HomeMy WebLinkAboutbocc.con.144.228/30/2021 CDD
Contract Information
Contract Number
Project Name
Contractor
Budget Line Item
Procurement Method:
Type:
Contract Start Date
Contract End Date
Contract Type
Retainage
If this is a new contractor, please enter the New Vendor information into Munis for workflow approval.
Contact Information:
Department
County Representative Parker Lathrop County Representative
Phone (970) 948-6986
Provide a brief description of the Contract or Change Order:
Contract Value Summary:
$ 31,944.77
$ -
$ -
$ 31,944.77
Sheriff
Service Contract for use of twenty-eight (28) laptops and eight (8) office dock adapters with
accompanying GETAC Public Safety hardware. Use agreement is pro-rated over a 5-year term for a
total cost of $159,723.92 paid annually.
Original Contract Amount
Previous Change Order/Amendment Amount
This Change order/Amendment amount
Contract Total
No
Public Safety Technology Software & Hardware
Upstate Wholesale Supply, Inc dba Brite
$31,944.77
Additional Budget Line
Item(s)
(Please fully allocate New Contract Total)
$-
$-
$-
$31,944.77
Informal
Services/Maintenance
6/1/2022
5/31/2023
New Contract
144.22
Pitkin County
Procurement Cover Sheet
Please complete the Contract Cover Sheet when the contract/task order is complete and fully executed.
Return all Contract Cover Sheets and Contracts/Change Orders/Amendments/Task Orders to Procurement
10013100.531500
Contract #: 213.21 Rev. 2018.10.10 btf
Budget Line Item #: 10013100.531500
PITKIN COUNTY, COLORADO
INFORMAL PROCUREMENT MEMORANDUM
TO: File
FROM: Parker Lathrop
RE: Informal Procurement under $50,000
DATE: April 18, 2022
Description of Project: GETAC Ruggedized Laptop Hardware/Software Lease
Budgeted Amount: ($31,944.77)
On project list approved by BOCC: Yes
Contractors Contacted: Brite Solutions / Lenovo Financial Services, Mobile Rugged Computers,
and Island Tech Services
Proposals Received:
Vendor Name Proposal Amount Timeline Other Information
Brite Solutions /
Lenovo Financial
Services
$159,723.92 N/A - delivery
calculated at time of
order
Local support; good
integration w/ other
systems - Cost is
spread over a 5-year
term.
Mobile Rugged
Computers
$192,738.00 N/A - delivery info not
available
AZ based
Island Tech Services $126,418.88 N/A - not able to
provide firm
delivery dates
Local support not
available,
questionable
integration w/
continuing systems
Firms chosen: Brite Solutions / Lenovo Financial Services, We demo'd several solutions, and
Brite consistently displayed the best understanding and adaptiveness to meet our needs. They
have representation and support in CO, so support, virtual or in person, will be responsive.
COUNTY REPRESENTATIVE:
________________________________________________
Parker Lathrop
PCSO Chief Deputy of Operations
Jun-24-2022
We have prepared a quote for you
Pitkin CSO, CO - 28 B360s
Quote # 000713
Version 1
Prepared for:
Pitkin County Sheriff's Department - CO
Parker Lathrop
parker.lathrop@pitkinsheriff.com
Quote - HaAS only
Description Price Qty Ext. Price
BM47T6BA68FX GETAC : B360 Fully Rugged 13.3in Laptop,Intel Core i7-
10510U,Webcam,Win10 Pro+16GB RAM,512GB PCIe SSD,Sunlight
Readable FHD LCD+Touch,Backlit KBD+HF RFID,WiFi+BT+4G LTE+
GPS/Glonass+PT,RS232+USB 3.1 Gen 2 Type-C,SCR,RJ45,HDMI,3
YearB2B Warranty
$4,822.00 28 $135,016.00
GE-SVBFNFX5Y Service, Getac, B360 Fully rugged, Bumper-to-Bumper+Extended
Warranty, 5, Years
$691.00 28 $19,348.00
OSGDX1XXCXXX Getac Driving Safety Utility, Hardware-Locked Perpetual License, with 3
Years Maintenance
$99.00 28 $2,772.00
GDODU1 Getac : B360 - Office Dock with 120W AC Adapter (US)$323.49 8 $2,587.92
NOTE: Part numbers and pricing may change due to industry availability and changes.
Subtotal:$159,723.92
Quote#000713 v1 www.brite.com | salesinfo@brite.com | 1-800-333-0498 Page: 2 of 3
Pitkin CSO, CO - 28 B360s
Prepared by:Prepared for:Quote Information:
Brite Pitkin County Sheriff's Department - CO Quote #: 000713
Brian DeNomme
605-553-6620
Fax 585-758-0222
bdenomme@brite.com
506 E Main St Ste 204
Aspen, CO 81611
Parker Lathrop
(970) 920-5300
parker.lathrop@pitkinsheriff.com
Version: 1
Delivery Date: 05/27/2022
Expiration Date: 05/31/2022
Quote Summary
Description Amount
Quote - HaAS only $159,723.92
Total:$159,723.92
Agreed upon payment terms: NET 30
Any changes to the orders after acceptance may result in additional fees.
Any returns must be accompanied by a return authorization and will be subject to restocking fees.
All services will be invoiced upfront and efforts debited against the units described above.
All hardware and accessories will be invoiced when shipped.
All software will be invoiced upon delivery of license.
All subscriptions will be invoiced when activated.
Terms and conditions listed within a Master Services Agreement or Statement of Work supersede any listed here.
Travel costs will be billed separately unless otherwise stated.
All support is considered manufacturers depot warranty support unless otherwise stated.
Taxes are NOT included within the quote. Appropriate taxes will be included with the Invoice.
Taxes, shipping, handling and other fees may apply. We reserve the right to cancel orders arising from pricing or other errors.
Pitkin County Sheriff's Department - CO
Signature:
Name:Parker Lathrop
Date:
Quote#000713 v1 www.brite.com | salesinfo@brite.com | 1-800-333-0498 Page: 3 of 3
Jun-24-2022
BRITE 2022 CONFIDENTIAL
{8609802:3 } 1
MASTER SERVICES AGREEMENT
(Professional Services, BRITEPROTECT, BRITESTAR)
This Master Services Agreement (the “MSA”) is effective as of the 26 day of 5, 2022 (the “Effective Date”) between
Upstate Wholesale Supply, Inc. D/B/A Brite ("Brite"), a New York corporation having a principal place of business
at 7647 Main Street, Victor, NY 14564, on behalf of itself and its affiliates and Pitkin County Sheriff (“Customer”),
with offices at 506 E. Main St Suite 204 Aspen,CO 81611, on behalf of itself, its subsidiaries, and affiliates. Brite
and Customer are individually referred to as a “Party” and collectively as the “Parties”.
1. SERVICES/STATEMENTS OF WORK. Brite shall provide Customer with certain professional services,
managed IT services and/or managed security services (the “Work”) as specified on each statement of work (each, a
“Statement of Work”) that has been executed by an authorized representative of each Party. Each Statement of Work
shall be deemed to be incorporated into this MSA. On and subject to the terms and conditions of this MSA and each
Statement of Work, Brite shall perform and deliver the Work and Customer shall accept and pay for the Work. In the
event of a conflict between the terms of this MSA and any Statement of Work, the terms of the Statement of Work
shall govern.
2. TERM. The term of this MSA shall begin on the Effective Date and, unless sooner terminated as provided
herein, this MSA shall continue for three (3) years (the “Initial Term”). Upon expiration of the Initial Term, the term
of this MSA shall continue on a month-to-month basis (each a “Renewal Term” and collectively with the Initial
Term, the “Term”), terminable by either Party on thirty (30) days prior written notice to the other Party. This MSA
shall continue to apply to any Statement of Work in effect beyond the expiration or termination of this MSA.
3. CHARGES. Brite shall submit to Customer periodic invoices for the Work rendered. Unless contrary
payment terms are specified in the applicable Statement of Work, (i) monthly recurring charges for subscription
services shall be billed in advance of the service period and non-recurring charges shall be billed in arrears; and (ii)
the entire amount of such invoices shall be paid within thirty (30) days from the invoice date (the “Due Date”). A
late charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law shall be
paid on any invoice past due until such delinquent invoice is paid. All invoices and payments shall be in U.S. dollars.
If amounts due under the Invoice are not paid by the Due Date, Brite may, at its option, upon ten (10) days written
notice, immediately suspend all Work under all Statement(s) of Work until payment is received in full (including
without limitation suspension of access to any Licensed Software (as defined in Section 11) and/or, upon thirty (30)
days written notice, terminate this MSA and all Statement(s) of Work for breach. In addition to the late charge,
Customer shall be responsible for all Brite’s collection costs, including reasonable attorneys’ fees, incurred in
connection with any breach or threatened breach of this MSA or Brite’s exercise of any remedies hereunder. Customer
shall use all commercially reasonable efforts to notify Brite of any objection to any invoice within thirty (30) calendar
days of the invoice date, identifying the reasons therefor in writing and timely paying that portion of the invoice not
in dispute. Invoices will be considered acceptable to Customer if no such objections are made with one hundred eighty
(180) days of the invoice date. The rates for Work do not include any federal, state, county, local, or other taxes
howsoever designated and whether levied or based upon such charges, this MSA, or any other service supplied
hereunder (“Taxes”). Any Taxes or amounts in lieu thereof paid or payable under this MSA, exclusive of personal
property taxes and taxes based on the net income of Brite, shall be borne by Customer.
Unless otherwise specified in the applicable Statement of Work, in addition to the fees and charges for the Work set
forth in therein, Customer shall reimburse Brite for all reasonable travel and living expenses incurred by Brite or Brite
personnel in the course of performing any Work, in accordance with the Customer’s travel policies which the
Customer shall provide to Brite prior to the commencement of any Work or, if Customer does not provide such a
policy to Brite, then in accordance with Brite’s standard policies . Customer shall reimburse Brite for all pre-approved,
third-party charges for software, hardware or other materials procured by Brite for Customer, which software,
hardware or other materials shall, upon payment for the same to Brite, becomes the property of the Customer.
4. CONFIDENTIALITY AND SECURITY
A. From time to time during the Term, either Party (as such, the “Disclosing Party”) may disclose or make
available to the other Party (as such, the “Receiving Party”) information about its business and affairs,
whether disclosed orally or in writing, or in any electronic format or media, or by inspection of tangible
BRITE 2022 CONFIDENTIAL
{8609802:3 } 2
objects, and whether or not marked, designated or otherwise identified as “confidential” (collectively,
“Confidential Information”). Notwithstanding the foregoing, “Confidential Information” shall not
include any information of the Disclosing Party which: (i) is or becomes generally publicly known through
no fault of the Recipient; (ii) was already known to the Recipient at the time of disclosure by the Disclosing
Party as evidenced by written documents; (iii) was independently developed by the Recipient without
reference to or use of any Confidential Information of the Disclosing Party; or (iv) is rightfully obtained by
the Recipient on a non-confidential basis from a third party provided that such third party is not and was not
prohibited from disclosing such Confidential Information.
B. During the Term of this MSA and for a period of three (3) years thereafter, the Recipient shall not, without
the prior written consent of the Disclosing Party, (i) use or exploit any Confidential Information of the
Disclosing Party for any purpose except for the purpose exercising its rights or performing its obligations
under this MSA or (ii) reveal or disclose any Confidential Information of the Disclosing Party to any person
or entity other than such of Recipient’s employees and contractors (collectively, its “Personnel”) who have
a need to know such Confidential Information in order for the Recipient to exercise its rights or perform its
obligations under this MSA. Each Party also agrees that, without the prior written consent of the other Party,
it shall not disclose the existence or terms of this MSA to any other person or entity other than its outside
auditors, financial advisors, attorneys or other professional advisors (collectively, its “Advisors”) on a need
to know basis with respect to any financing, audit or other engagement of such Advisors. The Recipient shall
advise any of its Personnel or Advisors to whom any Confidential Information of the Disclosing Party is
disclosed that the information is confidential and that by receiving such information such individuals are
agreeing to be bound by the terms of this Section 4 and are agreeing not to use such information for any
purpose other than described herein. The Recipient shall be responsible for any breach of this Section 4
caused by its Personnel and Advisors. Without the Disclosing Party’s prior written consent, Recipient shall
not, and shall direct such individuals not to, disclose the Information in whole or in part, except to the extent
compelled by law.
C. The Recipient acknowledges that all Confidential Information of the Disclosing Party is and shall be and
remain the sole and exclusive property of the Disclosing Party. The Recipient shall return to the Disclosing
Party all Confidential Information and copies thereof that it has received under this Agreement promptly after
a request by the Disclosing Party.
D. The Recipient shall protect the Confidential Information of the Disclosing Party with the same degree of care
as the Recipient employs for the protection of the Recipient's own Confidential Information (but in no event
shall such care be less than that which is commercially reasonable). In furtherance thereof, the Recipient shall
establish and maintain commercially reasonable administrative, physical and technical safeguards to protect
against the unauthorized access, use or disclosure of the Disclosing Party’s Confidential Information. The
Recipient agrees to promptly notify the Disclosing Party of any unauthorized use or disclosure of the
Confidential Information of the Disclosing Party and to provide assistance to the Disclosing Party, and its
licensors, in the investigation and prosecution of such unauthorized use and disclosure.
E. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of
Recipient’s obligations under this Section 4 by the Recipient, or its Personnel or Advisors, and that the
Disclosing Party shall be entitled to seek specific injunctive relief as a remedy for any such breach. Such
remedy shall not be deemed to be the exclusive remedy for the breach of obligations under this Section 4 but
shall be in addition to all other available legal or equitable remedies.
F. If the Parties have previously executed a Nondisclosure Agreement, the Nondisclosure Agreement is hereby
terminated and any and all information disclosed by either Party pursuant to such Nondisclosure Agreement
shall be deemed to have been disclosed and shall be held on the terms and subject to the conditions set forth
in this MSA
5. LIMITATION OF LIABILITY. Neither Customer nor Brite shall be liable to the other Party or to any
third party for any lost profits; any loss of business; any cost of replacement services; or any indirect, consequential,
incidental, or special losses or damages of any kind or nature whatsoever, howsoever caused, including without
limitation loss of equipment, software, data or information, whether arising out of breach of contract, tort (including
BRITE 2022 CONFIDENTIAL
{8609802:3 } 3
negligence) or otherwise and regardless of whether such damage was foreseeable and whether or not such party has
been advised of the possibility of such damages. The Parties agree that the terms in this Section represent a reasonable
allocation of risk given the nature of the Work to be provided hereunder. The sole and exclusive remedy of Brite and
of Customer for any claim, loss, or damages in any way related to, or arising out of, this MSA or any Work provided
or anticipated to be provided hereunder shall be limited to such Party's actual, direct damages; provided, however,
subject to the provisions of subsections (i) and (ii) below hereof, the aggregate amount of all such actual, direct
damages shall not exceed the amounts paid or accrued and unpaid under the Statement of Work governing the Work
with respect to which the dispute arose for the one year prior the event giving rise to the claim (the “Cap Amount”).
(i) The Cap Amount shall not apply to or limit the liability of Customer for any claims for payment of the
full invoiced amounts due or for payment of any Minimum Purchase Commitments or Early Termination
Fees as specified in any Statement(s) of Work (hereinafter the “ETF”). The ETF shall not be deemed to
be liquidated damages but the Parties’ reasonable estimate at the time the applicable Statement of Work
was entered into of Brite’s damages for early termination of the Work covered thereby.
(ii) The Cap Amount shall not apply to or limit either Party's liability for actual, direct damages for any
claims of a breach of its confidentiality obligations under Section 4 above or for any claims for
indemnification under Section 8 below.
The limitations expressed in this section shall not preclude either Party from seeking injunctive relief. Any cause of
action or claim brought by either Party against the other Party for breach of this MSA, for tortious conduct or for any
other cause or claim, must be commenced within one (1) year after such cause or claim has accrued or shall thereafter
be completely and forever barred.
6. WARRANTY. Brite represents and warrants to Customer that it shall perform the Work using personnel of
required skill, experience and qualifications and in a professional and workmanlike manner in accordance with
generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations
under this MSA. Nothing in this MSA (including any Statement of Work) or any materials provided to Customer by
Brite in connection with the Work shall be construed as a promise or guarantee as to the outcome of the Work. Brite
makes no warranties for any third-party equipment, software and the like furnished by Brite and such warranties shall
be limited to those warranties provided by the third-party equipment manufacturers and the software licensors.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, BRITE MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK AND EXPLICITLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT (WHETHER OR NOT BRITE KNOWS, HAS REASON TO KNOW, HAS BEEN
ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO
ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
Customer must notify Brite in writing of any breach of the limited warranty set forth in this Section 6 within thirty
(30) days after the Work has been performed. If Brite agrees that such Work is in breach, Brite shall, at its discretion,
either remedy such breach or refund the fees paid by Customer to Brite for such Work. THIS REMEDY IS
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY BREACH OF THE LIMITED
WARRANTY SET FORTH IN THIS SECTION 6.
7. COMPLIANCE WITH LAW. Each Party is responsible for ensuring that all materials and information
provided to the other Party to be used in connection with the Work under this MSA, and the Work provided under this
MSA, shall comply with all applicable laws and regulations in the jurisdictions in which the Work is provided
hereunder. Each Party will be responsible for compliance with all laws, rules, and regulations involving, but not
limited to, employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes, such
as unemployment, Social Security, and other payroll taxes, including applicable contributions from such persons when
required by law. In accordance with data privacy laws and regulations applicable to this MSA, which may include,
but not be limited to, the Gramm-Leach-Bliley Act (“GLBA”) and the Health Insurance Portability and Accountability
Act (“HIPAA”), Brite shall not disclose or permit access to or use the non-public personal information of Customer
or its customers made available by Customer to Brite for any purposes other than those specifically required to fulfill
Brite’s contractual obligations with Customer.
BRITE 2022 CONFIDENTIAL
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8. INDEMNIFICATION. Each Party (“Indemnitor”) shall indemnify, hold harmless, and defend the other
Party and its respective employees, officers, and directors (collectively, “Indemnitee”) from and against any and all
claims, damages, losses, liabilities, actions, proceedings (whether legal or administrative), demands, and expenses
(including but not limited to reasonable attorneys' fees) threatened, asserted or filed by a third party against the
Indemnitee (the “Claims”), but only to the extent that such Claims (i) relate to any personal injury or damage to
property resulting from the negligence or willful misconduct of the Indemnitor, its employees, subcontractors, agents
and/or those that it is legally liable for in connection with the Work; or (ii) are based upon any claim that any materials
supplied by the Indemnitor (including without limitation the Confidential Information) and used by the Indemnitee
for its intended purpose and in accordance with the terms of this MSA infringes any copyright, trade secret or other
proprietary right of any third party, provided that the provisions of the foregoing subsection (ii) shall not apply with
respect to any third party software or equipment installed by Brite for Customer or distributed or sub-licensed to
Customer by Brite as an agent or distributor or reseller of the licensor of such software or the equipment.
The obligations of this Section 8 are contingent upon the Indemnitee (i) giving the Indemnitor prompt written notice
of any such claim; (ii) allowing the Indemnitor to control the defense and related settlement negotiations; and (iii)
providing reasonable cooperation, at the Indemnitor’s expense, in the defense and all related settlement negotiations.
Without the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or
delayed, the Indemnitor shall not enter into any agreement which results in liability to the Indemnitee except for
liabilities for monetary damages to be paid by the Indemnitor. THE RIGHTS GRANTED TO THE INDEMNITEE
UNDER THIS SECTION SHALL BE THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AGAINST THE
INDEMNITOR FOR ALLEGED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
OF ANY KIND.
9. ASSIGNMENT. Neither Party may assign the MSA (including any Statement of Work) without the prior
written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned, provided
that either Party may assign its rights and obligations under the MSA without the approval of the other Party to (i) an
entity which acquires all or substantially all of the assets of the assigning Party or (ii) to any entity affiliated with,
controlling, controlled by or under common control with such Party, provided that such assignee affirmatively assumes
in writing the obligations of the assigning Party hereunder. Any attempted assignment, transfer, or other conveyance
in violation of the foregoing shall be null and void. This MSA shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and permitted assigns.
10. FORCE MAJEURE. No Party shall be liable for any default or delay in the performance of its obligations
under the MSA, excluding obligations for the payment of any invoices, if and to the extent the default or delay is
caused, directly or indirectly, by fire, flood, elements of nature, acts of God, acts of war, terrorism or civil unrest, or
any other similar cause beyond the reasonable control of the Party. In such event, the non-performing Party is excused
from further performance for as long as such circumstances prevail and the Party continues to use commercially
reasonable efforts to recommence performance. Any Party so delayed shall promptly notify the other and describe
the circumstances causing the delay.
For the avoidance of doubt, each Party understands and agrees that this contract is being entered into during a period
of a COVID-19 pandemic and while each Party shall use all reasonable efforts to mitigate delays, the timing of
deliverables under this agreement may be impacted by COVID-19 events
11. LICENSED SOFTWARE AND INTELLECTUAL PROPERTY. To the extent that the Work includes
the license of software for the Customer’s use during the Term (either on a licensed basis or through a software for
services application) (collectively the “Licensed Software”), the name and version of the Licensed Software, the
name of the licensor (the “Licensor”) and the number of permitted users shall be specified on the applicable Statement
of Work. As applicable to any Licensed Software specified on a Statement of Work, Brite (as the Licensor or the sub-
licensor) hereby grants to Customer a non-exclusive, limited, revocable, non-transferable license to allow the
permitted users to use the Licensed Software for its intended purposes, and, as applicable, in accordance with any end
user license terms and conditions of the Licensor (the “EULA”) Customer may not, nor permit any third party to,
copy the Licensed Software; modify, translate or otherwise create derivative works of the Licensed Software, or;
reverse-engineer the Licensed Software. Customer understands and agrees that no title to the Licensed Software, or
any improvement, modification or enhancement thereto, shall pass to the Customer under this MSA. Customer’s
rights in the Licensed Software are limited to the limited license expressly granted herein. As between the Customer
BRITE 2022 CONFIDENTIAL
{8609802:3 } 5
and Brite, Brite exclusively owns all intellectual property rights, title and interest in any ideas, concepts, know-how,
documentation or techniques Brite provides under this MSA, and all technology available on the Brite servers and
equipment (other than those components which are licensed from others). Brite shall have the right to use the
techniques, methodologies, tools, ideas and other know-how gained during the performance of the Work in the
furtherance of its own business and to perfect all intellectual property rights related thereto, subject to Brite’s
obligations of confidentiality as set forth in Section 4 hereof with respect to the Customer’s Information.
Notwithstanding any other provision of this MSA to the contrary, including the provisions of Section 17 (Dispute
Resolution), Brite and/or its Licensors shall be entitled to pursue any and all remedies available at law or in equity in
the event of a breach or threatened breach by Customer of the provisions of this Section 11 and/or the EULA, including
preliminary and permanent injunctions.
12. APPLICABLE LAW. This MSA and all matters arising out of or relating to this MSA, whether sounding
in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of New York,
without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or
permit the application of the laws of any jurisdiction other than those of the State of New York.
13. TERMINATION. Notwithstanding the provisions regarding the term of this MSA set forth in Section 2
above, and in addition to the parties' rights of termination specifically provided elsewhere in this MSA, the following
shall apply:
A. Except during the term of any Statement(s) of Work, this MSA may be terminated by either Party for
convenience on thirty (30) days advance written notice to the other Party, subject to payment of all
amounts due for Work rendered prior to termination.
B. In the event that one Party breaches any material obligation under this MSA or any Statement(s) of Work
(other than payment obligations, which are governed by Section 3 above), the non-breaching Party shall
give the breaching Party written notice of the breach and request that the breach be cured (“Cure
Notice”). If the breaching Party fails to implement a reasonable corrective action plan and take
reasonable action steps to accomplish the plan within thirty (30) days of receipt of the Cure Notice (or
such other mutually agreed upon time), the non-breaching Party shall have the right to terminate this
MSA and any or all applicable Statement(s) of Work immediately upon providing written notice to the
breaching Party. The non-breaching Party shall have the sole discretion to determine whether the
aforementioned corrective action plan and action steps are reasonable. If Brite’s performance of its
obligations are prevented or delayed by any act or omission of Customer or its agents, subcontractors,
consultants or employees, Brite shall not be deemed in breach of its obligations under this MSA.
C. Either Party may, at its option, terminate this MSA effective immediately upon written notice upon the
occurrence of an Insolvency Event of Default (as defined below) with respect to the other Party. For
purposes of this Agreement, the occurrence of any one or more of the following events with respect to a
Party shall constitute an “Insolvency Event of Default”: (i) such Party admits in writing its inability to
pay its debts generally or makes a general assignment for the benefit of creditors; (ii) any affirmative act
of insolvency by the such Party or the filing by such Party, or against such Party and not dismissed within
ninety (90) days, of any petition or action under any bankruptcy, reorganization, insolvency arrangement,
liquidation, or dissolution; or (iii) the subjection of a material part of the such Party’s property to any
levy, seizure, assignment or sale for or by any creditor.
D. In the event of termination of this MSA and/or any Statement(s) of Work by Brite for Customer’s
uncured breach, or by Customer for its convenience, Customer shall pay Brite the ETF, if any, specified
in the applicable Statement(s) of Work, which ETF shall be due and payable on the termination date.
E. Upon termination of any Statement(s) of Work, (i) the right of the Customer to use any Licensed
Software granted under such Statement(s) of Work shall immediately terminate; (ii) the Customer shall
immediately discontinue its use of such Licensed Software; and (iii) the Customer shall immediately
return to Brite all Confidential Information of Brite and any and all equipment and materials provided
by Brite for Customer’s use in connection with the Work.
BRITE 2022 CONFIDENTIAL
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14. NONSOLICITATION. Neither Party to this MSA shall, without the prior written consent of the other
Party, solicit, attempt to solicit, hire, or offer employment to any employee of the other Party, directly or indirectly,
for the Term of this MSA and for a period of twelve (12) months after the expiration of the last Statement of Work
entered into hereunder (the “Restriction Period”). The foregoing prohibition shall not apply to solicitations by means
of general advertisements or media of general circulation that are not specifically targeted at the other Party’s
employees, nor shall it apply to any employee applying for any such generally advertised or circulated position.
Customer recognizes that the services provided by Brite’s employees require special training and expertise developed
by Brite in recruiting and training its employees, and Brite shall be entitled to pursue any and all remedies available
at law or in equity in the event of a breach or threatened breach by Customer of the provisions of this Section 15,
including preliminary and permanent injunctions.
15. NOTICE. All notices and other communications under this MSA shall be in writing and addressed by
name and address to the Party intended as follows:
To Brite: Justin Smith, President & COO
Upstate Wholesale Supply, Inc. D/B/A Brite
7647 Main Street
Victor, NY 14564
Email:
To Customer:
Email:
or at such other address as a Party hereto may designate by written notice in accordance with this Section. Notice shall
be deemed duly given (i) when delivered in person; (ii) upon delivery of electronic mail to the intended recipient; or
(iii) upon delivery by registered or certified U.S. mail, return receipt requested, postage prepaid; or (iv) upon delivery
by nationally recognized overnight delivery service, fees and charges prepaid.
16. DISPUTE RESOLUTION AND ARBITRATION. In the event of a dispute between the Parties, Customer
and Brite agree to attempt a process of informal dispute resolution involving escalation within each Party’s
management organizations. If the Parties are unable to resolve disputes through informal means, the Parties agree to
resolve any dispute, controversy, or claim arising out of or relating to this MSA, or the breach, termination, or invalidity
thereof (whether in tort, contract, statute or otherwise), by binding arbitration by a single mutually agreed upon arbitrator
in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. If
the Parties are unable to agree on an arbitrator, the appointing authority shall be AAA. The arbitrator shall be
knowledgeable of the professional field at issue. The decision of the arbitrator shall be rendered in writing and may include
injunctive relief including specific performance. If a Party disagrees with the decision of the arbitrator, within fifteen (15)
days after such written decision is rendered, that the Party may request a rehearing before the same arbitrator. Such
rehearing shall be granted as a matter of right, but shall not last more than two (2) hours unless extended by the arbitrator.
The arbitrator may, in his discretion, modify his decision, or grant a new hearing. The location of any arbitration shall be
Rochester, New York. An award of the arbitrator may be entered in any court of competent jurisdiction. If a Party seeks
temporary injunctive relief, it may apply to a court of competent jurisdiction for such relief notwithstanding this arbitration
provision, but such injunctive relief shall be terminated by the arbitration order if not sooner terminated by the court
ordering such relief.
17. NO EXCLUSIVE AGREEMENT. Unless otherwise explicitly stated in an applicable Statement of Work,
nothing in this MSA or any Statement of Work shall be deemed to grant to Brite an exclusive right or privilege to
provide any Work to Customer or any Customer affiliate. Customer acknowledges that Brite provides a variety of
services to other parties, and agrees that nothing in this MSA or any Statement of Work shall be deemed or construed
to prevent Brite from (i) providing work or services to any other party, or (ii) developing for itself, or for others,
materials that may be or are competitive to those produced as a result of the Work provided under this MSA, subject
Parker Lathrop
Pitkin County Sheriff
BRITE 2022 CONFIDENTIAL
{8609802:3 } 7
to Brite’s confidentiality obligations with respect to Customer Information in accordance with the provisions of
Section 4 hereof.
18. PUBLICITY. Neither Party shall issue any press release or make any other public disclosure concerning
the parties' relationship, or the existence or terms and conditions of this MSA or any Statement of Work, without the
prior written consent of the other Party; provided, however, that the foregoing shall not prohibit any disclosure to the
extent required by applicable securities laws or the rules of any stock exchange where a Party's securities are traded.
Notwithstanding the foregoing, Customer agrees that as further consideration for the Work, Brite may use the
Customer’s name in Brite’s marketing and promotional materials (including listing the Customer as a customer of
Brite on the Brite website), provided that Brite restricts such usage to identification of the Customer as a customer of
Brite and makes no representation about the quality, quantity or type of work performed by Brite without the
Customer’s written consent.
19. INSURANCE. Brite agrees to carry during the Term of this MSA, at its sole expense, insurance policies as
specified in Exhibit A of this MSA. Prior to or contemporaneously with the execution of this MSA, Brite shall furnish
Customer certificates of the insurance required under this Section.
20. RELATIONSHIP OF THE PARTIES. Neither the making of this MSA nor the performance of provisions
of this MSA or any Work shall be construed to constitute either Party hereto as an agent, employee or legal
representative of the other Party for any purpose, nor shall this MSA be deemed to establish a joint venture or
partnership between the Parties. Neither Party shall have any right or authority to create any obligation, warranty,
representation or responsibility, express or implied, on behalf of the other Party, nor to bind the other Party in any
manner whatsoever. The relationship of Brite to Customer under this MSA shall be deemed to be that of an
independent contractor.
21. INVALID PROVISION. The invalidity or unenforceability of any term or provision of this MSA or the
nonapplication of any such term or provision to any person or circumstance shall not impair or affect the remainder
of this MSA, and the remaining terms and provisions hereto shall not be invalidated, but shall remain in full force and
effect and shall be construed as if such invalid unenforceable, or nonapplicable provisions were omitted.
22. WAIVER OR MODIFICATION. No waiver or modification of this MSA or of any covenant, condition
or limitation herein contained shall be valid unless in writing and duly executed by the Party to be charged therewith.
Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in any proceeding,
arbitration or litigation between the parties arising out of or affecting this MSA, or the rights or obligations of any
Party hereunder, unless such waiver or modification is in writing and duly executed as aforesaid. The provisions of
this paragraph may not be waived except as herein set forth.
23. SURVIVAL OF RIGHTS AND OBLIGATION. The provisions of Sections 4 (Confidentiality), 5
(Limitation of Liability), 6 (Warranty), 8 (Indemnification), 11 (Intellectual Property), 12 (Applicable Law), 13
(Termination), 14 (Nonsolicitation), 16 (Dispute Resolution and Arbitration) and 20 (Relationship of the Parties) shall
survive the termination or expiration of this MSA.
24. NO THIRD-PARTY BENEFICIARIES. Except for the Indemnitees who are express third party
beneficiaries of Section 8, this MSA is for the sole benefit of the Parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity
any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
25. COUNTERPARTS. This MSA (including any Statement of Work) may be executed in multiple original,
facsimile or electronic counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
BRITE 2022 CONFIDENTIAL
{8609802:3 } 8
26. ENTIRE AGREEMENT. This MSA constitutes the entire agreement of the Parties with respect to the
subject matter of this MSA and supersedes any and all prior negotiations, understanding and agreements, whether
written or oral, with respect hereto.
27. CUMULATIVE REMEDIES. Except as otherwise expressly set forth herein, all rights and remedies
provided in this MSA are cumulative and not exclusive, and the exercise by either party of any right or remedy does
not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity,
by statute, in any other agreement between the parties or otherwise.
28. INTERPRETATION. Section and paragraph headings used throughout this MSA are for reference and
convenience and in no way define, limit or describe the scope or intent of this MSA or affect its provisions.
IN WITNESS WHEREOF, the parties hereto have caused this MSA to be executed by their duly authorized
representatives as of the day and year first above written.
UPSTATE WHOLESALE SUPPLY, INC. [___________________]
D/B/A BRITE
By: By:
Print Name: Print Name:
Title: Title:
Pitkin County Sheriff
PCSO Chief Deputy of Operations
Parker LathropJustin Smith
President & COO
BRITE 2022 CONFIDENTIAL
{8609802:3 } 9
EXHIBIT A
Insurance Requirements
Commercial General Liability Insurance - Including Products and Completed Operations with coverage at least
equivalent to the following except standard industry exclusions are permitted.
Bodily Injury and Property Damage: $1,000,000 per occurrence
Personal Injury: $1,000,000
General Aggregate: $2,000,000
The policy shall include an Additional Insured Endorsement including Customer as an Additional Insured for liability
arising out of this MSA including ongoing operations, products liability and completed operations. This insurance
shall be primary and not seek contribution from any other insurance or self-insurance available to Customer or its
affiliates.
Automobile Liability Insurance - Including owned, leased and non-owned vehicles with coverage at least equivalent
to the following:
Bodily Injury and Property Damage: $1,000,000 per occurrence
This insurance shall be primary and not seek contribution from any other insurance or self-insurance available to
Customer or its affiliates.
Workers’ Compensation and Employers’ Liability -
Workers’ Compensation - Statutory
Employers’ Liability - $1,000,000 per person (In states where workers compensation is provided by
monopolistic insurance funds, Stop Gap Employers Liability must be provided.)
Crime Insurance – Including employee dishonesty coverage with an endorsement to provide third party
fidelity coverage.
Limit Each Occurrence: $1,000,000
Umbrella Liability – This policy shall provide an additional limit over Commercial General Liability
Insurance, Auto Liability Insurance and Employers’ Liability with coverage at least as broad as the
aforementioned underlying policies, including with respect to any additional insured status.
Limit: $3,000,000
Professional/Errors & Omissions Liability Insurance – This policy shall cover errors or omissions related to the
projects undertaken through this MSA including but not limited to claims for the loss or misuse of personal
information, infringement of copyright, trade dress or other intellectual property and damage to Customer’s network
or data. If written on a claims-made basis, this policy must remain in effect for thirty six (36) months after the
conclusion of the work described herein.
Annual Aggregate Limit: $3,000,000