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AG 16-055 - MobileGuard-SMARSHRETURN TO: Terry Smith EXT: 2550 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT./DIV: INFORMATION TECHNOLOGY 2. ORIGINATING STAFF PERSON: THOMAS FICHTNER EXT: 2547 3. DATE REQ. BY: ASAP 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ® PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G_ BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION A CONTRACT AMENDMENT (AG#): 16-055B ❑ INTERLOCAL ❑ OTHER 5. PROJECT NAME: NETGUARD TEXT MESSAGING ARCHIVING 6. NAME OF CONTRACTOR: SMARSH ADDRESS: 851 SW 6TH AVENUE, SUITE 800, PORTLAND, OR, 97204 TELEPHONE (503) 946-3275 E-MAIL: SHELBY.PHELAN@SMARSH.COM FAX: SIGNATURENAME: SHELBY PHELAN TITLE SALES EXECUTIVE 7. EXHIBITS AND ATTACHMENTS: A SCOPE, WORK OR SERVICES O COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS H. 'PERM: COMMENCEMENT DATE: 03/01/2024 COMPLETION DATE: PERPETUAL/ RENEWAL ANNUALLY 9. TOTAL COMPENSATION $ additional 16,857.85 (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE -ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ENO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED 10YES ®NO IF YES, $ 1,546.45 PAID BY: ❑ CONTRACTOR A CITY RETAINAGE: RETAINAGE AMOUNT: ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED A PURCHASING: PLEASE CHARGE TO: 502-1100-046-521-10-414 10. DOCUMENT/CONTRACT REVIEW INITIAL/DATE REVIEWED INITIAL/DATE APPROVED ❑ PROJECT MANAGER * DIRECTOR TF - 1/3/24 ❑ RISK MANAGEMENT (IF APPLICABLE) ® LAW JRC 1/4/2024 1 l . COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR l MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / DATE SIGNED ❑ LAW DEPARTMENT 9 SIGNATORY (MAYOR OR DIRECTOR) r 'L(R - ❑ CITY CLERK 2, ❑ ASSIGNED AG# AG# w❑ All COMMENTS: 2/2017 ,i smar rsh° Order Form (#Q-52281)(Service Account Number: 36717 ) Renewal - City of Federal Way, WA Account Rep Shelby Phelan Customer City of Federal Way, WA Email shelby.phelan@smarsh.com Service Address 33325 8th Ave S City Hall Prepared on 27-Nov-2023 Federal Way, Washington 98003 Valid until 29-Feb-2024 Billing Contact Thomas Fichtner Contact Phone (253)835-2547 Start Date 1-Mar-2024 Contact Email thomas.fichtner@cityoffederalway.com Renewal Date 1-Mar-2025 Technical Contact Thomas Fichtner Billing Frequency Annual Order Type Renewal Minimum Minimum Services Unit Price Quantity Commitment Smarsh Support Professional Support- Basic MobileGuard MT/ST Verizon - MG Cloud MT $ 78.52 195 $ 15,311.40 Annual Recurring Service Fees Subtotal $ 15,311.40 One -Time Fees Subtotal $ 0.00 Notes US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com o smarsho Terms & Conditions On a date following the execution of this Order Form, Smarsh will provide Client with a license key for the Software or with login credentials to the applicable Service ("Activation Date"). Service Descriptions are available at Vww.smarsh.com/legal. the Smarsh Service Agreement available at www.smarsh.com/legal/ServiceAgreement The Services purchased by Client are also subject to the Information Security Addendum available at https://www.smarsh.com/legal/infoSec and the following Service Specific Terms: • Mobile Channels Service Specific Terms available at https://www.smarsh.com/legal/SSTMobileChannels; The Smarsh Service Agreement — General Terms, the Information Security Addendum, the Service Specific Terms, and this Order Form are, collectively, the "Agreement." The Initial Term of the Services shall begin on the date this Order Form is executed and continue for the Subscription Term specified above, unless Client is adding the above Services to an existing Service account, in which case, the above Services will sync to and co -terminate with Client's existing subscription Term. The Services will be subject to renewals as specified in the Agreement. For AT&T Mobility subscribers, your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available at www.smarsh.com/ieeaILATT as they apply to AT&T messages that are archived by Smarsh. "Archive Fees" are the Fees charged for access to the Connected Archive (i.e., Professional Archive or Enterprise Archive). "Capture & Archive Fees" are the Fees that are charged for capture and archive of a bundle of Connections within the Professional Archive. "Capture Fees" are the per -Connection Fees that are charged for the capture of Connections by Connected Capture (i.e., Cloud Capture or Capture Server). "Premium Adj. Fees" are the additional Fees that are charged for capture of Connections from premium Channels. "Set-up Fees" are the one-time Fees that are charged to implement a Service. "Professional Services Fees" are the Fees charged for hourly, monthly, or flat rate professional services. The Platform Fees, the Capture & Archive Fees, the Capture Fees, and the Premium Adj. Fees, as applicable, are invoiced on an annual, up -front basis or a monthly basis in arrears, as specified on page 1 of this Order Form. Client agrees that the Recurring Subtotal above is Client's minimum commitment during each year or month, as applicable, of the Term. Smarsh will invoice Client for any usage over the minimum quantities at the applicable rate indicated in this Order Form. Third Party API Usage : In the event that any Third -Party Service charges any API usage fees, service fees, or pass through costs to Smarsh that are (i) in connection with the Client's use of the Services set forth in this Order Form and such Third Party Service, and (ii) Smarsh can reasonably demonstrate that such costs are directly allocated to the Client, Smarsh reserves the right to pass those costs along to the Client ("Third Party Fees"). Client agrees to pay all such Third -Party Fees when Smarsh invoices the Client for such fees, which will include a breakdown and description of each such cost. If not priced above, data import, conversion (if applicable), and storage Fees for Client's historical data and storage Fees for data from Connected Capture or other external capture mechanisms ingested into the Professional Archive are as follows: Data Imports - One-time $10/GB Import Data Conversion fees $3/GB Data Storage —Annual $2.50/GB Information about Smarsh data privacy compliance is available at www.smarsh.com/lep-al. The following entities are fully owned subsidiaries of Smarsh: Digital Reasoning, Entreda, Privva, Actiance, MobileGuard US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com .i smarshe EXHIBIT A Amendment to the Smarsh Service Agreement — General Terms This first amendment ("Amendment") to the Smarsh Service Agreement - General Terms amends the Agreement between Smarsh Inc. and City of Federal Way, WA. This Amendment is effective on the date the Client signs the Order Form, to which this Amendment is attached as Exhibit A. The parties agree: 1) Replace Section 4.3 in its entirety, as follows: As between Client and Smarsh, Client is solely responsible for the content of Client Data. Client represents and warrants that (a) Client Data will not (i) infringe any third party right, including third party rights in patent, trademark, copyright, or trade secret, or (ii) constitute a breach of any other right of a third party, including any right that may exist under contract or tort theories; (b) Client will comply with all applicable local, state, national, or foreign laws, rules, regulations, or treaties in connection with Client's use of the Services, including those related to data privacy, data protection, communications, SPAM, or the transmission, recording, or storage of technical data, personal data, or sensitive information; and (c) Client will comply with the Acceptable Use Policy available at www.srnarsh.com/iaggIL&UP. Smarsh may update the Acceptable Use Policy from time to time. 2) Replace Section 6.1 in its entirety, as follows: Term. The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or, if no term is specified, 12 months ("Initial Term"). The Initial Term may be renewed by Client for additional, successive 12- month terms (each a "Renewal Term") upon the execution of a Renewal Order Form. The Initial Term plus any Renewal Term are, collectively, the "Term." Any Order Form executed after the Effective Date will co -terminate with Client's then -current Term. 3) Replace Section 6.2 in its entirety, as follows: Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and such breach remains uncured for a period of 30 days following the non -breaching party's written notice thereof. Smarsh may suspend Client's access to the Services in the event Client fails to pay undisputed Fees within 60 days after the due date, and Smarsh will not be liable for any damages resulting from such suspension. 4) Replace Section 9 in its entirety, as follows: Taxes. All Fees payable by Client under this Agreement are exclusive of taxes and similar assessments. Smarsh acknowledges that Client is tax-exempt. 5) Replace Section 10.2 in its entirety, as follows: Obligations with Respect to Confidential Information. Each party agrees: (a) that it will not disclose to any third party, or use for the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted by this Agreement; and (b) that it will use at least reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control but no less than the measures it uses to protect its own confidential information. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement; (ii) to the parties' agents, representatives, subcontractors or service providers who have a need to know such information provided that such party shall be under obligations of confidentiality at least as restrictive as those contained in US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com smarshe this Agreement; or (iii) pursuant to a Washington public records request, provided that the Client gives notice to Smarsh in a reasonable amount of time to allow Smarsh the opportunity to seek a protective order preventing such disclosure. Each party will promptly notify the other party in writing upon becoming aware of any unauthorized use or disclosure of the other party's Confidential Information. 6) Replace Section 13.1 in its entirety, as follows: Client Indemnification. To the extent permitted by Washington law, and without in any manner waiving its rights to sovereign immunity or increasing the limits of liability thereunder, Client will defend, indemnify and hold harmless Smarsh, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including fines, penalties, and reasonable attorneys' fees), arising from or related to the content of Client Data and Client's breach of the Service Specific Terms or Sections 4.2, 4.3, 4.4, 4.5, or 15.1 of this Agreement. Smarsh will (a) provide Client with prompt written notice upon becoming aware of any such claim; except that Client will not be relieved of its obligation for indemnification if Smarsh fails to provide such notice unless Client is actually prejudiced in defending a claim due to Smarsh's failure to provide notice in accordance with this Section 13.1(a); (b) allow Client sole and exclusive control over the defense and settlement of any such claim; and (c) if requested by Client, and at Client's expense, reasonably cooperate with the defense of such claim 7) Replace Section 15.4 in its entirety, as follows: Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in SBQQ_QUOTE_COUNTY _GOVERNING_iAW, in the State of Washington, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. 8) Replace Section 15.9 in its entirety, as follows: Entire Agreement; Electronic Signatures. This Agreement is the entire agreement between the parties with respect to its subject matter, and supersedes any prior or contemporaneous agreements, negotiations, and communications, whether written or oral, regarding such subject matter. Smarsh expressly rejects all terms contained in Client's purchase order documents, or in electronic communications between the parties, and such terms form no part of this Agreement. The parties agree that electronic signatures, whether digital or encrypted, give rise to a valid and enforceable agreement. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. 9) Delete Section 16, concerning alternative jurisdiction, in its entirety. US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com .� smarshe Purchase Order Information Client to Complete: Is a Purchase Order (PO) required for the purchase of the Services on this Order Form? [ j No [ j Yes —Please complete below PO Number: PO Amount: Upon signature by Client and submission to Smarsh, this Order Form shall become legally binding unless Smarsh rejects this Order Form for any of the following reasons: (i) changes have been made to this Order Form (other than completion of the purchase order information and the signature block); or (ii) the requested purchase order information or signature is incomplete; or (iii) the signatory does not have authority to bind Client to this Order Form. Client authori s� ature By: Name: �dt1r1�5 ` f GVL�N Date: ([ 2J Title: �IIZP�fii�l2 0 US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com Acceptable Use Policy September 19, 2019 This Acceptable Use Policy ("AUP") describes the proper use of the Services and Groups available through Smarsh Central. This AUP is incorporated by reference into the Agreement. Smarsh may suspend or terminate Client's use of the Services, any User's access to Groups on Smarsh Central, or the Agreement, if Client or any of Clients Users or Representatives violate this AUP. As between Client and Smarsh, Client is solely responsible for the data, content, messages, or other information that Client transmits, archives, distributes, displays, uploads or downloads through its use of the Services. Prohibited Activities Client shall not use the Services to: (a) commit a crime, violate any rights of a person or entity (including intellectual property rights), or violate any local, state, national, or international law, rule or regulation, as applicable. (b) impersonate a person or entity orto otherwise misrepresent any affiliation with a person or entity; (c) commit fraud or make fraudulent offers or advertisements (i.e., make money fast schemes, chain letters, pyramid schemes); (d) transmit harmful or potentially harmful code, including viruses, Trojan horses, worms, time bombs or any other computer programming routines that could damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information; (e) transmit bank, credit card or debit card numbers or other card numbers, or other financial account information such as cardholder name, expiration date, PIN or PIN blocks, service code, or track data from a magnetic strip or chip. (f) create a false identity or forged email address or header, or phone number, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message or phone call; (g) circumvent another service offered by Smarsh, such as subscribing to email archiving for the purpose of archiving email marketing; (h) harvest data; or (i) act in a way that will subject Smarsh to any third -party liability. Client shall not (a) reverse engineer any Service; (b) attempt to bypass or break any security mechanism on any of the Services; or, (c) use the Services in a manner that poses a security or service risk to Smarsh or other users. Interference with Services is Prohibited Client shall not engage in, or attempt to engage in: (a) unauthorized access to or use of the Services, data, or the networks or systems, including an attempt to probe, scan or overload a Smarsh system or the Services, or to breach security or authentication measures without express authorization; (b) unauthorized monitoring of code, data, or traffic on a system without express authorization; (c) deliberate attempts to overload a system and broadcast attacks; (d) an action that imposes an unreasonable or disproportionately large load on Smarsh's infrastructure; (e) performance of a program/script/command or sending messages of any kind that are designed to interfere with a user's terminal session, by any means, including locally or by the Internet; (f) the use of manual or electronic means to avoid any use limitations placed on the Services, such as timing out; or (g) any other activity that could be reasonably interpreted as unauthorized access to or interference with the Services. Laws Specific to Communications Clients shall comply with all laws that apply to communications, including wiretapping laws, the Telephone Consumer Protection Act, the Do -Not -Call Implementation Act, CAN-SPAM Act of 2003 and any other laws or regulations applicable to communications, including any third party policies such as the applicable guidelines published bythe Cellular Telecommunications Industry Association, the Mobile Marketing Association. If Client uses the Services in connection with any bulk and commercial email practices Client shall, in accordance with applicable law: (a) obtain the verifiable consent of e-mail recipients via affirmative means; (b) obtain necessary consents in accordance with applicable law; (c) retain evidence of consents in a form that may be produced on request; (d) allow a recipient to revoke consent; (e) post an email address for complaints in a conspicuous place; (f) have a privacy policy posted for each domain associated with the mailing; (g) have the means to track anonymous complaints; (h) not obscure the source of the Client e-mail in any manner; and, (i) not attempt to send any message to an email address after such number of rejections as is specified by law. Updates Smarsh may revise and update this AUP from time to time. Current Version of AUP: Version 5, Effective September 19, 2019. RETURN TO: TERRY SMITH EXT: 2550 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT./DIV: INFOMRATION TECHNOLOGY 2. ORIGINATING STAFF PERSON: THOMAS FICHTNER EXT: 2547 3. DATE REQ. BY: ASAP 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION * CONTRACT AMENDMENT (AG#): 16-055A ❑ INTERLOCAL ❑ OTHER S. PROJECT NAME: NETGUARD TEXT MESSAGING ARCHIVING 6. NAME OF CONTRACTOR: SMARSH ADDRESS: 851 SW 6TH AVENUE, SUITE 800, PORTLAND, OR, 97204 'TELEPHONE 1-503-946-3275 E-MAIL: shelby.phelan@smarsh.com FAX: SIGNATURE NAME: SHELBY PHELAN TITLE SALES EXECUTIVE 7. EXHIBITS AND ATTACHMENTS: 8 SCOPE, WORK OR SERVICES IN COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS 8. TERM: COMMENCEMENT DATE: 03/01/2023 COMPLETION DATE: Perpetual / Renewal Annually 9. TOTAL COMPENSATION $ 14,000.00 (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE -ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES A NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED 15YES ONO IF YES, $ PAID BY: ❑ CONTRACTOR A CITY RETAINAGE: RETAINAGE AMOUNT: ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED ❑ PURCHASING: PLEASE CHARGE TO: 502-1100-046-521-10-414 10. DOCUMENT/CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED ❑ PROJECT MANAGER * DIRECTOR TF 01/11/2023 ❑ RISK MANAGEMENT (IF APPLICABLE) 19 LAW JRC 1/18123 11. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR I MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / DATE SIGNED ❑ LAW DEPARTMENT _ ❑ SIGNATORY (MAYOR OR DIRECTOR)" I �. ❑ CITY CLERK ❑ ASSIGNED AG# AG# 1�-p COMMENTS: 2/20I7 Client Information .i smarshe Company Name City of Federal Way, WA Address 33325 8th Ave S City Hall City Federal Way State Washington Zip 98003 Technical Contact Name Thomas Fichtner Title Information Technology Manager Phone (253) 835-2547 Email thomas.fichtner@cityoffederalway.com Billing Contact Name Phone Address State Thomas Fichtner (253) 835-2547 33325 8th Ave S City Hall Washington Title Email City Zip Information Technology Manager thomas.fichtner@cityoffederalway.com Federal Way 98003 Quote Date 12/27/2022 Quote Expiration 02/28/2023 Start Date 03/01/2023 Renewal Date 03/01/2024 Sales Executive Shelby Phelan Billing Frequency Annual Services and Fees Smarsh Support Professional Support- Basic MobileGuard MT/ST Verizon - MG Cloud MT Recurring Subtotal One -Time Subtotal Notes US:+1(866)762-7741 UK:+44(0)800-048-8612www.smarsh.com Unit Price Quantity Contract Commitment 1 1 1 $ 78.62 135 $ 10,614.24 $ 10,614.24 $ 0.00 sma rsh Terms & Conditions On a date following the execution of this Order Form, Smarsh will provide Client with a license key for the Software or with login credentials to the applicable Service ("Activation Date"). Service Descriptions are available at www.smarsh.comjlegA The Services are subject to Smarsh Service Agreement -General Terms available at www.smarsh.com/legal/ServiceAgreement. The Services purchased by Client are also subject to the Information Security Addendum available at https://www.srnarsh.comfiegal IiifoSec and the following Service Specific Terms: Mobile Channels Service Specific Terms available "https://www.smarsh.com/legal/SSTMobileChannels";. The Smarsh Service Agreement — General Terms, the Information Security Addendum, the Service Specific Terms, and this Order Form are, collectively, the "Agreement." The Initial Term of the Services shall begin on the date this Order Form is executed and continue for the Subscription Term specified above, unless Client is adding the above Services to an existing Service account, in which case, the above Services will sync to and co -terminate with Client's existing subscription Term. The Services will be subject to renewals as specified in the Agreement. For AT&T Mobility subscribers, your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available at w4vs ,smarsh.com,`leeal; AT as they apply to AT&T messages that are archived by Smarsh. "Archive Fees" are the Fees charged for access to the Connected Archive (i.e., Professional Archive or Enterprise Archive). "Capture & Archive Fees" are the Fees that are charged for capture and archive of a bundle of Connections within the Professional Archive. "Capture Fees" are the per -Connection Fees that are charged for the capture of Connections by Connected Capture (i.e., Cloud Capture or Capture Server). "Premium Adj. Fees" are the additional Fees that are charged for capture of Connections from premium Channels. "Set-up Fees" are the one-time Fees that are charged to implement a Service. "Professional Services Fees" are the Fees charged for hourly, monthly, or flat rate professional services. The Platform Fees, the Capture & Archive Fees, the Capture Fees, and the Premium Adj. Fees, as applicable, are invoiced on an annual, up -front basis or a monthly basis in arrears, as specified on page 1 of this Order Form. Client agrees that the Recurring Subtotal above is Client's minimum commitment during each year or month, as applicable, of the Term. Smarsh will invoice Client for any usage over the minimum quantities at the applicable rate indicated in this Order Form. Third Party API Usage. In the event that any Third -Party Service charges any API usage fees, service fees, or pass through costs to Smarsh that are (i) in connection with the Client's use of the Services set forth in this Order Form and such Third Party Service, and (ii) Smarsh can reasonably demonstrate that such costs are directly allocated to the Client, Smarsh reserves the right to pass those costs along to the Client ("Third Party Fees"). Client agrees to pay all such Third -Party Fees when Smarsh invoices the Client for such fees, which will include a breakdown and description of each such cost. If not priced above, data import, conversion (if applicable), and storage Fees for Client's historical data and storage Fees for data from Connected Capture or other external capture mechanisms ingested into the Professional Archive are as follows: Data Imports - One-time $10/GB Import Data Conversion fees $3/GB Data Storage —Annual $2.50/GB Information about Smarsh data privacy compliance is available at www.smarsh.com/legal. US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com .i smarsK Purchase Order Information Client to Complete: Is a Purchase Order (PO) required for the purchase of the Services on this Order Form? ( ). No DO Yes — Please complete below PO Number: 070670 POAmount: $10,614.24 Upon signature by Client and submission to Smarsh, this Order Form shall become legally binding unless Smarsh rejects this Order Form for any of the following reasons: (i) changes have been made to this Order Form (other than completion of the purchase order information and the signature block); or (ii) the requested purchase order information or signature is incomplete; or (iii) the signatory does not have authority to bind Client to this Order Form. Client authorized si ture By: Name Title: L Y�l - Date: US:+1(866)762-7741 UK:+44(0)800-048-8612 www.smarsh.com I 1 VVl &%J fmalbAe,— PRESS RELEASE - SMARSH ACQUISITION OF MOBILEGUARD Smarsh Suite of Mobile Archiving Solutions Enables Companies to Retain and Monitor Employee Text Messages Across All Operating Systems, Carriers and Device Ownership Scenarios PORTLAND, Ore., December 8, 2016 — Smarsh', the leading provider of cloud -based information archiving solutions for compliance, e- discovery and risk management, has completed the acquisition of MobileGuard, a pioneer in mobile communication monitoring and retention solutions. With the integration of its long-time partner, Smarsh leverages the acquired patented intellectual property and development resources to enhance its market -leading, comprehensive support for all types of mobile communication. "The use of text messaging without the proper governance safeguards in place leaves a company at risk for brand and reputation problems, compliance consequences, and potentially devastating legal issues," said Stephen Marsh, founder and CEO of Smarsh. "This is an area of tremendous vulnerability that many companies have ignored. And the businesses that have tried to deal with this situation have either adopted multiple, disparate products that still leave gaps, or they have attempted to prohibit the use of mobile text messaging for business — which is unrealistic" Smarsh now offers the only archiving solution that captures mobile/text content directly from leading telecom carriers. Organizations can retain and supervise mobile/text content no matter which operating systems, mobile carriers or devices (company -issued or Bring Your Own Device) the organization and its employees use. Mobile/text content is available for search, review and production within The Archiving Platform from Smarsh, alongside an organization's archived email, social media, instant messaging and web content. "MobileGuard has been innovating in the space for years, is trusted by top brands, and has been a valuable partner of ours with a shared vision to mitigate the compliance chaos that is implicit with digital trends," said Marsh. "Together, we provide companies with the most comprehensive mobile archiving and monitoring solutions available, designed to eliminate the complexities that emerge from the variety of mobile configurations typically found within an organization" "Our long partnership with Smarsh allowed us to help hundreds of their customers alongside our own," said Todd Cohan, MobileGuard CEO. "This is a strong, strategic move that enables greater innovation and growth." Terms of the acquisition were not disclosed. -hftps://www. smarsh.com/press-release/smarsh-acquires-mobile-guardl RETURN TO: Terry Smith EXT: 2550 1. ORIGINATING DEPT./DIV: Information Technology 2. ORIGINATING STAFF PERSON: Thomas Fichtner EXT: 2547 3. DATE REQ. BY: ASAP 4. TYPE OF DOCUMENT (CHECK ONE): • CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) • PUBLIC WORKS CONTRACT El SMALL OR LIMITED PUBLIC WORKS CONTRACT F-1 PROFESSIONAL SERVICE AGREEMENT El MAINTENANCE AGREEMENT • GOODS AND SERVICE AGREEMENT El HUMAN SERVICES / CDBG • REAL ESTATE DOCUMENT 0 SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) • ORDINANCE 0 RESOLUTION A.i CONTRACT AMENDMENT (AG#): 16-055 DINTERLOCAL 0 OTHER NAME OF CONTRACTOR: MobileGuard, Inc ADDRESS: 20 Nassau Street, Princeton, NJ, 08542 TELEPHONE 1-503-946-3275 . .. .................. . . . . ....... E-MAIL: carrie.Breedlove@smarsh.com FAX: SIGNATURE.... NAME: Carrie Breedlove TITLE Account Executive, Govewwwnt 7. EXHIBITS AND ATTACHMENTS: it SCOPE, WORK OR SERVICES A COMPENSATION El INSURANCE REQUIREMENTS/CERTIFICATE El ALL OTHER REFERENCED EXHIBITS El PROOF OF AUTHORITY TO SIGN EIREQUIRED LICENSES OPRIOR CONTRACT/AMENDMENTS 9. TOTAL COMPENSATION $ 9,600.00 ............... (INCLUDE EXPENSES AND SALES TAX, IF ANY) IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE:o YES SNO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED 10YES NO IF YES, $ .......... PAID BY: El CONTRACTOR N CITY RETAINAGE: RETAINAGEAmOUNT: r,-,l RETAINAGE AGREEMENT (SEE CONTRACT) OR EIRE'rAINAGE BOND PROVIDED El PURCHASING: PLEASE CHARGE TO: 001-2100-094-521-11-410 10. DOCUMENT/CONTRACT REVIEW * PROJECT MANAGER * DIRECTOR El RISK MANAGEMENT (IF APPLICABLE) El LAW 11. COUNCIL APPROVAL (IF APPLICABLE) INITIAL / DATE REVIEWED JRC 5/14/2021 INITIAL / DATE APPROVED COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: El SENT TO VENDOWCONTRACTOR DATE SENT: DATE REC'D-. I] ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS 0 CREATE ELECTRONIC REMINDER/NOTIFICATION FOR I MONTH PRIOR TO EXPIRATION DATE (Include dept, support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) El LAW DEPARTMENT El SIGNATORY (MAYOR OR DIRECTOR) • CITY CLERK • ASSIGNED AG# AGE ow wi smarsh" r r f (".1 nrr) 101, (1, Client Information Company Name City of Federal Way, WA Address 33325 8th Avenue S city Federal Way State WA Zip/Postal Code 98003 Primary Contact Name Thomas Fichtner Title Information 11 - I . Te ch nmmmmmmmology Manager (Authorized User) Phone (253) 835-2547 Email thomas.fichtner@cityoffederalway.com Technical Contact Name Thomas Fichtner Title Information Technology Manager Phone (253) 835-2547 Email thomas.fichtner@cityoffederalway.com Billing Contact Name Thomas Fichtner Title Information Technology Manager Phone (253) 835-2547 Email thomas.fichtner@cityoffederalway.com Address 33325 8th Ave S City Federal Way State WA Zip 98003-6325 Quote Date 05/06/202108:18:51 Quote Expiration 06/11/2021 Smarsh Sales Executive Carrie Breedlove Term of Agreement 12 Months .... .... . .. Activation Date Upon Grant ofAccess to Service His Import Billing In Arrears ........ . . . .. ... ........ . . Setup Fee Billing Upon Contract Execution Services and Fees ... ........ . . . . ....... Rate per Quantity Minimum Minimum Quantity Verizon - MG Cloud MT -Annual $72.00 1.20 $8,640.00 Recurring Subtotal $8,640.00 One -Time Subtotal . .... ...... $ 0.00 Notes US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 1 of 4 Terms & Conditions On a date following the execution of this Order Form, Smarsh will provide Client with a license key for the Software or with login credentials to the applicable Service ("Activation Date"). Service Descriptions are available atwww.smar I� r rI 1p p,j°; The Services are subject to Smarsh Service Agreement -General Terms available at wwMd.sn9ar5h.carn/1ega115 r° r'rr A n°wart. The Services purchased by Client are also subject to the Information Security Addendum available at httyas. yr r wwr „rnarwh.rom/lei i gn4o4 . and the following Service Specific Terms: The Smarsh Service Agreement— General Terms, the Information Security Addendum, the Service Specific Terms, and this Order Form are, collectively, the "Agreement." The Initial Term of the Services shall begin on the date this Order Form is executed and continue for the Subscription Term specified above, unless Client is adding the above Services to an existing Service account, in which case, the above Services will sync to and co -terminate with Client's existing subscription Term. The Services will be subject to renewals as specified in the Agreement. For AT&T Mobility subscribers, your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available atrwwr n�Wer°,h uor 1, aN fA i;j as they apply to AT&T messages that are archived by Smarsh. "Archive Fees" are the Fees charged for access to the Connected Archive (i.e., Professional Archive or Enterprise Archive). "Capture & Archive Fees" are the Fees that are charged for capture and archive of a bundle of Connections within the Professional Archive. "Capture Fees" are the per -Connection Fees that are charged for the capture of Connections by Connected Capture (i.e., Cloud Capture or Capture Server). "Premium Adj. Fees" are the additional Fees that are charged for capture of Connections from premium Channels. "Set-up Fees" are the one-time Fees that are charged to implement a Service. "Professional Services Fees" are the Fees charged for hourly, monthly, or flat rate professional services. The Platform Fees, the Capture & Archive Fees, the Capture Fees, and the Premium Adj. Fees, as applicable, are invoiced on an annual, up -front basis or a monthly basis in arrears, as specified on page 1 of this Order Form. Client agrees that the Recurring Subtotal above is Client's minimum commitment during each year or month, as applicable, of the Term. Smarsh will invoice Client for any usage over the minimum quantities at the applicable rate indicated in this Order Form. 11 If not priced above, data import, conversion (if applicable), and storage Fees for Client's historical data and storage Fees for data from Connected Capture or other external capture mechanisms ingested into the Professional Archive are as follows: Data Imports - One-time $10/GB Import Data Conversion fees $3/GB Data Storage —Annual $2.50/GB Information about Smarsh data privacy compliance is available at wwvww.srirarsh.comJiE, LJ.❑ Client authorized signature BY "rg° Name" � "1�1 —_� Title: te; 5"�r ... .—.....�...��_ Da ........._ a. US: +1 (666) 762-77 1 UK.-+44 (0) 00-046-8612 www.smarsh.com arsh.co Page 2 of 4 EXHIBIT A Amendment to the Smarsh Service Agreement — General Terms This first amendment ("Amendment") to the Smarsh Service Agreement - General Terms amends the Agreement between Smarsh Inc. and City of Federal Way, WA. This Amendment is effective on the date the Client signs the Order Form, to which this Amendment is attached as Exhibit A. The parties agree: 1) Replace Section 4.3 in its entirety, as follows: As between Client and Smarsh, Client is solely responsible for the content of Client Data. Client represents and warrants that (a) Client Data will not (i) infringe any third party right, including third party rights in patent, trademark, copyright, or trade secret, or (ii) constitute a breach of any other right of a third party, including any right that may exist under contract or tort theories; (b) Client will comply with all applicable local, state, national, or foreign laws, rules, regulations, or treaties in connection with Client's use of the Services, including those related to data privacy, data protection, communications, SPAM, or the transmission, recording, or storage of technical data, personal data, or sensitive information; and (c) Client will comply with the Acceptable Use Policy available at www srngghh;l oni le alg IAUP. Smarsh may update the Acceptable Use Policy from time to time. 2) Replace Section 6.1 in its entirety, as follows: Term. The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or, if no term is specified, 12 months ("Initial Term"). The Initial Term may be renewed by Client for additional, successive 12- month terms (each a "Renewal Term") upon the execution of a Renewal Order Form. The Initial Term plus any Renewal Term are, collectively, the "Term." Any Order Form executed after the Effective Date will co -terminate with Client's then -current Term. 3) Replace Section 6.2 in its entirety, as follows: Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and such breach remains uncured for a period of 30 days following the non -breaching party's written notice thereof. Smarsh may suspend Client's access to the Services in the event Client fails to pay undisputed Fees within 60 days after the due date, and Smarsh will not be liable for any damages resulting from such suspension. 4) Replace Section 9 in its entirety, as follows: Taxes. All Fees payable by Client under this Agreement are exclusive of taxes and similar assessments. Smarsh acknowledges that Client is tax-exempt. 5) Replace Section 10.2 in its entirety, as follows: Obligations with Respect to Confidential Information. Each party agrees: (a) that it will not disclose to any third party, or use for the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted by this Agreement; and (b) that it will use at least reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control but no less than the measures it uses to protect its own confidential information. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement; (ii) to the parties' agents, representatives, subcontractors or service providers who have a need to know such information provided that such party shall be under obligations of confidentiality at least as restrictive as those contained in this Agreement; or (iii) pursuant to a WA public records request, provided that the Client gives notice to Smarsh in a Us: +1(866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.com Page 3 of 4 reasonable amount of time to allow Smarsh the opportunity to seek a protective order preventing such disclosure. Each party will promptly notify the other party in writing upon becoming aware of any unauthorized use or disclosure of the other party's Confidential Information. 6) Replace Section 13.1 in its entirety, as follows: Client Indemnification. To the extent permitted by WA law, and without in any manner waiving its rights to sovereign immunity or increasing the limits of liability thereunder, Client will defend, indemnify and hold harmless Smarsh, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including fines, penalties, and reasonable attorneys' fees), arising from or related to the content of Client Data and Client's breach of the Service Specific Terms or Sections 4.2, 4.3, 4.4, 4.5, or 15.1 of this Agreement. Smarsh will (a) provide Client with prompt written notice upon becoming aware of any such claim; except that Client will not be relieved of its obligation for indemnification if Smarsh fails to provide such notice unless Client is actually prejudiced in defending a claim due to Smarsh's failure to provide notice in accordance with this Section 13.1(a); (b) allow Client sole and exclusive control over the defense and settlement of any such claim; and (c) if requested by Client, and at Client's expense, reasonably cooperate with the defense of such claim 7) Replace Section 15.4 in its entirety, as follows: Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of WA, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in , in the State of WA, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. 8) Replace Section 15.9 in its entirety, as follows: Entire Agreement; Electronic Signatures. This Agreement is the entire agreement between the parties with respect to its subject matter, and supersedes any prior or contemporaneous agreements, negotiations, and communications, whether written or oral, regarding such subject matter. Smarsh expressly rejects all terms contained in Client's purchase order documents, or in electronic communications between the parties, and such terms form no part of this Agreement. The parties agree that electronic signatures, whether digital or encrypted, give rise to a valid and enforceable agreement. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. 9) Delete Section 16, concerning alternative jurisdiction, in its entirety. US: +1 (866) 762-7741 UK: +44 (0) 800-048-8612 www.smarsh.co Page 4 of 4 RETURN TO: Thomas Fichtner EXT:2547 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM I. ORIGINATING DEPT./DIV: Information Technology 2. ORIGINATING STAFF PERSON: Thomas Fichtner EXT: 2547 3. DATE REQ. BY: ASAP 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G, RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUWNTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#): ❑ INTERLOCAL 0 OTHER Contractor's Form for NetGuard Services 5. PROJECT NAME: NetGuard Text Message Archiving 6. NAME OF CONTRACTOR: MobileGuard, Inc. ADDRESS: 20 Nassau Street TELEPHONE 1-646-459-4354 x1 l0 E-MAIL: mbanyra@mobileguard.com FAX: SIGNATURE NAME: Michael Banyra TITLE VP, Sales & Marketing 7. EXHIBITS AND ATTACHMENTS: A SCOPE, WORK OR SERVICES A COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS 8. TERM: COMMENCEMENT DATE: 4/13/2016 COMPLETION DATE: Automatic Annual Renewal 9. TOTAL COMPENSATION $ 8,300.00 (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES 11 NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED [EYES ❑ NO IF YES, $ PAID BY. ❑ CONTRACTOR IN CITY ❑ PURCHASING: PLEASE CHARGE TO: 001-2100-094-521-11-410 10. DOCUMENT/CONTRACT REVIEW INIT / DATE REV EWED INITIAL / DATE APPROVED �YPROJECT MANAGER DfftEeTOR I%AUAG -'Y\ ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW r12 L K 13 l 11. COUNCIL APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS INITIAL / DATE SIGNED ❑ LAW DEPARTMENT 0-10-L N l to ❑ CHIEF OF STAFF rqWn ❑ SIGNATORY (MAY -OR -OR -DIRECTOR) 'r y ? 1 ❑ CITY CLERK 01W ❑ ASSIGNED AG# AG# &-055- ❑ SIGNED COPY RETURNED DATE SENT: COMMENTS: 11/9 A Proposal for NetGuard Prepared by: Michael Banyra MobileGuard, Inc. +1-646-459-4354, x110 mbanyra@mobileguard. Prepared for: Thomas Fichtner thomas.fichtner@cityoffederalway.com Mobile Compliance Sohidons NetGuard Overview and Pricing Dear Thomas, Thank you for your interest in evaluating MobileGuard for your mobile compliance needs. NetGuard is an ideal solution, integrating at the carrier tier and requiring no software on any device. I have included a service and pricing overview for your consideration and our sole source letter. As an ACCIS member you are receiving volume discount pricing. Regards, Michael Banyra Mobile Compliance Solutions The NetGuard Service The MobileGuard NetGuard'" Service provides a complete solution for the monitoring, capture and archiving of SMS and MMS messages sent from company mobile devices on a supported wireless carrier network. All text messages are identified, coIIected, and archived in a format that is easily accessible, allowing companies to establish meaningful internal compliance policies regarding mobile devices and to meet compliance mandates from all relevant regulatory bodies. MobileGuard presently supports Android®, Blackberry®, iPhone®, Windows® and non- smartphone operating systems capable of sending and receiving SMS and MMS messages on a supported wireless carrier network. Supported US Carrier Networks: • AT&T - "Bring Your Own Device" (BYOD) and Company Owned Devices • Verizon Wireless - Company Owned Devices MobileGuard features include: • Comprehensive capture & archiving of SMS and MMS messages • Encryption • Search and retrieval • Policy management • Intelligent Storage Manager • Proactive SMS Blocking/Monitoring • Easy to use Roles -based Web user interface ("User Interface") • Reporting & Statistics Hove NetGuard Works Mobile Complia c e ` oltzdons p Secure Web Connection Port 443 Secure Web Connection Port 443 Email Archive System Mobile Coniphance Soludons NetGuard Integrations Key to efficiency in deploying NetGuard is ease of connectivity to critical systems in use at your organization. We outline these below. Our integrations include: Mobile Device Management • AirWatch • Mobile Iron Archiving Solutions • Autonomy • Barracuda • Enterprise Vault • Global Relay • MessageWatcher • Proofpoint • Smarsh If you don't see your provider here - just ask us. MDM AGTWE DIRECTORY MOBILEGUARD DATABASE 1 1 ame �. 1s Employee r Employee mall Custom Fields EmDiovee Status ADMIN CONSOLE EMAILARCHIVING vie � Attachments Report Employee SMS Manual Update Employee MMS klobile Compliance Solutions Pricing Table -Monthly Fees NetGuard Hosted ACCIS Price SMS and MMS archiving through authorized wireless carrier with no software required on device. Quantity 90 Subtotal $540.00 Total $540.00 Pricing -One Time Fees Activation Fee per Device $5.00 90 50% $225.00 (applies to all services) $5 per device activated one time NetGuard Implementation Fee $500.00 1 20% $400.00 Hosted for 25-200 Devices Implementation services —for .95-200 devices, hosted. Training Session 25-200 $500.00 1 20% $400.00 Devices • A technical session for implementing the application for your organization, • An administrative trainina, session to review and understand how to utilize the Admin Console for the NetGuard service • A brief session to insure Customer understands how to report ctistomer service issues online, via email and via telephone, to MobileGUard. Mobile Compliance Sohitions Subtotal $1,025.00 Total $1,025.00 Terms and Conditions By executing the MobileGuard Services Agreement Order Form (the "Order Form") with MobileGuard Inc. ("MobileGuard"), the Customer, as named in the Order Form, acknowledges and agrees that these MobileGuard Services Agreement Terms and Conditions (the "Terms and Conditions"), along with any MobileGuard Services Agreement Order Form executed by the parties and incorporating these Terms and Conditions by reference and any documents referenced herein via URL links (collectively, the "Agreement'), represent the entire agreement between the parties with respect to the subject matter herein. All capitalized terms used in these Terms and Conditions but not otherwise defined herein shall have the meanings ascribed to them in the Order Form. 1. Order Form; Change Orders. The Services (as defined below) to be provided to Customer by MobileGuard, the related compensation to be paid by Customer to MobileGuard, and such other terms and conditions as MobileGuard and Customer may agree, are set forth on the Order Form. Any changes to the Order Form may be requested by Customer pursuant to a written change order, which MobileGuard may accept or decline in its reasonable discretion (a "Change Order"). A Change Order shall not become effective until it is signed by both parties. 2. License and Restrictions. (a) Services. The services provided under this Agreement are those services embodied in the Products which Customer shall receive pursuant to the Order Form (the "Services"). Each Product includes access to an administrative portal (the "Administrative Portal"). (The Administrative Portal is, in the case of Products described as "hosted", accessible at a website to be provided by MobileGuard, and, in the case of Products described as "on premise", a part of the Software (as defined below).) The Products called MessageGuard require a mobile application to be downloaded on the Devices (as defined below) (the "Application'). The Products called NetGuard are integrated at the mobile carrier level and therefore do not require any mobile application on the Devices (the "Integrated Product'). Both MessageGuard and NetGuard are available on an "on premise" or "hosted" basis. The Products described as "on premise" require Customer to collect and host the Data (as defined below) itself. As such, "on premise" Products include certain software which must be installed on Customer's computer(s) in order to archive and access Data (as defined below) on Customer - owned or designated servers (the "Software"). For the Products described as "hosted", MobileGuard provides hosting services described herein for the archiving and accessing of Data (the "Hosting Services"). In some cases, a Customer using an "on premise" Product may require the use of the Hosting Services for purposes of retrieving Data from Customer -owned or designated servers located abroad. The Administrative Portal, the Software, the Hosting Services, the Application and the Integrated Product are each and collectively considered the Services. (b) Grant of Licenses to Customer. MobileGuard hereby grants to Customer, during the Term, the following rights as applicable based on the Products Customer selects on the Order MobileGuard Services Agreement Terms and Conditions Form, solely for internal business use for the purposes described more fully below: (i) a non-exclusive, non -transferable, non- sublicensable license, subject to the terms of this Agreement, to access and use the Administrative Portal, solely for purposes of administrating the Product(s) and in accordance with any Documentation (as defined below); (ii) if applicable, a non-exclusive, non- transferable, non-sublicensable license, subject to the terms of this Agreement, to download (and copy solely as required to download) the Software on Customer -owned or Customer - controlled computers solely for the purposes of using the Products as intended pursuant to any Documentation; (iii) if applicable, a non-exclusive, non- transferable, non-sublicensable license, subject to the terms of this Agreement, to use the Hosting Services solely for the purposes of storing and accessing the Data (as defined below); (iv) if applicable, a non-exclusive, non- transferable, non-sublicensable license, subject to the terms of this agreement, to use the Integrated Product solely for the Devices and solely for the purposes of using the Products as intended pursuant to and Documentation; and (v) a non-exclusive, non -transferable, non-- sublicensable license, subject to the terms of this Agreement, to use any Services -related documentation provided to Customer by MobileGuard (the "Documentation") only in conjunction with the relevant Services. (vi) Customer acknowledges that the Application is available at certain mobile application stores, as well as through MobileGuard, for download on compatible Devices. Download and use of the Application is subject to an end user license agreement (the "EULA") between MobileGuard and the individuals who own and/or control the Devices (the "End Users"). As between the parties, Customer shall be responsible for ensuring that any and all End Users comply with the terms and conditions set forth in the EULA. (c) Restrictions. Except as expressly authorized in this Agreement, Customer shall not, and will ensure that End Users shall not, directly or indirectly: (i) sublicense, rent, lease, sell, loan, transfer, distribute, translate, reverse engineer, decompile, or disassemble or otherwise obtain or attempt to create, derive, or obtain the source code of any Products or Services; (ii) modify, enhance or otherwise change any Products or Services, or prepare derivative works based on the Products or Services; (iii) copy or otherwise reproduce the Products or Services or any materials provided in connection therewith; (iv) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Products or Services; (v) circumvent or attempt to circumvent any methods employed by MobileGuard to control access to the components, features or functions of the Products and Services, or to prevent unauthorized use of any of the Products or Services; (vi) use the 4 MOsidsou.55o.Doc Products or Services in any commercially hosted or service bureau environment or otherwise exploit the Products or Services for any purpose, commercial or otherwise, or (vii) use the Products or Services for any purposes of competitive analysis, the development of a competing product or service or any other purpose that is to MobileGuard's commercial disadvantage. In addition, Customer's use of the Products and Services shall be subject to such additional restrictions as may be described on the Order Form. (d) Grant of License to MobileGuard. Solely to the extent Customer uses the Hosting Services (or `on premise' Products that require MobileGuard to receive and transmit Data (as defined below)), Customer hereby grants to MobileGuard a non- exclusive, non -transferable (except as provided in Section I I(a)), sublicensable (solely as necessary to make the Hosting Services available to Customer) royalty -free and fully paid up, worldwide license to use, copy, distribute and transmit the Data for purposes of providing the Services to Customer. "Data" means all information and data submitted by or for Customer to the Services or collected and processed by or for Customer using the Services. 3. Ownership and Reservation of Rights. (a) MobileGuard Intellectual Property. Notwithstanding anything to the contrary herein, as between the parties, MobileGuard is the sole and exclusive owner of all rights, title and interest in and to all copyright, patent, trademark, service mark, moral rights and any other intellectual property and/or proprietary rights, whether or not registrable, in the Products and Services, any component thereof and any and all materials related thereto, including without limitation, any and all documentation, whether or not developed by MobileGuard, and all generalized knowledge, skill, know-how and expertise relating to such information (the "MobileGuard Intellectual Property"). Nothing herein shall be construed as granting to Customer any ownership interest in any of the MobileGuard Intellectual Property. All rights in the Products and Services not expressly granted hereunder are hereby retained by MobileGuard. (b) Improvements. Notwithstanding anything to the contrary herein, MobileGuard shall solely and exclusively own, and shall have the right to use in any manner, all oral and written comments and any other reports, materials, information, ideas, concepts, and know-how provided by Customer, or any End User, to MobileGuard, including without limitation in connection with any errors, defects, or deficiencies in the Products or Services and any suggestions for corrections or improvements thereto, except to the extent any of Customer's Confidential Information (as defined below) is included therein (all the foregoing, collectively, "Improvements"). To the extent that by operation of law or otherwise, any right, title, or interest in or to the Improvements vests in Customer, Customer hereby irrevocably and unconditionally assigns and agrees to assign to MobileGuard the Improvements and forever waives and agrees never to assert any and all such right, title, and interest in such Improvements. Customer shall execute all documents and take all other actions requested by MobileGuard in connection with the foregoing assignments and waivers. At MobileGuard's request, Customer will assist MobileGuard in obtaining protection for any intellectual property right(s) associated with the Improvements. Under no circumstances will MobileGuard become liable for any payment to Customer for any Improvements or other information that Customer provides hereunder, whether concerning the Products, Services or otherwise, no matter how such Improvements or other information are used or exploited by MobileGuard. (c) Data. Notwithstanding anything else herein to the contrary, as between the parties, Customer is the sole and exclusive owner of the Data. MobileGuard shall have no rights in or to the Data, nor any responsibilities as to the Data, except as explicitly set forth in this Agreement. For clarity, Data shall not include any data generated or collected by MobileGuard regarding the operations of the Products and Services (the "Control Data"). The Control Data shall be considered MobileGuard Intellectual Property for purposes of this Agreement. 4. Responsibilities of the Parties. (a) Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder. Customer represents and warrants that it is permitted under applicable law and otherwise to use the Products and Services in conjunction with all Devices and has the valid and enforceable right to provide all Data for purposes of the Products and Services hereunder. (b) Authorized Device Capabilities. Customer acknowledges and agrees that the Services rely on wireless communications connections in order to operate, and will only function so long as the Devices are connected to fully functional wireless communications networks. Customer acknowledges and agrees that, as between the parties, it is Customer's responsibility to ensure the wireless communications network(s) and the environment in which Customer and End Users are using the Services are capable of and conducive to such use. (c) Updates. MobileGuard may, but is not obligated to, provide updates, fixes or any other changes to the Products and Services based on feedback from Customer or otherwise from time to time. (d) Subcontractors. MobileGuard may use a third party subcontractor to perform any of its obligations under this Agreement. Customer hereby acknowledges that MobileGuard currently uses a third party hosting service to provide the Hosting Services. Any third party hosting provider utilized by MobileGuard has represented or will represent, prior to MobileGuard's engagement of such hosting provider, that it is compliant with SSAE 16 SOC 2 Type II data security audit protocol (or an equivalent protocol). (e) Data Security. MobileGuard and Customer shall each comply with privacy laws, to the extent applicable to such party's performance of its respective obligations under this Agreement. MobileGuard shall use reasonable care to provide a secure environment for the Data under the Services in so far as such Data is in MobileGuard's possession. MobileGuard warrants that it conducts, at least once per year, a SSAE 16 SOC 2 Type II (or equivalent) security audit. For clarity, MobileGuard disclaims all liability to the extent arising from the transmission of Data to and from the Services, or delays or errors caused by Customer hardware or software, or networking or telecommunications systems, Internet access, telephone access lines and communications equipment. Customer is responsible for any additional Data protections or backup Customer may wish to have in place. 5. Term and Termination. (a) Term of Agreement. The term of this Agreement shall be as set forth in the Order Form (the "Term"). (b) Termination. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days of its receipt of notice of such breach. With regard to non- payment, MobileGuard shall have the right to terminate this Agreement, or suspend Services hereunder, without further notice if an undisputed invoice provided to Customer hereunder is not paid in full within sixty (60) days after the due date of such invoice, and such invoice remains unpaid for ten (10) business days after Customer's receipt of written notice of such non-payment. Additionally, MobileGuard shall have the right to terminate this Agreement immediately without notice in the event Customer's and/or any End User's use of the Products and/or Services is not in accordance with all applicable laws, rules and regulations. (c) Effects of Termination. Upon expiration or termination of this Agreement, Customer agrees to immediately (i) cease using the Products and Services; (ii) delete any Software from Customer -owned or designated machines, including computers and services, if applicable; and (iii) remove, or cause End User to remove, the Application from all Devices, if applicable. If Customer has been using a Product for which Data remains in MobileGuard's possession (instead of being exported), Customer shall have ninety (90) days from the date of expiration or termination to request the Data, in which case mutually agreed upon fees related to such transition services will apply. Any unclaimed Data will be destroyed after such 90-day period. If Customer has been using a Product for which Data is either exported by or through MobileGuard, Customer acknowledges that MobileGuard retains a copy of all such Data for a period of between seventy-two (72) hours and thirty (30) days after MobileGuard's transmission of such Data. These 72-hour to 30- day retention periods will apply even after expiration or termination of this Agreement. At the end of such retention periods, the Data is destroyed. MobileGuard has the right but not the obligation to retain a copy of the Data solely for compliance purposes. (d) Survival. The provisions of Sections 3; 5(c); 5(d); 6 (solely as to Fees accrued as of termination); and 7'through 11 shall survive any termination or expiration of this Agreement. 6. Payment. (a) Payment. Customer shall pay to MobileGuard the fees set forth in and in accordance with the Order Form (the "Fees"). Prices shall be as set forth on the Order Form and are non -creditable, non -recoupable and non-refundable except as expressly provided otherwise herein. MobileGuard shall bill Customer on a monthly basis. Payment of each undisputed invoice shall be due within thirty (30) days of Customer's receipt of such invoice. Customer's right to dispute any amounts does not relieve Customer of its obligation to pay any undisputed amount by the applicable due date. A late payment charge of the lesser of 1.5% per month or the highest lawful rate may be applied to any outstanding balances until paid, and Customer shall be responsible for paying all such late charges. All payment under this Agreement shall be made in United States dollars. (b) Taxes. Customer shall pay MobileGuard for all applicable taxes relating to MobileGuard's provision of the Services, other than taxes based on MobileGuard's income. Such taxes will be incorporated in the payment terms set forth on the Order Form. 7. Confidentiality. (a) Confidential Information. For the purposes of this Agreement and subject to the exclusions listed below, "Confidential Information" shall mean any and all information, documents, manuals, files or other materials provided, directly or indirectly, in any form whatsoever, by one party (the "Disclosing Party") to the other party (the "Receiving Partv") or otherwise belonging to the Disclosing Party (e.g., Improvements, Data) in connection with this Agreement which is either marked "confidential" or can reasonably be assumed to be confidential based on the nature of the material and the circumstances of its disclosure. Notwithstanding anything herein to the contrary, "Confidential Information" shall not include any information, documents, manuals, files or other materials that the Receiving Party can show through reasonable evidence (i) are or become publicly available without breach of this Agreement by the Receiving Party; (ii) are rightfully received by the Receiving Party without obligation of confidentiality from a source which is not prohibited from disclosing such information; (iii) are independently developed by the Receiving Party without access to or use of the disclosing parry's Confidential Information; or (iv) were in the Receiving Party's possession or known to the Receiving Party prior to its receipt of such information from the Disclosing Party. (b) Restrictions on Disclosure. The Receiving Party shall receive, maintain and hold the Disclosing Party's Confidential Information in strict confidence and will use at least the same level of care in safeguarding such Confidential Information that it uses with its own confidential information of a similar nature, but in no event less than reasonable care under the circumstances. Customer agrees that MobileGuard may disclose Customer's Confidential Information to its employees and contractors with a need to know in connection with the provision of the Services under this Agreement. MobileGuard will instruct all such employees and contractors in advance that they must comply with the restrictions set forth herein. The Receiving Party will immediately notify the Disclosing Party of any disclosure of the Disclosing Parry's Confidential Information in violation of this Agreement. If the Receiving Party receives a demand from a legal or regulatory authority of competent jurisdiction (or otherwise pursuant to a requirement of law) requiring the disclosure of the Disclosing Party's Confidential Information, the Receiving Party shall provide notice to the Disclosing Party of such demand or requirement prior to disclosing the Confidential Information, and shall, upon reasonable request and at the expense of the Disclosing Party, cooperate in any reasonable efforts by the Disclosing Party to seek arrangements to protect the confidentiality and proprietary nature of such Confidential Information. (c) Injunctive Relief. The parties agree that a breach of any of the obligations set forth in this Section 7 would irreparably harm and damage the other party. As such, the Disclosing Party shall be entitled to seek and obtain immediate injunctive relief to stop any disclosure or threatened disclosure of the Disclosing Party's Confidential Information, without any limitation to any other remedies available to the Disclosing Party. (d) Survival of Confidentiality Obligations. Upon termination of this Agreement, each party shall return to the other party any Confidential Information of such other party that it has in tangible form in its possession. The obligations set forth in this Section 7 shall survive termination of this Agreement and remain in effect so long as the Receiving Party possesses or has access to the Disclosing Party's Confidential Information, whether in tangible or intangible form. 8. WARRANTY DISCLAIMER EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MOBILEGUARD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING USE OF OR RELIANCE ON THE PRODUCTS OR SERVICES, AND THE PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES OF MOBILEGUARD SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND MOBILEGUARD HEREBY DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA INACCURACY, OR NONCONFORMITY IN THE PRODUCTS, SERVICES OR ANY OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY: (I) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND (III) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF MOBILEGUARD (WHETHER ACTIVE, PASSIVE OR IMPUTED). MOBILEGUARD DOES NOT WARRANT THAT OPERATION OF OR USE OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, ERROR -FREE. CUSTOMER WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF A WIRELESS COMMUNICATIONS NETWORK OR DATA TRANSMISSION, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BY OR ON BEHALF OF CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO ANY MALWARE, VIRUS OR DESTRUCTIVE CODE RESULTING THEREFROM, AND MOBILEGUARD DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE. 9. Limitation of Liability. IN NO EVENT SHALL MOBILEGUARD BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE PRODUCTS OR SERVICES OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST SALES OR BUSINESS EXPENDITURES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, LOST, DESTROYED OR CORRUPTED DATA, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT MOBILEGUARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL MOBILEGUARD'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF (I) ONE HUNDRED THOUSAND DOLLARS ($100,000); OR (II) AN AMOUNT EQUIVALENT TO THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 10. Indemnification. (a) Each party shall indemnify, defend, and hold harmless the other party and its officers, employees, agents, affiliates, successors and assigns from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys' fees) arising from or in connection with (i) such parry's material breach of any of its representations or warranties under this Agreement; and (ii) such party's gross negligence, willful misconduct, or violation of the law. (b) By Customer. Customer shall indemnify, defend, and hold harmless MobileGuard and its officers, employees, agents, affiliates, successors and assigns from and against all claims, actions, demands, and suits by third parties, and all losses, liabilities, damages, costs, and expenses associated therewith (including reasonable attorneys' fees) arising from or in connection with any allegation relating to Customer's use, or any of its End Users' use, of the Products or Services (i) for any purpose other than those expressly permitted under this Agreement, or (ii) in combination with other mobile applications or computer programs not licensed by MobileGuard to Customer. (c) By MobileGuard. MobileGuard shall defend, at its expense, any claim, lawsuit or related action brought against Customer alleging that the Application or Services infringe a United States patent or copyright, and shall pay all costs and damages finally awarded. In the event of any such claim, Customer, upon MobileGuard' request, shall immediately cease using the Products and Services, and MobileGuard will use commercially reasonable efforts to (i) procure for Customer the right to continue to use the Products and Services as set forth in this Agreement, (ii) provide a reasonable workaround solution, or (iii) replace or modify the Products and Services to make their use under this Agreement non -infringing, or, if alternatives (i)-(iii) are not practicable, to refund a prorated portion of the fees paid by Customer under this Agreement and terminate this Agreement upon written notice to Customer. The remedy set forth in this Section 10(c) shall be the sole remedy for Customer in the event of a claim, lawsuit or related action covered by this Section 10(c). (d) Indemnity Process. The rights of indemnity under this Section 10 are conditioned upon the indemnified party's provision to the indemnifying party of (i) prompt written notice of the applicable claim, (ii) any information in the possession of indemnified party related to such claim, (iii) reasonable assistance by the indemnified party at the indemnified parry's cost, and (iv) sole authority to settle or defend such claim, provided any such settlement does not admit fault on the part of the indemnified party. 11. Other Provisions. (a) No Assignment. Customer shall not assign, delegate, or otherwise transfer in any way either this Agreement or any of Customer's rights, duties or obligations hereunder without the prior written consent of MobileGuard. MobileGuard may assign this Agreement in connection with the sale of any portion of its business related to the subject matter of this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted assignees, transferee and successors of each of the parties. (b) Force Majeure. MobileGuard shall not be liable for any delay or failure of performance of any portion of this Agreement arising out of or resulting from any cause beyond its control, including, without limitation, acts of God, acts or omissions or civil or military authorities; government regulations, embargoes, epidemics, war, terrorist acts, riots, civil commotion or uprising, nuclear accidents or power outages (each, a "Force Majeure Condition"). If such Force Majeure Condition results in a delay or failure to perform that continues for more than thirty (30) consecutive days, Customer may, without penalty, elect to (i) terminate this Agreement; or (ii) suspend such affected Services until the Force Majeure Condition is resolved. (c) Independent Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency or employment relationship between MobileGuard and Customer. (d) Waiver. The waiver or failure of either party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. (e) Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of this Agreement shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision. (fj Notice. Any notice or other communications required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given three (3) days after mailing by first class certified mail, postage prepaid, to the following address: To MobileGuard: MobileGuard Inc. 20 Nassau St. Princeton, NJ 08542 Attn: [ To Customer: To the Customer's contact address set forth on the Order Form. (g) Integration. This Agreement (consisting of the Order Form and these Terms and Conditions) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. (h) Amendments. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by both parties. (i) Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of North Carolina without reference to its choice of law principles. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in Wake County, North Carolina, with regard to any suit or claim arising under or by reason of this Agreement. Customer will not commence or prosecute any suit or claim to enforce this Agreement, or otherwise arising under or by reason of this Agreement, other than in such courts. 0) Dispute Resolution. The parties agree to engage in good faith negotiations in the event of any dispute, controversy or claim between the parties relating to this Agreement (a "Dispute"). If a Dispute cannot be settled through good faith negotiations after a reasonable amount of time, the parties agree to submit the Dispute to mediation, which requirement may be waived upon mutual written agreement. If the Dispute is not otherwise resolved by negotiation or mediation within seventy-five (75) days of first written notice of the Dispute provided by one party to the other, the parties may then resort to binding arbitration with the American Arbitration Association ( the "AAA") in accordance with the AAA's Commercial Arbitration Rules then in effect. If a party submits a demand for arbitration, the parties agree that arbitration will be the exclusive forum for adjudication of the Dispute, provided such demand precedes the filing of a complaint in any court of competent jurisdiction. The cost of arbitration (including the fees and expenses of the arbitrator(s)) will be shared equally by the parties; provided, however, that each party will pay its own attorney's fees. The arbitrator(s) will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of this Agreement. The award may be confirmed and enforced in any court of competent jurisdiction. With regard to any action for breach of confidentiality or intellectual property obligations, nothing in this Section 110) will preclude with party from seeking interim equitable relief. Any such request by a party of a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder. [End of Terms and Conditions] N14obile Compliance Solutions Accept Proposal with Signature rIf max der December 1, 2015 To Whom It May Concern: MobileGuard, Inc. (formerly TextGuard, Inc.) was founded in 2007, originating from a ten year old IT Security firm as the proliferation of mobile devices entered the enterprise space. The company pioneered the mobile communication capture and monitoring space early, which resulted in obtaining the US patent # 8,107,944 — "System and Method for Automatic Data Security, Back-up and Control for Mobile Devices". Originally developed as a client solution with Windows mobile, our Client SMS Capture solution, MessageGuard, also supports the Android OS as well as the Blackberry OS. In 2014, we launched a new network solution integrated directly with wireless carriers called NetGuard. NetGuard can capture native SMS/MMS messages for any device on the carrier network with no application on the device, including: • Standard cell phones ("flip phones" or "feature phones") • Android • Blackberry • iPhone • Windows 8 and 10 After capturing the message, the information is stored for monitoring and reporting needs. MobileGuard offers these solutions in both hosted and on premises license models to meet the needs of your organization. Given the above, MobileGuard is uniquely positioned to assist you with compliance and archiving initiatives, being the only company in the United States delivering these services in both on premises and hosted options through direct wireless carrier integration. If you have any further questions, please contact me at 646-459-4354 x101. Thank you and regards. Todd M.Cohan President MobileGuard, Inc. 120 Nassau Street, Princeton, N108542 1 646-459-4354 Form 11 —W Request for Taxpayer + aroma, to tl W riot � 2M, Identification Number arul Cert�ficaftn= I p TmWestft a-romeecoftoreah Forado the �am"FATCAtepoftV Ui c� I not hang amber, we flay to Beta ffthe ac oourd is intnore titan one name, see the insbuctlionsfor line 1 and the dint on page 4 for guklelineson %tiose nuinberto ear. 21014 1. The number spawn of this form is my correct taxpayer klentification number W I am waiting for a runber to be issued to me) and 2. lam of subject to backup viitriholding because. (a) I an exempt iron backup witFdtoMig, or (b) I have not been notified by the hrtemat Revenue Service ORS) that I am subject to backw xnthtwkfing as a resin of a fa m W report all kftest or divkdmd% or (c) the IRS has notified me that I am no WmW subject to backup withhokling; and 3. 1 am a US. c en or other U.8, Person (deiffted bdow), and 4. The FATCA Oode(s) sacred on this form Cif any) indicating Viet t am exempt froth FATCA reporting is;connect. Cerdficaftin instAtMo rs. You must cross out item 2 above if you have been nctbW by the IRS the you are currently subject to backup witidwl lm9 because you have wed to report all interest and dvidends of your tax ratan. For real estate transactions, item 2does tut apply. For mortgage tents offM than interftand fends, you are not Section referenoft are to the Internal Revenue Code unlace otherwise noted. FulumdevehWmits. lMamatiat about develupmerftaffecting form W-9 Oich as legislation enacted after we release it) is at wwwJm9ov1&9. Purpose of For' n An ink or entity (Fom W-9 requester) who is required to Be an information return with the, IRS trust obtain your correct taxpayer identification number (nP4 which may be your social security number (S M indeviduai taxpayer identification number (Irlfi l), adoption taxpayeridertificatioa neunber (ATtN), or employer WoWficaftit number (EIN), to report on an irrt imation rehear the amount paid to you, or other amount reportable on an Wom ation return, l:xantples of:kdomration returrs "mckrdq but are not limed to, the tlowing: - Form t 99-INT Onterest earned or pakd) - Form 1099-ON jdividetift ioclo ftthose from stocks or mubuad ) - Form tOWMM (Various 413es of kreanre, prizes, awarft or gross proceeds) - Forth 1099-5 (stock or mutual fund sales and certain othertransaclims by, brurxers) • Form 1099 S (proceeds frarrr real estate tmnsactKx* • Fom 1 OWK (merchant, cmd and third party network transactions) gernernt (IRA}. and 'hart TIN. See the • Form tOtt8 thou rteortgage interestj.1098-E (student loan interest), 1OWT (&"-) • Form 1099-0 (wed deW • Form 1099-A (scgtisilffarorabandonment of seamed property) Use Form W-9 any if you are a U.S. person (inchxbV a resident allero, to provide your corr+eet'i7N ffyou dO riot rekon Form W-9tothe mgAs rwatha 1K you aright be&Ojed to bad ►r1N11rod **t See 140ar is bacho iw"x~ on page 2. By signing thefi6ed-+uct fwm.Yoe= 1. Certify dug the TiN you are g'r WQ Is cutest (or you are waiting for a number to he issued}. 2: Certify that, you are riot: subjeottabeckupwifticklin%or 3. Clam exemption from backup withholding 4 you are a U-14 exempt payee: tt applicable. You are also pwffyhV that as a U.S. pemm yaw aHocabte stare of any partnership income from a U.S. trade or business is notsubject to the withholding tax on fnraW pormerW share of effectively connected income. and 4. Certify that FATCA ixxhe(s) entered on this form Of any) lrtc5catiM that you are exempt fain the FATCA reportkig, Is.correct. See What is FAMA repot ft? on page 21afurthe(ir>i tmaWM Cat. No.10231X FWn W-9 (Rev.12-2014)