covenants,and
conditions of the Agreement and all applicable Federal,State,and local laws,rules,and
regulations (collectively,“Laws”).LIV will provide all technical and professional expertise,
knowledge,management,and other resources required for accomplishing all aspects of the
tasks and associated activities identified in each accepted SOW.If the need arises for LIV to
perform services beyond those stated in a particular SOW,LIV and the Client shall negotiate
mutually agreeable terms and compensation for completing the additional services.LIV shall
coordinate
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an annual business review meeting with representatives designated by each party either via
teleconference or in person within 60 days before each anniversary of the Effective Date.Client
may request that these meetings occur more frequently.
1.4 Client’s Responsibilities.Client’s Representative will be responsible for exercising
general oversight of LIV’s activities in completing each SOW.Specifically,the Client ’s
Representative will represent the Client ’s interests in resolving day-to-day issues that may arise
during the term of this Agreement,shall participate regularly in conference calls or meetings for
status reporting,shall promptly review any written reports submitted by LIV,and shall approve
all invoices for payment,as appropriate.The Client ’s Representative shall give LIV timely
feedback on the acceptability of progress and task reports.
SECTION 2.COMPENSATION
2.1 Management Fee.
2.1.1 Unless a certain report type is noted as an exception on applicable SOW
(each,an “Exception”),LIV will collect and retain from each user submitting an inspection report
a fixed fee of $15.00 US for each system inspection submitted (the “Fixed Fee”).The Fixed Fee
will be due and payable by the end user upon uploading an inspection report.The Fixed Fee for
any Exceptions will not exceed $15 per report.The parties will meet and review the Fixed Fee on
or about each anniversary of the Effective Date.For clarity,the Fixed Fee is paid by the end user
(e.g.,the inspector)and the Client is not billed for any fees.
2.1.2 As part of the Services,LIV will collect all fees including the Fixed Fee,due
and payable by third party inspectors in connection with activities relating to Vault and the
Services,plus any additional fees that Client charges in connection with the activities relating to
the premises in question (the “Inspection Fees”).The Inspection Fees will be determined solely
by Client.If Client elects under the applicable SOW,it may add an administration fee to the
Inspection Fees charged to the Client ’s customers.If so,LIV will collect that administration fee in
addition to the Inspection Fees.
2.1.3 If Client elects to include any Inspection Fees,then within 30 days following
the end of each calendar quarter,LIV will remit to Client the amount by which the amount of
Inspection Fees collected during such quarter exceeds the amount of Fixed Fees due and
payable to LIV under this Agreement for such quarter.
SECTION 3.TERM AND TERMINATION
3.1 Term of Agreement.The term of this Agreement will be for an initial period
commencing on the Effective Date and running through the date that is Three year from the
Effective Date (“Initial Term”).Thereafter,the Term will automatically be renewed for 2
additional one-year terms (each,a “Renewal Term,”and collectively with the Initial Term,the
“Term”)if,no later than 60 days before the expiration of the initial Term or any successive
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Renewal Term,Client notifies LIV of its intent to renew the Term.
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3.2 Termination.In addition to any other express termination right set forth in this
Agreement:
3.2.1 Either party may terminate this Agreement,without cause,effective on 90
days written notice to the other party;
3.2.2 Either party may terminate this Agreement,effective on written notice to
the other party,if the other Party materially breaches this Agreement,and such breach:(a)is
incapable of cure;or (b)is capable of cure and remains uncured 30 days after the non-
breaching party provides the breaching party with written notice of such breach;or
3.2.3 Either party may terminate this Agreement,effective immediately upon
written notice to the other party,if the other party:(a)becomes insolvent or is generally unable
to pay,or fails to pay,its debts as they become due;(b)files or has filed against it,a petition for
voluntary or involuntary bankruptcy or otherwise becomes subject,voluntarily or involuntarily,
to any proceeding under any domestic or foreign bankruptcy or insolvency law;(c)makes or
seeks to make a general assignment for the benefit of its creditors;or (d)applies for or has
appointed a receiver,trustee,custodian,or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its property or business.
3.3 Effect of Expiration or Termination.Upon expiration or earlier termination of this
Agreement,Client shall immediately discontinue use of the LIV IP and,without limiting Client ’s
obligations under Section 8,Client shall delete,destroy,or return all copies of the LIV IP and
certify in writing to the LIV that the LIV IP has been deleted or destroyed.No termination shall
affect LIV’s responsibility to remit any and all fees collected pursuant to Section 2 of this
Agreement.
3.4 Survival.This Section 3.4 and Section 2,Section 3.3,Section 4.2,Section 7,Section 8,
Section 11,Section 12,and Section 14 survive any termination or expiration of this Agreement.
No other provisions of this Agreement survive the expiration or earlier termination of this
Agreement.
SECTION 4.WARRANTIES;LIMITATIONS
4.1 Warranty.
4.1.1 Vault and Services Warranties.LIV represents and warrants to Client that all
Services to be provided to the Client under the Agreement will be fully and timely performed in
accordance with the terms,conditions,and covenants of the Agreement,and all Laws,and that
Vault will perform,in all material respects,in accordance with the specifications.While LIV does
not warrant the accuracy of the information that is put into Vault by third party inspectors,LIV
will take all prudent and necessary steps to ensure its proper and accurate retention,
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transmission,and provision to Client.Notwithstanding termination of this Agreement for any
reason,at all times,the Client will have the ability to access and download all Client Data and
related records.LIV further represents and warrants to the Client that LIV has all rights necessary
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in and to any patent,copyright,trademark,service mark or other intellectual property right
used in,or associated with,the Vault and the Services,and that LIV is duly authorized to enter
into this Agreement and provide the Vault and the Services to the Client under this Agreement.
4.1.2 Non-Suspension or Debarment.LIV certifies that it and its principals are not
currently suspended or debarred from doing business with the Federal Government,as
indicated by the General Services Administration List of Parties Excluded from Federal
Procurement and Non-Procurement Programs,or any other state or local government.
4.2 Limitations;Disclaimer of Warranties.All information entered into Vault is produced
by third party inspectors and their agents.THEREFORE,LIV SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY
INFORMATION ENTERED INTO VAULT BY EITHER CLIENT OR THIRD PARTY INSPECTORS.EXCEPT
AS SET FORTH IN THIS SECTION 4,VAULT AND THE SERVICES ARE PROVIDED “AS IS”AND “WITH
ALL FAULTS”AND “AS AVAILABLE”AND LIV DOES NOT WARRANT THAT VAULT OR THE SERVICES
WILL BE UNINTERRUPTED,TIMELY,SECURE,OR ERROR FREE.LIV MAKES NO REPRESENTATIONS
OR WARRANTIES THAT VAULT OR THE SERVICES WILL PROVIDE ANY PARTICULAR RESULTS.
EXCEPT AS SET FORTH IN THIS SECTION 4,LIV DISCLAIMS ALL OTHER WARRANTIES,WHETHER
EXPRESS OR IMPLIED,INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS
FOR A PARTICULAR PURPOSE,TITLE,AND NONINFRINGEMENT.THIS DISCLAIMER OF WARRANTY
EXTENDS TO CLIENT,CLIENT’S CUSTOMERS,AND ALL OTHER USERS,AND NO DESCRIPTIONS OR
SPECIFICATIONS,WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT OR ANY SCHEDULE,
EXHIBIT,ANNEX,OR DOCUMENTATION WILL CONSTITUTE WARRANTIES OF ANY KIND.LIV’S SOLE
LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 4,AND CLIENT ’S SOLE
REMEDY,IS THAT LIV WILL,SUBJECT TO SECTION 11 AND SECTION 12,INDEMNIFY AND HOLD
CLIENT HARMLESS FROM AND AGAINST ANY LOSS,SUIT,DAMAGE,CLAIM,OR DEFENSE ARISING
OUT OF BREACH OF THE REPRESENTATION AND WARRANTY.
SECTION 5.PROPRIETARY RIGHTS
5.1 Proprietary Rights.LIV retains all right,title and interest in and to Vault,the Services,
any derivative works or modifications thereof (the “Derivative Works”),any accompanying
documentation,manuals or other materials used or supplied under this Agreement or with
respect to Vault,the Services,or any Derivative Works (the “Documentation”),any
reproductions works made thereof,and any other LIV IP (as that term is defined in Section 6.1).
Client shall not remove any product identification or notices of such proprietary rights from
Vault or the Services.Except for the limited use rights established under this Agreement,Client
has no right,title,or interest in or to Vault,the Services,any Derivative Works,the
Documentation,or any other LIV IP.
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5.2 Use of Trademarks.During the Term,LIV may use the Client ’s trademarks and logos
for the purpose of providing Vault and the Services to Client,and Client hereby grants LIV the
right to use Client ’s trademarks and logos for said purposes.LIV may not,without Client’s prior
written consent,use Client ’s trademarks or logos for any other purpose,including
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promotional services or commercial services not directly related to the provision of Services
under this Agreement.
SECTION 6.SOFTWARE AS A SERVICE TERMS AND CONDITIONS
6.1 Definitions.
6.1.1 “Aggregated Statistics”means data and information related to Client’s use
of Vault that is used by LIV in an aggregate and anonymized manner,including compiling
statistical and performance information related to the provision and operation of Vault.
6.1.2 “Authorized User”means Client ’s employees,consultants,contractors,and
agents as indicated on the Registration Form (i)who are authorized by Client to access and use
Vault under the rights granted to Client by this Agreement and (ii)for whom access to Vault has
been purchased under this Agreement.Third party inspectors shall not be considered
employess,agents,consultants or contractors of Client unless specifically designated in writing
by the City.
6.1.3 “Client Data”means,other than Aggregated Statistics,information,data,
and other content,in any form or medium,that is submitted,posted,or otherwise transmitted
by or on behalf of Client,a third party inspector,or an Authorized User through Vault.
6.1.4 “LIV IP”means Vault,the Documentation,and any intellectual property
provided to Client or any Authorized User in connection with the foregoing.LIV IP includes
Aggregated Statistics and any information,data,or other content derived from LIV’s monitoring
of Client’s access to or use of Vault,but does not include Client Data.
6.1.5 “Registration Form”means the order form filled out and submitted by or
on behalf of Client,and accepted by LIV,for Client ’s access to Vault under this Agreement.
6.2 Access and Use.
6.2.1 Registration.In order to use Vault,Client must:(a)provide certain current,
complete,and accurate information about Client as prompted to do so by the Registration Form
order to enroll as a Vault user,as applicable;and (b)maintain and update such registration
information (“Registration Data”)as required to keep such information current,complete,and
accurate.If any Registration Data that Client provides is untrue,inaccurate,not current or
incomplete,LIV may terminate Client ’s account and Client ’s rights to use Vault.
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6.2.2 Provision of Access.Subject to and conditioned on Client ’s compliance with
the terms and conditions of this Agreement,LIV hereby grants Client a non-exclusive,non
transferable right to access and use Vault during the Term,solely for use by Authorized Users in
accordance with the terms and conditions of this Agreement.Such use is limited to Client ’s
internal use.LIV shall provide to Client the necessary passwords and network links or
connections to allow Client to access Vault.
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6.2.3 Fees.There are no fees for access to and the use of the Vault.
6.2.4 Documentation License.Subject to the terms and conditions contained in
this Agreement,LIV hereby grants to Client a non-exclusive,non-sublicensable,non-transferable
license to use the Documentation during the Term solely for Client ’s internal business purposes
in connection with its use of Vault.
6.2.5 Use Restrictions.Client shall use Vault only for the benefit of Client,shall
use commercially reasonable efforts to prevent the unauthorized use or disclosure of Vault,and
shall not use Vault for any purposes beyond the scope of the access granted in this Agreement.
Client shall not at any time,directly or indirectly,and shall not permit any Authorized Users to:
(i)copy,modify,or create derivative works of Vault or any Documentation,in whole or in part;
(ii)rent,lease,lend,sell,license,sublicense,assign,distribute,publish,transfer,or otherwise
make available Vault or the Documentation;(iii)reverse engineer,disassemble,decompile,
decode,adapt,or otherwise attempt to derive or gain access to any software component of
Vault,in whole or in part;(iv)remove any proprietary notices from Vault or the Documentation;
(v)use Vault or the Documentation in any manner or for any purpose that infringes,
misappropriates,or otherwise violates any person’s intellectual property or other rights,or that
violates any Law;(vi)interfere with or disrupt the integrity or performance of Vault or the
Services or any third-party data contained therein.Client shall not be liable and have no
obligations as to third party contractors that inspect,test and maintain fire protections systems
use of the Vault.
6.2.6 Reservation of Rights.LIV reserves all rights not expressly granted to Client
in this Agreement.Except for the limited rights and licenses expressly granted under this
Agreement,nothing in this Agreement grants,by implication,waiver,estoppel,or otherwise,to
Client or any third party any intellectual property rights or other right,title,or interest in or to
the LIV IP.
6.2.7 Data Storage.LIV shall not place any limit on the amount of memory or
other computer storage that Client may utilize through Vault.
6.2.8 Suspension.Notwithstanding anything to the contrary in this Agreement,
LIV may temporarily suspend Client’s and any Authorized User ’s access to any portion or all of
Vault if:
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(a)LIV reasonably determines that (i)there is a threat or attack on any of
the LIV IP;(ii)Client ’s or any Authorized User ’s use of the LIV IP disrupts or poses a security risk
to the LIV IP or to any other customer or vendor of LIV;(iii)Client,or any Authorized User,is
using the LIV IP for fraudulent or illegal activities;(iv)subject to Law,Client has ceased to
continue its business in the ordinary course,made an assignment for the benefit of creditors or
similar disposition of its assets,or become the subject of any bankruptcy,reorganization,
liquidation,dissolution,or similar proceeding;or (v)LIV’s provision of Vault to Client or any
Authorized User is prohibited by Law;or
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(b)Any vendor of LIV has suspended or terminated LIV’s access to or use
of any third-party services or products required to enable Client to access Vault;(any such
suspension described in subsections 6.2.8(a)and 6.2.8(b),a “Service Suspension”).
LIV will use commercially reasonable efforts to provide written notice of any Service Suspension
to Client and to provide updates regarding resumption of access to Vault following any Service
Suspension.LIV will use commercially reasonable efforts to resume providing access to Vault as
soon as reasonably possible after the event giving rise to the Service Suspension is cured.LIV will
have no liability for any damages,liabilities,losses (including any loss of data or profits),or any
other consequences that Client or any Authorized User may incur as a result of a Service
Suspension.
6.2.9 Aggregated Statistics.Notwithstanding anything to the contrary in this
Agreement,LIV may monitor Client ’s use of Vault and collect and compile Aggregated Statistics.
As between LIV and Client,all right,title,and interest in Aggregated Statistics,and all intellectual
property rights therein,belong to and are retained solely by LIV.Client acknowledges that LIV
may compile Aggregated Statistics based on Client Data input into Vault.LIV may (i)make
Aggregated Statistics publicly available in compliance with applicable Law,and (ii)use
Aggregated Statistics to the extent and in the manner permitted by Law;provided that such
Aggregated Statistics do not identify Client or Client ’s Confidential Information.
6.2.10 LIV Responsibilities and Uptime.LIV is responsible for the acquisition and
operation of all hardware,software,and network support related to Vault (other than those
required for Client to connect to the internet and access Vault).The technical and professional
activities required for establishing,managing,and maintaining the Vault environment are LIV ’s
responsibilities.LIV will take all reasonable and necessary steps to make Vault,but does not
guarantee that Vault will be,available 24-7/365 (subject to maintenance downtime).
6.3 Equitable Relief.Any breach or threatened breach by Client of any of its obligations
under Section 6.2.5 would cause LIV irreparable harm for which monetary damages would not
be an adequate remedy.As such,in the event of a breach or threatened breach of Client’s
obligations under Section 6.2.5,LIV will be entitled to equitable relief,including a restraining
order,an injunction,specific performance,and any other relief that may be available from any
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court,without any requirement to post a bond or other security,or to prove actual damages or
that monetary damages are not an adequate remedy.Such remedies are in addition to all other
remedies that may be available at law,in equity or otherwise.
6.4 Client Responsibilities.Client is responsible and liable for all uses of Vault and any
Documentation resulting from access directly provided by Client.Without limiting the generality
of the foregoing,Client is responsible for all acts and omissions of Authorized Users,and any act
or omission by an Authorized User that would constitute a breach of this Agreement if taken by
Client will be deemed a breach of this Agreement by Client.Client shall use reasonable efforts to
make all Authorized Users aware of this Agreement ’s provisions as applicable to such Authorized
User ’s use of Vault,and shall cause Authorized Users to comply with such provisions.
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6.5 Termination and Suspension of Service.If this Agreement is terminated,LIV will
implement an orderly return of Client Data in a format readable and useable in Microsoft Excel
within 30 days,and shall subsequently securely dispose of Client Data.Client will be entitled to
any reasonable post-termination assistance required to ensure Client has received the Client
Data in a useable form.LIV shall securely dispose of all requested data in all of its forms,such as
disk,CD/DVD,backup tape,and paper,when requested by the Client.Data will be permanently
deleted and not be recoverable,according to National Institute of Standards and Technology
(NIST)-approved methods.LIV will provide certificates of destruction to Client upon request.
SECTION 7.INTELLECTUAL PROPERTY OWNERSHIP;FEEDBACK
7.1 LIV IP.Client acknowledges that,as between Client and LIV,LIV owns all right,title,
and interest,including all intellectual property rights,in and to the LIV IP.
7.2 Client Data.LIV acknowledges that,as between LIV and Client,Client owns all right,
title,and interest,including all intellectual property rights,in and to the Client Data.Client
hereby grants to LIV a non-exclusive,royalty-free,worldwide license to reproduce,distribute,
and otherwise use and display the Client Data,and perform all acts with respect to the Client
Data,as may be necessary for LIV to provide Vault and the Services to Client.LIV may not,
without Client ’s prior written consent,use,resell,redistribute,,or republish the Client Data for
any other purpose,Including promotional services or commercial services,not directly related
to the provision of Services under this Agreement.
7.3 Feedback.If Client or any of its employees or contractors sends or transmits any
communications or materials to LIV by mail,email,telephone,or otherwise,suggesting or
recommending changes to the LIV IP,including new features or functionality relating thereto,or
any comments,questions,suggestions,or the like (“Feedback”),LIV is free to use such Feedback
irrespective of any other obligation or limitation between the parties governing such Feedback.
Client hereby assigns to LIV on Client ’s behalf,and on behalf of its employees,contractors,and
agents,all right,title,and interest in,and LIV is free to use,without any attribution or
compensation to any party,any ideas,know-how,concepts,techniques,or other intellectual
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property rights contained in the Feedback,for any purpose whatsoever,although LIV is not
required to use any Feedback.
SECTION 8.CONFIDENTIAL INFORMATION
8.1 Definition.From time to time during the Term,one party may disclose or make
available to the other information about the disclosing party ’s business affairs,products,
confidential intellectual property,trade secrets,third-party confidential information,and other
sensitive or proprietary information,whether orally or in written,electronic,or other form or
media,and whether or not marked,designated or otherwise identified as “confidential”
(collectively,“Confidential Information”).Confidential Information does not include information
that,at the time of disclosure is:(a)in the public domain;(b)known to the receiving party at the
time of disclosure,as demonstrated by the receiving party ’s written records;(c)rightfully
obtained by the receiving party on a non-confidential basis from a third party;or (d)
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independently developed by the receiving party without reliance on the disclosing party ’s
Confidential Information.
8.2 Nondisclosure and Nonuse.
8.2.1 The receiving party shall not disclose the disclosing party ’s Confidential
Information to any person or entity,except to the receiving party ’s employees who have a need
to know the Confidential Information for the receiving party to exercise its rights or perform its
obligations under this Agreement.Further,the receiving party shall not,without the disclosing
party’s prior written permission use Confidential Information for purposes other than internal
evaluation for so long as the Confidential Information must be maintained confidential,or
analyze,disassemble for reverse engineering,or otherwise attempt to identify the intrinsic
nature of any of the disclosing party ’s Confidential Information.
8.2.2 Notwithstanding the foregoing,the receiving party may disclose
Confidential Information to the limited extent required (i)in order to comply with the order of a
court or other governmental body,or as otherwise necessary to comply with applicable law;or
(ii)to establish the receiving party ’s rights under this Agreement,including to make required
court filings.
8.2.3 On the expiration or termination of the Agreement,the receiving party
shall promptly return to the disclosing party all copies,whether in written,electronic,or other
form or media,of the disclosing party’s Confidential Information,or destroy all such copies and
certify in writing to the disclosing party that such Confidential Information has been destroyed.
8.2.4 The parties’respective obligations of non-disclosure and non-use with
regard to Confidential Information are effective as of the Effective Date and will expire five years
from the date of each disclosure of Confidential Information to the receiving party;provided,
however,with respect to any Confidential Information that constitutes a trade secret (as
determined under applicable Law),such obligations of non-disclosure will survive the
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termination or expiration of this Agreement for as long as such Confidential Information remains
subject to trade secret protection under Law.
8.3 Breach;Equitable Relief.Each party acknowledges and agrees that a breach or
threatened breach by a party of any of its obligations under this Section 8 would cause the non
breaching party irreparable harm for which monetary damages would not be an adequate
remedy and agrees that,in the event of such breach or threatened breach,the non-breaching
party will be entitled to equitable relief,including a restraining order,an injunction,specific
performance and any other relief that may be available from any court,without any
requirement to post a bond or other security,or to prove actual damages or that monetary
damages are not an adequate remedy.Such remedies are not exclusive and are in addition to all
other remedies that may be available at law,in equity or otherwise.
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SECTION 9.STAFFING;WORK SITES;LAWS
9.1 Place and Condition of Work.Client shall provide LIV access to the sites where LIV is
to perform the services as required in order for LIV to perform the services in a timely and
efficient manner in accordance with and subject to the applicable security Laws.
9.2 Staffing.LIV is responsible for supplying its employees to perform the Services,and
for supervising and directing those employees.LIV will ensure that its employees are reasonably
competent and experienced to perform the Services.If,at any time during the performance of
this Agreement Client finds that the performance of LIV’s employees or subcontractors is
unsatisfactory,Client may object to the assignment of such employee or subcontractor,and LIV
shall assign another of its employees or subcontractors to perform the Services.
9.3 Compliance with Health,Safety,and Environmental Regulations.LIV and its
employees will comply in all material respects with all applicable Laws in the performance of the
Services,including those promulgated by the Client and by the Occupational Safety and Health
Administration (OSHA).
SECTION 10.INSURANCE.During the Term,LIV,at its cost and expense,shall purchase and
maintain the insurance set forth in this Section 10.Coverage must be provided by companies
qualified to do business in the state(s)in which the Services will be performed.
10.1 Workers’Compensation and Employers’Liability.Workers’Compensation
insurance must be provided as required by all applicable state laws.Employers’Liability
insurance must be provided in amounts of at least $100,000 each accident for bodily injury by
accident;$500,000 policy limit for bodily injury by disease;and $100,000 for each employee for
bodily injury by disease.
10.2 Commercial General Liability.LIV will obtain and maintain a Commercial General
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Liability (Occurrence)policy,which policy shall include coverage for premises and operations,
products and completed operations,contractual liability,broad form property damage,and
personal injury liability.The policy must have a combined single limit for bodily injury and
property damage of $1,000,000 each occurrence;$1,000,000 for personal injury liability;and
$2,000,000 general aggregate.
10.3 Insurance Certificate.Upon request,LIV will provide Client with a certificate
evidencing the required insurance coverages.
10.4 Notice of Policy Changes.The insurance policies required under this section must
all provide that they will not be terminated,cancelled,or allowed to expire without 30 days’
prior written notice to the insured.If so notified,LIV will notify Client of the change,timely
procure replacement coverage,and provide a replacement certificate to Client.
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SECTION 11.INDEMNIFICATION
11.1 LIV’s Indemnification Obligations.LIV shall indemnify,defend,and hold harmless
Client and its officers,directors,employees,agents,successors and permitted assigns (each,a
“Client Indemnitee”)from and against all losses,damages,liabilities,costs (including reasonable
attorneys’fees)(“Losses”)awarded against a Client Indemnitee in a final judgment and arising
out of or resulting from any third-party claim,suit,action or proceeding (each,a “Third-Party
Action”)for:
11.1.1 Bodily injury,death,or damage to real or tangible,personal property
resulting from LIV’s willful,fraudulent,or negligent acts or omissions;
11.1.2 Claims that allege Vault or the Services,or any use of Vault or the Services
in accordance with this Agreement,infringes or misappropriates such third party’s US patents,
copyrights,or trade secrets;provided that this Section 11.1.2 will not apply to the extent that
the alleged infringement arises from:(a)use of Vault or the Services in combination with data,
software,hardware,equipment,or technology not provided by LIV or authorized by LIV in
writing;(b)modifications to Vault or the Services not made by LIV;or (c)Client Data;
11.1.3 Any losses arising out of or related to LIV’s breach of any of LIV’s
representations,warranties,or obligations under this Agreement;or
11.1.4 Any losses awarded against Client in a final judgment and arising out of or
resulting from any Third-Party Action for bodily injury,death of any person or damage to real or
tangible,personal property,in each case resulting from LIV’s grossly negligent or willful acts or
omissions.
11.2 Client’s Liability.Client shall not be required to indemnify or hold LIV harmless
against liabilities arising from this Agreement.However,as between Client and LIV,and to the
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extent permitted by law and legally available funds,Client is responsible for and shall bear the
risk of loss for,shall pay directly,and shall defend against any and all claims,liabilities,
proceedings,actions,expenses,damages or losses arising under or related to:
11.2.1 Any Losses arising out of or related to Client ’s breach of any of Client ’s
representations,warranties,or obligations under this Agreement;and
11.2.2 Any Losses awarded against LIV in a final judgment and arising out of or
resulting from any Third-Party Action:
(a)For bodily injury,death of any person or damage to real or tangible,
personal property resulting from Client ’s grossly negligent or willful acts or omissions;
(b)Based on Client ’s or any Authorized User ’s (i)use of Vault or the
Services in combination with data,software,hardware,equipment,or technology not provided
by LIV or authorized by LIV in writing,or (ii)modifications to Vault or the Services not made by
LIV.
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11.3 Indemnification Procedures.The party seeking indemnification under this
Agreement must promptly notify the indemnifying party in writing of any Action and cooperate
with the indemnifying party at the indemnifying party ’s sole cost and expense.The indemnifying
party shall immediately take control of the defense and investigation of such Action and shall
employ counsel of its choice to handle and defend that Action,at the indemnifying party ’s sole
cost and expense.The indemnifying party shall not settle any Action in a manner that adversely
affects the rights of the indemnified party without the indemnified party ’s prior written consent,
which shall not be unreasonably withheld or delayed.The indemnified party ’s failure to perform
any obligations under this Section 11.3 will not relieve the indemnifying party of its obligations
under this Section 11.3 unless,and then solely to the extent that,the indemnifying party can
demonstrate that it has been materially prejudiced as a result of such failure.The indemnified
party may participate in and observe the proceedings at its own cost and expense.
11.4 Infringement Remedy.If a Third-Party Action that would entitle Client to
indemnification under Section 11.1.2 is made or appears possible,Client shall permit LIV,at LIV’s
sole discretion,to (a)modify or replace Vault or the Services,or component or part thereof,to
make it non-infringing,or (b)obtain the right for Client to continue to use the item in question.
If LIV determines that neither alternative is reasonably available,LIV may terminate this
Agreement,either in its entirety or with respect to the affected component or part,effective
immediately on written notice to Client.SECTION 11.1.2 AND THIS SECTION 11.4 SET FORTH
CLIENT’S SOLE REMEDIES AND LIV ’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL,
THREATENED,OR ALLEGED CLAIM THAT VAULT OR THE SERVICES INFRINGE,MISAPPROPRIATE,
OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.LIV’S
LIABILITY UNDER SECTION 11.1.2 AND THIS SECTION 11.4 IS SUBJECT TO THE LIABILITY LIMITS
SET FORTH IN SECTION 12.
SECTION 12.ASSUMPTION OF RISK;LIMITATION OF LIABILITY
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12.1 Risks Inherent to Internet.Client acknowledges that:(a)the Internet is a
worldwide network of computers;(b)communication on the Internet may not be secure;(c)the
Internet is beyond LIV’s control;and (d)LIV does not own,operate or manage the Internet.
Client also acknowledges that there are inherent risks associated with using Vault and the
Services,including the risk of breach of security,the risk of exposure to computer viruses and
the risk of interception,distortion,or loss of communications.Client assumes the general risks
arising from utilization of the internet knowingly and voluntarily.Without limiting the foregoing,
Client hereby assumes the risk of,and LIV will have no responsibility or liability of any kind
under this Agreement for:(1)errors in Vault or the Services resulting from misuse,negligence,
revision,modification,or improper use of all or any part of Vault or the Services by any entity
other than LIV or its authorized representatives,employees,contractors,or consultants;(2)
Client ’s use of any version of Vault other than the then-current unmodified version provided to
Client;(3)Client ’s failure to timely or correctly install any updates to Vault;(4)problems caused
by connecting or failure to connect to the Internet;(5)failure to provide and maintain the
technical and connectivity configurations for the use and operation of Vault that meet LIV’s
recommended requirements;(6)nonconformities resulting from or problems to or caused by
non-LIV products
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or services;or (7)data or data input,output,accuracy,and suitability,which will be deemed to
be under Client ’s exclusive control.The assumption of risk stated in clause (1)of the preceding
sentence will only apply if LIV has taken commercially reasonable steps to prevent and safeguard
against the types of errors listed in that clause (1).
12.2 Exclusion of Certain Damages;Limitation of Liability.IN NO EVENT WILL LIV BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE
THEORY,INCLUDING BREACH OF CONTRACT,TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY,
AND OTHERWISE,FOR ANY:(a)CONSEQUENTIAL,INCIDENTAL,INDIRECT,EXEMPLARY,SPECIAL,
ENHANCED,OR PUNITIVE DAMAGES;(b)INCREASED COSTS,DIMINUTION IN VALUE OR LOST
BUSINESS,PRODUCTION,REVENUES,OR PROFITS;(c)LOSS OF GOODWILL OR REPUTATION;(d)
USE,INABILITY TO USE,LOSS,INTERRUPTION,DELAY OR RECOVERY OF ANY DATA,OR BREACH
OF DATA OR SYSTEM SECURITY;OR (e)COST OF REPLACEMENT GOODS OR SERVICES,IN EACH
CASE REGARDLESS OF WHETHER LIV WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR
DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
12.3 Exceptions.The exclusions and limitations in Section 12.2 do not apply to:(a)
damages or other liabilities arising out of or relating to a party’s failure to comply with its
obligations under Section 8 (Confidential Information);(b)damages or other liabilities arising
out of or relating to a party ’s willful misconduct or intentional acts;(c)Third-Party Actions for
death or bodily injury or damage to real or tangible personal property resulting from a party ’s
willful or grossly negligent acts or omissions;and (d)a party’s obligation to pay attorneys’fees
and court costs in accordance with Section 14.5.
SECTION 13.FORCE MAJEURE
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13.1 Neither party will be liable or responsible to the other party,nor be deemed to
have defaulted under or breached this Agreement,for any failure or delay in fulfilling or
performing any term of this Agreement (except for any obligations to make payments to the
other party hereunder),when and to the extent such failure or delay is caused by or results from
acts beyond the affected party’s reasonable control,including (a)acts of God;(b)flood,fire or
explosion;(c)war,invasion,riot or other civil unrest;(d)actions,embargoes or blockades in
effect on or after the date of this Agreement;(e)national or regional emergency;(f)strikes,
labor stoppages or slowdowns or other industrial disturbances;(g)compliance with any law or
governmental order,rule,regulation or direction,or any action taken by a governmental or
public authority,including imposing an embargo,export or import restriction,quota or other
restriction or prohibition,or failing to grant a necessary license or consent;(h)shortage of
adequate power or telecommunications or transportation facilities;or (i)any other event that is
beyond the reasonable control of such party (each of the foregoing,a “Force Majeure Event”).
13.2 A party whose performance is affected by a Force Majeure Event must give notice
to the other party,stating the period of time the occurrence is expected to continue and must
use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure
Event.The non-affected party may terminate this Agreement or any affected SOW if such failure
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or delay continues for a period of 60 days or more and,if the non-affected party is the Client,
receive a refund of any amounts paid to the LIV in advance for the affected Services..
SECTION 14.MISCELLANEOUS
14.1 Notices.All notices permitted or required under this Agreement must be in writing
and may be delivered (i)in person,with the date of notice being the date of personal delivery;
(ii)by U.S.Mail,postage prepaid for certified or registered mail,return receipt requested,with
the date of notice being three days following the date of the postmark on the return receipt;(iii)
by nationally recognized delivery service such as Federal Express,with the date of notice being
the date of delivery as shown on the confirmation provided by the delivery service;(iv)by
e-mail,with confirmation of sending of the e-mail and a copy of the e-mail dispatched the same
day by one of the methods in clauses (ii)and (iii),with the date of notice being the date of the
e-mail.Notices must be addressed to the following addresses,or such other address as one
party shall provide the other parties:
To LIV:Life Safety Inspection Vault LLC
Attn.:Manager
146 East Chubbuck Road,Suite C
Chubbuck,ID 83202
Phone:(208)254-7718
E-mail:Cole.harding@livsafe.com
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To Client:Elk River Fire Department
Attn.:Fire Chief
13073 Orono Pkwy NW
Elk River,MN
Phone:763-350-1105
Email:mdickinson@elkrivermn.gov
14.2 Interpretation.Headings in this Agreement are for convenience only and will not
affect its meaning.For purposes of this Agreement,(a)the words “include,”“includes,”and
“including ”will be deemed to be followed by the words “without limitation”;(b)the word “or ”
is not exclusive;and (c)the words “herein,”“hereof,”“hereby,”“hereto,”and “hereunder ”refer
to this Agreement as a whole.This Agreement must be construed simply according to its fair
meaning and without regard to any presumption or rule requiring construction or interpretation
against the party drafting an instrument or causing any instrument to be drafted.Each
Registration Form,each SOW,and all exhibits other documents referred to in this Agreement
must be construed with,and as an integral part of,this Agreement to the same extent as if they
were set forth verbatim in the body of this Agreement.
14.3 Amendment and Modification;Waiver.No amendment to or modification of this
Agreement is effective unless it is in writing and signed by an authorized representative of each
Party.No waiver by any Party of any of the provisions hereof will be effective unless explicitly set
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forth in writing and signed by the Party so waiving.No waiver by either party of any default in
performance by the other party,or any waiver by either party of any breach,or series of
breaches,of any of the terms,covenants,or conditions of this Agreement will constitute a
waiver of any subsequent breach of any such terms,covenants,or conditions.
14.4 Severability.If any provision of this Agreement is invalid,illegal,or unenforceable
in any jurisdiction,such invalidity,illegality,or unenforceability will not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or provision in any
other jurisdiction.Upon such determination that any term or other provision is invalid,illegal,or
unenforceable,the parties will negotiate in good faith to modify this Agreement so as to effect
their original intent as closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement will be consummated as originally contemplated
to the greatest extent possible.
14.5 Choice of Law;Attorneys’Fees.The parties intend for this Agreement to be
construed and enforced under the laws of the State of Minnesota,except for its choice of law
provisions.The parties specifically exclude the application of the United Nations Convention on
Contracts for the International Sale of Goods.The prevailing party in any proceeding will be
entitled to recover in any judgment its reasonable attorneys’fees as may be allowed by the
court,together with such court costs and damages as may be provided by Law.
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14.6 Assignment.Neither Client nor LIV may assign any of its rights or delegate any of its
obligations under this Agreement,in each case whether voluntarily,involuntarily,by operation
of law or otherwise,without the other party ’s prior written consent,which consent may not be
unreasonably withheld,delayed,or conditioned.Any purported assignment or delegation in
violation of this Section 14.6 is void.No assignment or delegation will relieve the assigning or
delegating party of any of its obligations under this Agreement.This Agreement is binding upon
and inures to the benefit of the parties and their respective permitted successors and assigns.
14.7 Export Regulation.Vault and the Services utilize software and technology that may
be subject to US export control laws,including the US Export Administration Act and its
associated regulations.Client shall not,directly or indirectly,export,re-export,or release the
Services or the underlying software or technology to,or make the Services or the underlying
software or technology accessible from,any jurisdiction or country to which export,re-export,
or release is prohibited by law,rule,or regulation.Client shall comply with all applicable federal
laws,regulations,and rules,and complete all required undertakings (including obtaining any
necessary export license or other governmental approval),before exporting,re-exporting,
releasing,or otherwise making the Services or the underlying software or technology available
outside the US.
14.8 US Government Rights.Each of the Documentation and the software components
that constitute Vault and the Services is a “commercial item”as that term is defined at 48 C.F.R.
§2.101,consisting of “commercial computer software”and “commercial computer software
documentation”as such terms are used in 48 C.F.R.§12.212.Accordingly,if Client is an agency
of the US Government or any contractor therefor,Client only receives those rights with respect
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56428.0002.14325562.1
to Vault,the Services,and the Documentation as are granted to all other end users,in
accordance with (a)48 C.F.R.§227.7201 through 48 C.F.R.§227.7204,with respect to the
Department of Defense and its contractors,or (b)48 C.F.R.§12.212,with respect to all other US
Government users and their contractors.
14.9 Entire Agreement.This Agreement,together with any other documents
incorporated into this Agreement by reference,the Registration Form(s),and all SOW(s)
constitutes the parties’sole and entire agreement with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous understandings,agreements,and
representations and warranties,both written and oral,with respect to such subject matter.If
there is any inconsistency between the statements made in the body of this Agreement,the
Registration Forms(s),the related Exhibits,and any other documents incorporated herein by
reference,the following order of precedence governs:(i)first,this Agreement,excluding its
exhibits;(ii)second,the applicable SOW;(iii)third,any Registration Form;and (iv)fourth,any
other documents incorporated herein by reference.
14.10 Counterparts.This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original,all of which constitute one and the same
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Agreement.Delivery of an executed counterpart signature page of this Agreement by facsimile,
electronic mail in portable document format (.pdf),or by any other electronic means intended
to preserve the original graphic and pictorial appearance of a document,has the same effect as
delivery of an executed original of this Agreement.
The parties are signing this Agreement as of the Effective Date.
LIFE SAFETY INSPECTION VAULT LLC,
an Idaho limited liability company
By:
Name:Cole Harding
Title:President
Elk River Fire Department ,a
municipal corporation of the State of
Minnesota
By:
Name:Mark Dickinson
Title:Fire Chief
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