HomeMy WebLinkAboutAG 12-168 - Innovative Data Solutions,, INC (IDS)DATE IN: I DATE OUT: I TO:
CITY OF FEDERAL WAY LAW DEPARTMENT
REQUEST FOR CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP
1.
ORIGINATING DEPT./DIV:
FEDERAL WAY POLICE DEPARTMENT
2. ORIGINATING STAFF PERSON: LYNETTE ALLEN
4. TYPE OF DOCUMENT REQUESTED (CHECK ONE)
X PROFESSIONAL SERVICE AGREEMENT
❑ MAINTENANCE/LABOR AGREEMENT
O PUBLIC WORKS CONTRACT
O SMALL PUBLIC WORKS CONTRACT
(LESS THAN $200,000)
O PURCHASE AGREEMENT)
(MATERIALS, SUPPLIES, EQUIPMENT)
O REAL ESTATE DOCUMENT
EXT: 6701 3. DATE REQ. BY: JUNE 21, 2012
O SECURITY DOCUMENT (E.G. AGREEMENT &
PERF/MAIN BOND; ASSIGNMENT OF FUNDS IN LIEU OF BOND)
O CONTRACTOR SELECTION DOCUMENT
(E.G., RFB, RFP, RFQ)
O CONTRACT AMENDMENT AG#:
O CDBG
O OTHER
5. PROJECT NAME: Hosted PowerDMS Program for CALEAAccreditation Process
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6. NAME OF CONTRACTOR:
ADDRESS: 1 of S • 6-6•,('\o., tAJ S ,Ec, 3 OQ TELEPHONE
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7. ATTACH ALL EXHIBITS AND CHECK BOXES 0 SCOPE OF SERVICES 0 ALL EXHIBITS REFERENCED IN DOCUMENT
O INSURANCE CERTIFICATE ❑ DOCUMENT S'U�THOR�I�Z s, IeGN Diol a n
8. TERM: COMMENCEMENT DATE: ANNUAL FEE / No ACTUAL START OR TERMINATION DATE COMPLETION DATE_
9. TOTAL COMPENSATION: $20,900 FOR FIRST THREE YEARS AND THEN ANNUAL FEES (INCLUDE EXPENSES & SALES TAX, IF A NY)
(IF CALCULATED ON HOURLY LABOR CHARGE -ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES)
REIMBURSABLE EXPENSE: 0 YES 0 NO IF YES, MAXIMUM DOLLAR AMOUNT: $
IS SALES TAX OWED 0 YES 0 NO IF YES, $ PAID BY: 0 CONTRACTOR 0 CITY
10. CONTRACT REVIEW INITIAL/DATE APPROVED INITIAL/DATE APPROVED
O PROJECT MANAGER
❑ DIRECTOR
O RISK MANAGEMENT
O LAW AUP -'1 ' L 2 cot. utiol„)
11. CONTRACT SIGNATURE ROUTING
❑ LAW DEPARTMENT
❑ GIT 240ER cU �v vhf Zvi
CITY CLERK
❑ SIGN COPY BACK TO ORGINATING DEPT.
❑ ASSIGNED AG# ! Z (t;9 (c.7)
❑ PURCHASING: PLEASE CHARGE TO:
INITIAL/DATE APPROVED
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10/09/02
END USER SOFTWARE LICENSE AGREEMENT
THIS END USER SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into
on this 22nd day of June 2012, by and between INNOVATIVE DATA SOLUTIONS, INC. ("IDS"), a
Florida corporation with its principal place of business at 200 East Robinson Street, Suite 525, Orlando,
Florida 32801-1925, and Federal Way Police Department, a Washington government entity with a
principal place of business at 33325 8th Ave. S., Federal Way, Washington 98003.
Background
IDS has developed PowerDMSTM Suite, which is a policy management software application (the
"Software"). Customer desires to acquire a non-exclusive license to use the PowerDMSTM Suite software
at its Business Location on the terms and conditions set forth in this Agreement.
In consideration of the parties' mutual promises contained in this Agreement, the parties,
intending to be legally bound, agree as follows:
Article 1 Definitions
1.1 "Business Location" means the Customer's facility or facilities.
1.2 "Confidential and Proprietary Information" means any and all IDS software, technology, and
related documentation, and other Intellectual Property, and including (a) the Software and
Documentation; (b) any business or technical information of IDS that IDS desires to protect against
unauthorized use or disclosure, including any information relating to IDS's business processes, operations,
product plans, designs, research, development, intellectual property or know-how; and (c) the terms of
this Agreement. Confidential Proprietary Information excludes any information that: (w) is or becomes
generally known to the public through no fault or breach of this Agreement by Customer; (x) is rightfully
known by Customer at the time of disclosure without an obligation of confidentiality; (y) is independently
developed by Customer without use of or access to the IDS's Confidential Proprietary Information; or (z)
Customer rightfully obtains from a third party without restriction on use or disclosure.
1.3 "Customer Contact" means the person designated by Customer as its representative to IDS for
dealing with issues relating to the Software and the terms of this Agreement.
1.4 "Customer's Contractor" means any third party which has been engaged by Customer to
provide services or equipment enabling the use of, or otherwise related to, Customer's use of the
Software.
1.5 "Customer's End Users" has the meaning set forth in Exhibit C.
1.6 "Documentation" means the standard end-user manual and online documentation for the
Software, as updated and revised from time to time.
1.7 "Exhibits" means the following exhibits which are incorporated as part of this Agreement:
Exhibit A - Term and Fee Schedule
Exhibit B - Maintenance and Support Agreement
Exhibit C - End User Agreement
1.8 "Intellectual Property" means all inventions, patents, works of authorship, information fixed in
any tangible medium of expression, moral rights, mask works, trademarks, trade names, trade dress, trade
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secrets, know- how, ideas, and all other subject matter protectable under patent, copyright, moral right,
mask work, trademarks, trade secret, or other laws, including all new or useful art, combinations,
discoveries, formulae, manufacturing techniques, technical developments, artwork, software,
programming, applets, scripts, and designs.
1.9 "Maintenance" means the tasks listed in Exhibit A.
1.10 In addition to the definitions above, other capitalized terms will have the definitions given them
in various sections of this Agreement.
Article 2 License
2.1 Grant of License. IDS hereby grants Customer a non-exclusive license to use the Software,
provided that (a) Customer may give access to the Software to users; and (b) Customer complies with the
restrictions set forth in Section 2.2 below.
2.2 Restrictions. Copies of the Software created or transferred pursuant to this Agreement are
licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself or
to any other Confidential Proprietary Information. Furthermore, Customer receives no rights to the
Software or any other Confidential Proprietary Information other than those specifically granted in this
Section 2. Without limiting the generality of the foregoing, Customer will not nor permit anyone else to:
(a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the
Software or any other Confidential Proprietary Information; (b) use the Software or any other
Confidential Proprietary Information for service bureau or time-sharing purposes or in any other way
allow third parties to exploit the Software or any other Confidential Proprietary Information; (c) reverse
engineer, decompile, disassemble, or otherwise attempt to derive any of the Software's source code; or (d)
remove any copyright, trademark, servicemark, or other proprietary notices of IDS or other third parties
relating to the Software or any other Confidential Proprietary Information.
2.3 [Intentionally Omitted].
Article 3 Customer's Cooperation
3.1 Customer's Cooperation. Customer will cooperate with IDS, and its employees and contractors,
in all ways reasonably necessary to enable IDS to perform its duties under this Agreement. Without
limiting the foregoing, Customer will: (a) provide IDS with timely, complete, and accurate information,
data, and documentation, where such information, data, or documentation is requested by IDS to perform
its duties; (b) provide Customer, and its employees and contractors, with access to the Business Location
all premises as reasonably required by IDS to perform its duties; and (c) fulfill any other requirements of
Customer set forth in this Agreement.
3.2 Dependence on Customer. The parties agree that Customer will bear the risk of any delays,
expense increases, or other adverse effects on IDS's ability to timely perform its duties to the extent
attributable to the failures, delays, acts, or omissions of Customer, Customer Contact, or any of
Customer's Contractors.
Article 4 Maintenance and Support
4.1 Maintenance and Support. IDS will provide maintenance and support to Customer, in accordance
with the fees set forth in Exhibit A, and the terms and conditions set forth in Exhibit B. All maintenance
and support will be provided in accordance with IDS's applicable maintenance and support policy then in
effect, and are subject to Customer's ongoing compliance with the terms of this Agreement. Without
limiting the generality of the foregoing, IDS shall have no obligation of any kind to provide maintenance
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or support for problems in the operation or performance of the Software caused by any of the following:
(a) modifications to the Software not made by IDS or a party expressly authorized by IDS; or (b)
Customer's use of the Software other than as authorized in this Agreement or as provided in the
Documentation. In the event that IDS does provide maintenance or support in response to a problem that
is determined, in IDS's reasonable discretion, to have been caused by any of these factors, IDS will have
the right to invoice Customer for such maintenance and support.
Article 5 Payment
5.1 Fees. Customer will pay to IDS the fees specified in Exhibit A. Except as otherwise provided in
Exhibit A, Customer shall pay all invoiced amounts no later than thirty (30) days after Customer's receipt
of an invoice. All payments shall be made in U.S. currency. All past due amounts will incur interest at a
rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is
less.
5.2 Taxes. All fees payable under this Agreement are net amounts and are payable in full, without
deductions for any sales, use, excise, value-added, withholding, or similar taxes or duties that may be
applicable. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind
associated with this Agreement, except for taxes based on IDS's net income. In the event that IDS is
required to collect any tax for which IDS is responsible, Customer will pay such tax directly to IDS. If
Customer pays any withholding taxes that are required to be paid under applicable law, Customer will
furnish IDS with written documentation of all such payments, including receipts.
Article 6 Use of Confidential Proprietary Information
6.1 Use of Confidential Proprietary Information. Customer will not use Confidential Proprietary
Information except as expressly permitted by this Agreement, and will not disclose Confidential
Proprietary Information to any third party except to employees and consultants as is reasonably required
in connection with the exercise of its rights and obligations under this Agreement (and only subject to
binding use and disclosure restrictions at least as protective as those set forth in this Agreement executed
in writing by such employees and consultants). However, Customer may disclose Confidential
Proprietary Information: (a) pursuant to the order or requirement of a court, administrative agency, or
other governmental body, provided that Customer gives reasonable notice to IDS to contest such order or
requirement; and (b) otherwise to the extent expressly authorized in writing by IDS in advance.
Article 7 Representations; Disclaimer of Warranties and Limitation of Liability
7.1 Representations. IDS represents that it is the owner of (or has a valid license thereto) the
Software and of each and every component of the Software.
7.2 No Warranties. IDS provides this license to use the Software strictly on an "AS IS" and "AS
AVAILABLE" basis without any express guarantee or assurance of quality, reliability, or functionality.
Except as expressly set forth in this Agreement, Customer accepts all risk, including all risk with respect
to suitability, use of the Software. IDS does not warrant that the Software will perform without error or
that it will run without immaterial interruption. IDS provides no warranty regarding, and will have no
responsibility for, any claim arising out of: (i) a modification of the Software made by anyone other than
Provider, unless Provider approves such modification in writing; or (ii) use of the Software in
combination with any operating system not authorized in the Documentation or with hardware or software
specifically cautioned against in the Documentation.
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IDS DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, CONDITIONS,
AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, AND IDS'S OTHER
PRODUCTS AND SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7.3 No Liability. IDS will not be liable for any damage that Customer or any Customer's End Users
may suffer arising out of use, or inability to use, the Software. Except for intentional acts by IDS
personnel, IDS will not be liable for unauthorized access to or alteration, theft or destruction of
Customer's, Customer's End Users', or any other third party's data files, programs, procedures, or
information through accident, fraudulent means or devices, or any other method, regardless of whether
such damage occurs as a result of IDS's negligence. IDS shall not be liable for indirect, consequential,
incidental, or special damages even if advised of the possibility in advance. IDS shall not be liable for any
lost property or data of Customer, Customer's End Users, or any other third party.
IN NO EVENT WILL IDS'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE AGGREGATE OF FEES PAYABLE TO IDS PURSUANT TO THIS AGREEMENT
(INCLUDING FEES BOTH PAID AND DUE) AT THE TIME OF THE EVENT GIVING RISE TO
THE LIABILITY; AND IN NO EVENT WILL IDS BE LIABLE FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY
THIS SECTION 7.3 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR
OTHERWISE; (C) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF
THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
(D) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
7.4 Customer Responsibility. Customer is solely responsible for ensuring that Customer, and
Customer's End Users, comply with all applicable local laws relating to the use of the Software, and
compliance with the terms of this Agreement. Customer further agrees to comply with all other
applicable laws, including federal and international laws, statutes, rules and regulations relating to
Customer's use of the Software and the terms of this Agreement, and agrees to ensure that Customer's
End Users do the same. In addition, Customer is responsible for observing all applicable tariffs and trade
laws, and agrees to ensure that all Customer's End Users do the same.
Article 8 Transmission of Data
8.1 Customer consents to the transmission of its data and communications to and from IDS through
the use of electronic mail via the Internet.
Article 9 Nonexclusivity
9.1 IDS may license the Software and any other software, products, or services to other parties, and
allow other parties to market and promote the Software and any other software, services, or products as
IDS deems advisable in its sole discretion.
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Article 10 Export/Import Laws
10.1 Customer agrees to comply with all export and import laws, regulations and restrictions of the
United States and its agencies or authorities, and shall not export, re-export or permit downloading of the
Software or any other of IDS's products in violation thereof, or without all required approvals, licenses,
and exemptions. Customer may not export, re-export or permit downloading of the Software or any other
IDS products to any person, end-user or entity in, or a national or resident of any country subject to
United States export restrictions or embargoes.
Article 11 Recruitment
11.1 During the Term of this Agreement and for a period of two (2) years thereafter, Customer agrees
not to directly or indirectly call upon, solicit, recruit, or hire any person who is or was an employee or
contractor of IDS for the purpose of having such person work as an employee or contractor for Customer.
Customer agrees that this provision is reasonable in light of IDS's responsibilities in this Agreement and
the concentration of expertise by IDS in a core group of individuals.
Article 12 Term and Termination
12.1 Term. This Agreement will have such renewals as specified in Exhibit A.
12.2 Termination.
a. Either party may terminate this Agreement at any time in the event that the other party
breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after
receiving written notice thereof or, if the breach cannot reasonably be cured during such period, fails to
begin diligent efforts to cure that breach during such period and continue with such efforts until the
breach is cured.
b. If Customer enters into liquidation, whether compulsory or voluntary (except for the
purposes of bona fide reconstruction or amalgamation with the prior written approval IDS), or compounds
with or makes any arrangement with its creditors otherwise than in the ordinary course of business or
makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative
receiver, or administrator appointed over the whole or substantially the whole of its business or assets, or
if it ceases or threatens to cease to carry on its business, IDS may terminate this Agreement immediately.
c. IDS may terminate this Agreement at any time without prior notice in order to: (i)
comply with any law, regulation, court order, or other governmental request or order which requires
immediate action; or (ii) otherwise protect IDS from imminent legal liability on the advice of its counsel.
12.3 Effect of Termination. Upon termination of this Agreement for any reason, all outstanding
amounts due IDS by Customer will immediately become due and payable. In addition, except for the
provisions set forth in Section 13.5, all rights and obligations of the parties hereunder will automatically
cease. Furthermore, upon such termination, the licenses granted to Customer in this Agreement will
terminate and Customer will cease all use of the Software and delete all copies in its possession or
control. Customer shall return to IDS all copies of the Documentation and any other Confidential
Proprietary Information in Customer's possession or control and will provide IDS with an officer's written
certification, certifying that the requirements of this Section 13.3 have been complied with.
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12.4 Non -Exclusive Remedy. Except as otherwise set forth in this Agreement, the exercise by either
party of any of its remedies under this Agreement will be without prejudice to its other remedies under
this Agreement or otherwise.
12.5 Survival. The following provisions of this Agreement will survive any termination of this
Agreement: Sections 1, 6, 8, 12, 13, and 14.
Article 13 General Provisions
13.1 Notices. All notices, requests, demands, claims, and other communications hereunder shall be in
writing and shall be delivered by certified or registered mail (first class postage pre -paid), guaranteed
overnight delivery, electronic mail, or facsimile transmission if such transmission is confirmed. The
street addresses of the parties set forth in the introductory paragraph of this Agreement or at such
electronic mail addresses or facsimile numbers as the parties give each other from time to time. Notice
shall be deemed given on the date sent if sent by electronic mail or facsimile transmission and on the date
delivered (or the date of refusal of delivery) if sent by overnight delivery or certified or registered mail.
13.2 Absence of Third Party Beneficiary Rights. No provision of this Agreement is intended or shall
be construed to provide or create any third party beneficiary right or any other right of any kind in any
third party, and all terms and provisions hereof shall be personal among the parties to this Agreement.
13.3 Waiver. No failure to exercise, and no delay in exercising, any right, power or privilege under
this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude the exercise of any other right, power or privilege. No waiver of any breach
of any provision shall be deemed to be a waiver of any preceding or succeeding breach of the same or any
other provision, nor shall any waiver be implied from any course of dealing between the parties. No
extension of time for performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any other obligations or any
other acts. The rights and remedies of the parties under this Agreement are in addition to all other rights
and remedies, at law or equity, which they may have against each other.
13.4 Binding Effect; Assignment. The rights and obligations of this Agreement may be assigned,
delegated, or subcontracted by IDS without the prior consent of Customer. Customer may not assign,
delegate or subcontract this Agreement or any rights or obligations under this Agreement.
13.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one and the same instrument. A facsimile
signature of any party shall be considered to have the same binding legal effect as an original signature.
13.6 Interpretation. The terms that are defined in this Agreement may be used in the singular or the
plural, as the context requires. When a reference is made in this Agreement to an article, section,
paragraph, clause, schedule or exhibit, such reference shall be deemed to be to this Agreement unless
otherwise indicated. The headings contained herein and on the schedules are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement or the schedules.
Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
13.7 Construction. In the event of an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no presumptions or burdens of proof
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shall arise favoring any party by virtue of the authorship of any of the provisions of this Agreement. Any
reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is
in breach of the first representation, warranty, or covenant. The mere listing (or inclusion of copy) of a
document or other item shall not be deemed adequate to disclose an exception to a representation or
warranty made in this Agreement (unless the representation or warranty relates solely to the existence of
the document or other items itself).
13.8 Governing Law; Choice of Forum; No Jury Trial. This Agreement has been entered into in the
State of Florida, and validity, interpretation, enforcement, and legal effect of this Agreement shall be
governed by the laws of the State of Florida, as it applies to a contract executed, delivered, and performed
solely in such state with respect to the determination of any claim, dispute, or disagreement that arises out
of the interpretation, performance, or breach of this Agreement. Any such claim, dispute, or disagreement
shall be heard by a court of competent jurisdiction in Orange County, Florida, and all parties consent to
personal jurisdiction in Orange County, Florida for any such claim, dispute, or disagreement, or any
attempt to recover losses, relating to this Agreement.
WAIVER OF JURY TRIAL: THE PARTIES ACKNOWLEDGE THAT ALL CLAIMS,
DISPUTES, RIGHTS, OBLIGATIONS, OR COMPENSATION ISSUES WHICH MAY ARISE
UNDER THIS AGREEMENT SHOULD BE ADJUDICATED BY A COURT, WITHOUT A
JURY. THEREFORE, THE PARTIES WAIVE ANY RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY REGARDING THIS AGREEMENT. NEITHER PARTY NOR ANY HEIR,
SUCCESSOR, OR ASSIGNEE SHALL SEEK A TRIAL BY JURY IN ANY LAWSUIT OR
PROCEEDING (WHETHER AT LAW OR IN EQUITY, WHETHER DIRECT OR
COLLATERAL, WHETHER IN CONTRACT OR IN TORT) ARISING OUT OF OR
OTHERWISE INVOLVING THIS AGREEMENT.
13.9 Severability. If any word, phrase, sentence, clause, section, subsection or provision of this
Agreement as applied to any party or to any circumstance is adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other circumstance or the validity or enforceability of
any other word, phrase, sentence, clause, section, subsection or provision of this Agreement. If any
provision of this Agreement, or any part thereof, is held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words
or phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.
13.10 Independent Contractors. The parties and their respective personnel, are and shall be independent
contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or
create any obligation, express or implied, on behalf of the other party.
13.11 Attorney's Fees. In the event that any dispute between IDS and Customer should result in
litigation or arbitration, the prevailing party to such dispute shall be entitled to recover from the other
party all reasonable fees, costs, and expenses of enforcing any right of the prevailing party, including
reasonable attorney's fees, expert witness fees, and expenses. Attorney's fees and costs include costs for
such items for any appeals.
13.12 Integration and Modification. This Agreement constitutes the complete and entire agreement of
the parties hereto and supersedes all prior representations, proposals, discussion, whether oral or in
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writing. Except as otherwise expressly set forth in this Agreement, this Agreement may be modified
solely through a written document executed by the parties to this Agreement, with the same formalities as
were used in the execution of this Agreement.
13.13 Force Majeure. Except for the payment of money as required of Customer by this Agreement,
neither party shall be liable for any failure or delay in performance under this Agreement which is due to
any event beyond the reasonable control of such party, including fire, explosion, unavailability of utilities
or raw materials, Internet delays and failures, telecommunications failures, unavailability of components,
labor difficulties, war, riot, act of God, export control regulations, laws, judgments or government
instructions.
Executed by the parties as of the day and year set forth above.
INNOVATIVE DATA SOLUTIONS, INC. FEDERAL WAY POLICE DEPARTMENT
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(TP621410;1)
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EXHIBIT A — TERM AND FEE SCHEDULE
1. Term. The term of this Agreement will commence on June 22"d, 2012 (the "Effective Date") and
shall continue in force for three (3) years, unless terminated prior to that date as provided in Section
13.2. This Agreement shall be automatically renewed for successive one (1) year terms unless either
party, in its discretion, notifies the other party, in writing, to the contrary within at least thirty (30) days
prior to the expiration of the current term. The initial term and any renewal terms shall be referred to
herein as the "term" or "Term." Notwithstanding the above, this Agreement shall automatically terminate
if for any reason IDS ceases to have the rights to license the Software.
2. [Intentionally Omitted]
3. [Intentionally Omitted]
4. Maintenance and Support Fees. Customer shall pay maintenance and support fees as
follows:
K STAPT remote d fax hours w'Ctfr 30
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Total Price S20,000 00
5. Subject to Annual Appropriation. Any financial obligations of the Customer not to be
performed during the current fiscal year are subject to annual appropriation, and thus any
obligations of the Customer hereunder shall extend only to monies currently appropriated and
shall not constitute a mandatory charge, requirement or liability in any ensuing fiscal conflicting
provisions in the Agreement establishing any monetary obligation beyond the current fiscal year.
{TP621410;1}
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EXHIBIT B - MAINTENANCE AND SUPPORT
1. Overview. During the term of this Agreement, IDS agrees to use commercially reasonable
efforts to make sure that the Software performs in accordance with IDS's Documentation.
IDS will maintain the Software: during each renewal term, unless Customer cancels Maintenance at least
30 days before the start of any renewal term. After termination of Maintenance, Customer may renew
Maintenance at any time subject to the payment of any applicable renewal fee.
2. Software Maintenance. The following terms and conditions describe the software maintenance
and support services to be provided by IDS to Customer.
a. IDS will work directly with Customer Contact to support Customer as set forth in this
Exhibit C.
b. IDS will notify Customer of known problems with the Software and the steps, if any,
then being taken to resolve such problems.
c. IDS shall use commercially reasonable efforts to promptly correct reproducible
significant programming errors in the Software that Customer or Customer's End Users
have identified, classified, and reported to IDS.
d. IDS shall not be responsible for providing maintenance and support services for items of
software and hardware that it does not provide under this Agreement.
3. Resolution Process. When a new problem with the Software is identified by Customer or by a
Customer's End User, and the problem cannot be resolved through Customer's reasonable efforts, the
problem must be verified, reproduced, and documented by Customer Contact who will contact IDS via
telephone or email, and will provide IDS with a record of all pertinent configuration details, failure
information, symptoms, and attempted remedial efforts. IDS will open a case and research the issue. The
case may be resolved through documentation or additional instruction on Software usability. If it is
determined that the case is caused by a programmatic error, the Customer Contact will work with IDS to
determine the best viable working solution until the case can be resolved on a more permanent basis via a
programmatic fix or a viable circumvention.
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EXHIBIT C - END USER AGREEMENT
The following terms and conditions govern Customer's use of the Software ("End User
Agreement") by Customer. IDS may amend the End User Agreement from time to time by providing
Customer with notice of such an amendment, by electronic mail or otherwise.
1. General. The Software functions as a forum for authorized users to post and review information
and documents and communicate regarding policy management issues.
2. End Users.
a. Defined. End Users shall include both Customer, and certain employees, agents,
affiliates of Customer, and clients of Customer, to which Customer grants use of the
Software in accordance with this Agreement ("Customer's End Users"). Customer
agrees that Customer must itself determine whether Customer can share access to and/or
use of information posted via the Software with any Customer 's End User. Upon
execution of this Agreement, Customer shall provide IDS with documentation that
generally identifies those individuals that Customer intends to be Customer's End Users,
which shall be supplemented with any additional Customer's End User.
b. Responsibility for Customer's End Users. Customer shall be solely and entirely
responsible for the acts or omissions of all Customer's End Users, and will ensure that all
Customer's End Users comply with all of the terms and conditions of this Agreement.
IDS does not endorse the quality or accuracy of the information provided by any of the
Customer's End Users. IDS is not liable or responsible for any Customer's End User's
postings or communications, other acts, or omissions, including the quality or accuracy of
any information posted via the Software. In the event of any dispute between Customer
and a Customer's End User, Customer agrees to release and hold harmless IDS, its
directors, shareholders, officers, agents, and employees from any claims and damages of
every nature (including actual, special, incidental and consequential damages), known
and unknown, disclosed and undisclosed, arising out of or in any way connected with
such dispute.
3. Confidentiality. Customer and Customer's End Users agree to not disclose any Confidential
Proprietary Information of IDS, including a user name or password, even within Customer's own
organization, except on a need -to -know basis, and agrees to ensure that all other End Users do the same.
4. Passwords and Security. Customer shall not allow any third party (other than a Customer's End
User) to access the Software using a user name and password of Customer. Customer is solely and
entirely responsible for any use of the Software via a user name and password of Customer or a
Customer's End User. Immediately upon discovery of unauthorized use of a user name and password of
Customer or a Customer's End User, Customer will promptly take appropriate steps that a new password
may be issued. Customer will be liable for any unauthorized use of the Software. Customer agrees to not
invade a Customer's End User's privacy in violation of any law or regulation.
5. Information Posted via the Software.
a. IDS will not review the substance of postings via the Software. As such, Customer must
be careful in dealing with Customer's End Users to recognize the possibility that Customer's End Users'
postings and other information may be, despite the prohibitions set forth in this Agreement, harmful,
inaccurate, or deceptive.
{TP621410;1)
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b. Customer is solely responsible for information that it posts via the Software. IDS does
not endorse or attest to the accuracy of any information posted via the Software by End Users or third
parties.
d. Posting Guidelines. Customer shall establish and enforce appropriate posting guidelines
with respect to posts made via the Software.
6. Customer Representations. Customer represents, warrants and agrees that it will not use, or
permit any Customer's End User to use, the Software in any manner that is in violation of any applicable
law or regulation or applicable professional or ethical standard or policy relating to the Customer and its
business.
7. No Resale of Access to the Software. Customer's license to use the Software is limited solely to
Customer as provided in this Agreement. Customer may not reproduce, duplicate, copy, sell or resell
access to or use of the Software, without the advanced, express written consent of IDS.
8. Intellectual Property Matters. All third party content posted via the Software is the property of
the respective copyright owners and may not be copied or distributed in any way for commercial
purposes. To enable IDS to use intellectual property that may be provided by Customer to IDS in
connection with the use of the Software without violating any rights Customer has in the intellectual
property, Customer grants to IDS a non-exclusive, worldwide, perpetual, revocable, royalty -free right to
exercise the rights Customer has in any such intellectual property provided to IDS.
9. Data. If Customer decides to discontinue services at any time, Customer would be able to
retrieve all their data. Customer will be entitled to all of their information that was input into the
system and allowed to retrieve all information and data within 90 days after the agreements
termination.
{TP621410;1 }
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