HomeMy WebLinkAboutMiller Mendel Inc; 2014-01-15;MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (this "Agreement") is made and entered into as of January
15,2014 ("Effective Date") between Miller Mendel Inc., a Washington corporation with an address at 1425
Broadway, #430, Seattle, WA 98122 ("MMI"), and the City of Carlsbad, a municipal corporation, for the benefit
of Carlsbad Police Department, a law enforcement agency within the state of California, with an address at 2560
Orion Way, Carlsbad, CA 92010 ("Client"). MMI and Client may each be referred to individually as a "Party" or
collectively as the "Parties."
BACKGROUND
A. MMI is a technology company with a principal market in offering software-as-a-service solutions to
governmental and private entities;
B. Client desires to license and use MMI's software system known as the "eSOPH" or "electronic Statement
Of Personal History." The eSOPH system (defined below) is a web-based software system designed and
developed to assist with pre-employment background investigations. The System allows Client to manage pre-
employment background investigations of persons who apply for employment with Client.
C. MMI is willing to allow Client and its Applicants to use the System in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration ofthe mutual promises and covenants herein contained, the Parties, each
intending to be legally bound hereby, do promise and agree as follows:
AGREEMENT
1. DEFINITIONS. Except for the terms defined below, all initially capitalized terms used in this Agreement
will have the meanings described within the text of this Agreement. As used herein, the following terms have
the following defined meanings:
1.1. "Applicant" means any authorized and registered end-user that accesses the System at the request of a
Client to input data for the purpose of Client's management of one or more pre-employment background
investigations.
1.2. "Applicant Data" means any data transmitted by Applicant to the eSOPH System.
1.3. "Authorized User" means any user who accesses the eSOPH System on behalf of Client and meets the
criteria set forth in Section 2.2. Authorized Users include without limitation, the Primary Administrative User
and any Applicant.
1.4. "Clienf means a registered user of the eSOPH System, under this Agreement.
1.5. "Client Data" means all data and other information provided by or generated in connection with a
Client's use ofthe eSOPH System, or otherwise exchanged between a Client and MMI or Applicant and MMI.
1.6. "Confidential Information" means information about a Party's business or financial matters, technical
information or any other proprietary information relating to a Party's respective operations, businesses,
technical know-how and financial affairs, that is obtained by the other Party as a result of the working
relationship between the Parties, whether obtained prior to or after the date hereof. Confidential Information
shall include,.without limitation, MMI Information (defined in Section 6.8 below), trade secrets, discoveries,
ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow
charts and any other technical, financial, business or proprietary information of any kind or nature whatsoever.
With the exception of Client Data and Applicant Data, Confidential Information shall not include any information
that: (a) was previously known to the Parties free of any obligation to keep it confidential; (b) is or has become
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publicly known, through no wrongful act of either Party; (c) was rightfully received from a third party who is
under no obligation of confidence to the receiving Party; (d) was independently developed by the Parties without
use of Confidential Information that has been disclosed pursuant to this Agreement; or (e) was required to be
disclosed in order to compfy with applicable law or regulation (including, without limitation, for securities law
purposes) or with any requirement imposed by any governmental or court order, but only to the extent so
required.
1.7. "Entry" has the meaning ascribed to it in Section 2.3.3.
1.8. "eSOPHSystem" means MMI's "electronic Statement Of Personal History" web-based software system
designed and developed to assist with pre-employment background investigations, and all related Software. The
eSOPH System allows MMI's clients to manage pre-employment background investigationsof persons who apply
for employment with Client.
1.9. "lntellectual Property Rights" means all intellectual property rights throughout the world, whether
existing under intellectual property, unfair competition or trade secret laws, or under statute or at common law
or equity, including but not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents, inventions,
designs, logos and trade dress, "moral rights," mask works, rights of personality, publicity or privacy, and any
other intellectual property and proprietary rights; and (ii) any registration, application or right to apply for any
of the rights referred to in this clause; and (iii) any and all renewals, extensions and restorations thereof, now or
hereafter in force and effect.
1.10. "License Period, Pricing and Other Client Specific Terms" ("LPPO") has the meaning ascribed to
it in Section 3.1, and as set forth in the attached Exhibit A.
1.11. "Primary Administrative User" means at least one employee of Client who is authorized to grant
initial eSOPH System login and password credentials to authorized employees or personnel of Client to facilitate
and assist in the pre-employment background investigations of Applicants and other administrative functions
necessary for Client and its Applicants to access and use the eSOPH System.
1.12. "Services" means, collectively, the provision of the eSOPH System in accordance with the SLA,
related professional services, and any other services to be provided by MMI to Client pursuant to this
Agreement.
1.13. "Service Level Agreement" ("SLA") means the service level obligations of MMI, and any
requirements of Client, related to the access, use, operation, availability and maintenance ofthe eSOPH System,
as set forth in the attached Exhibit B.
1.14. "Software" means the eSOPH System, related proprietary software owned by MMI, and any
third-party software required to operate the eSOPH System, all in machine readable, object code form, together
with all enhancements, modifications, corrections and amendments thereto.
2, eSOPH SYSTEM LICENSE
2.1. License Grant. MMI hereby grants to Client a revocable, limited license to access and use the eSOPH
System for the Term in accordance with the terms and conditions of this Agreement. MMI will provide the
eSOPH System to Client in accordance with the Service Level Agreement attached hereto as Exhibit B. as may
be updated from time to time by MMI.
2.2. Authorized User Designation. Client shall designate a Primary Administrative User of the eSOPH System
on the attached Exhibit A. The Primary Administrative User and any additional Authorized Users will either be
employees of Client, independent contractors whom Client relies on as part of its background investigation
process, or an Applicant. Client assumes and accepts all responsibility and all liability for each of Client's
Authorized Users, and any user whom the Client, or Client's Primary Administrative User, grants eSOPH System
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access, including all their actions or omissions while accessing and using the eSOPH System. Moreover, Client
assumes and accepts all responsibility and all liability for any unauthorized user who accesses the eSOPH System
on Client's behalf or from a connected computing device that is under the ownership or control of Client.
2.3.Set-Up and Use ofthe eSOPH System.
2.3.1. Upon MMI's receipt of Client's payment of the "Set-Up Fee" set forth in an applicable LPPO,
MMI will work with Client to establish Client's account on the eSOPH System and provide in-person training on
Client's access and use ofthe eSOPH System. Client- specific set-up Services may be described on an applicable
LPPO.
2.3.2. Upon first accessing the eSOPH System, all users, including without limitation Authorized Users,
will be required to accept MMI's terms of use and review and accept the MMI privacy policy before proceeding
further into the eSOPH System. Any user who does not agree to the MMI terms of use or MMI privacy policy
will not be granted further access to the eSOPH System. In the event of a conflict between the MMI terms of
use, MMI privacy policy, or this Agreement, this Agreement shall take precedence over both the MMI terms of
use and MMI privacy policy.
2.3.3. For each Applicant, the Primary Administrative User, or any Authorized User, must enter the
Applicant's legal name and other identifying information into the eSOPH System. This is considered an "Entry."
The Primary Administrative User, or Authorized User, may then grant access to the eSOPH System to the
Applicant, who may use it to submit information to assist Client in executing its background investigation of
such Applicant. The Primary Administrative User and Authorized Users may access and use the eSOPH System
for the purpose of adding information, and accessing and reviewing information submitted by Applicant(s).
2.3.4. The Primary Administrative User, any Authorized User and any Applicant must be at least 18
years of age and must be capable of entering into legally binding agreements on behalf of Client or themselves.
2.4, Restrictions on Use.
2.4.1. Client is strictly forbidden from entering at any time fictitious data (e.g., names, social security
numbers, addresses, phone numbers or other data) into the eSOPH System for "testing," "training," or any other
purpose. Client agrees to take the necessary steps to ensure its Primary Administrative User and any Authorized
Users do not enter fictitious data into the eSOPH system. MMI reserves the right to assess reasonable fees to
Client for the removal of any fictitious data entered by any of the Client's Primary Administrative User or
Authorized Users, payable by Client to MMI within thirty (30) calendar days of an invoice date for such fees.
2.4.2, Client may only use the eSOPH System to aid in pre-employment background investigations for
those Applicants who have applied for employment or a volunteer position within the Client's specific
government agency (e.g., state government, township, county, city, and village). Client may not use the eSOPH
System on behalf of other government agencies or parties. MMI reserves the right to assess a $100.00 fee, per
Entry, for violation of this term, payable by Client within thirty (30) calendar days of an invoice date for such
fees.
2.5. Acknowledgment of Limited License Rights.
2.5.1. Client shall have only the rights specifically granted by MMI under this Agreement. No
additional rights are granted or may be inferred. Client acknowledges and agrees that it does not have any right
to: (i) make any modifications to any portion ofthe eSOPH System except as approved in writing by MMI; (ii)
attempt to reverse engineer, disassemble, reverse translate, decompile, decode or copy any portion of the
eSOPH System; (iii) remove any patent, trademark, service mark or copyright notices which MMI places on the
eSOPH System; or (iv) take any other actions inconsistent with the limited rights granted by this Agreement.
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2,5,2, Client shall immediately notify MMI of any activity which may constitute infringement or
attempted infringement of MMI's rights in and to the eSOPH System, including violations of intellectual property
law(s). Client shall provide MMI with all reasonable assistance necessary or desirable for MMI to protect any of
its rights, including without limitation its Intellectual Property Rights, in connection with the eSOPH System and
agrees, upon written request from MMI, to furnish any and all records and information regarding the party
suspected of infringement.
2.6.System Updates. The eSOPH System may be updated on an as-needed basis by MMI or MMI contracted
service providers. Client may need to update its Internet browsers, connections, Internet service, and some
hardware from time to time to permit ongoing compatibility with the eSOPH System. MMI will make every effort
to assure uptime in accordance with the Service Level Agreement attached hereto as Exhibit B; however, this is
not guaranteed and system, software and equipment updates, including third party applications and systems
may cause the eSOPH System and Service to be unavailable. To the extent possible, MMI planned software and
equipment updates will be scheduled during hours least likely to affect service to Clients, generally late evening,
or early morning hours, as set forth in the attached Exhibit B.
3, FEES AND PAYMENT.
3.1. License Fees. Client will pay to MMI the set-up fee and periodic license fees for each designated license
period set forth in a "License Period, Pricing and Other Client Specific Terms" (referred to sometimes herein as
an "LPPO"), a form of which is attached to this Agreement at Exhibit A. A new or amended LPPO form shall be
executed by the Parties for each designated license period during the Term. All payments made to MMI by
Client will be in USD.
3.2.lnvoices. Unless otherwise noted in this Agreement or Exhibit A, MMI will issue a single, summary
monthly invoice for any fees owing to MMI by Client. All taxes, pre-approved expenses and other charges, if
applicable, will be listed on the invoice as a separate item. All invoices will be in USD. The Parties agree that the
terms and conditions of this Agreement will supersede any conflicting or additional terms set forth in any
invoice. Client will pay all valid and undisputed invoices within thirty (30) calendar days of the date of receipt
thereof.
3.3. Disputes. Client will notify MMI of any disputed charges in writing, within fifteen (15) days. MMI and
Client will attempt in good faith to resolve any disputed amounts. If the Parties agree that Client will pay the
disputed amounts, MMI will re-invoice that amount and Client will pay all such amounts to MMI within thirty
(30) calendar days ofthe date of receipt ofthe reissued invoice.
3.4. Interest on past due amounts. MMI may charge interest on any overdue invoices in the amount of 18%
per annum or the maximum amount permitted by applicable law, whichever is less. Client shall also pay or
arrange exemption from any taxes, charges, or other fees imposed on its use of the eSOPH System (other than
taxes on MMI's income), including any applicable sales and/or use tax.
3.5. Failure to Pay. If Client fails to pay any sums when due, MMI may, in its sole discretion: (a) cease to
perform any and all of its obligations under this Agreement; (b) if applicable, terminate any and all of Client's
access to the eSOPH System, including access of its Authorized Users and Applicants, in whole or in part; and/or
(c) exercise other remedies available to MMI.
4, TERM AND TERMINATION
4.1, Term. This Agreement will become effective as of the Effective Date set forth above, and will continue
until terminated in accordance with Section 4.2 below (the "Term").
4.2, Termination.
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4.2.1, Either Party may terminate this Agreement for any reason upon sixty (60) days prior written
notice to the other Party. Upon termination, MMI will not issue any refunds to Client for payments made
pursuant to Section 3 of this Agreement, and Client is responsible for paying in full, within thirty (30) calendar
days of invoice, all undisputed invoices and all amounts outstanding under any current License Period, Pricing
and Other Client Specific terms form.
4.2.2, MMI may terminate this Agreement immediately upon any breach by Client of Section 3 (Fees
and Payments), Section 2.4 (Restrictions on Use), or Section 2.5 (Acknowledgement of Limited Rights); or if
Client or any of its Authorized Users violates MMI's Intellectual Property Rights
4.2.3, Either Party may terminate this Agreement immediately upon written notice to the other Party
in the event the other Party: (a) becomes insolvent; (b) makes an assignment for the benefit of creditors; (c)
files a voluntary bankruptcy petition; (d) acquiesces to any involuntary bankruptcy petition; (e) is adjudicated
bankrupt; (f) ceases to do business; (g) or other reason amounting to any violation of law connected to the use
ofthe eSOPH System.
4.2.4, Without limiting the Parties respective rights in Sections 4.2.2 and 4.2.3 above, either Party may
terminate this Agreement in the event that the other Party breaches this Agreement, if the breaching Party
does not cure such breach within thirty (30) days after receiving written notice from the non-breaching Party.
If either Party gives notice to the other for substantially the same breach three (3) times during a twelve (12)
month period, the non-breaching Party may terminate this Agreement immediately upon receipt ofthe third
notice by the breaching Party.
4.2.5, A Party's termination of this Agreement under this Section 4.2 does not limit either Party from
seeking other appropriate legal remedy for any breach.
4.3. Effect of Termination. In the event of termination hereunder, MMI will not issue any refunds to Client
for payments made pursuant to Section 3 of this Agreement, and Client is responsible for paying in full all
undisputed invoices upon termination. Client may continue to access the information for previously entered
Applicants in the eSOPH System for a period of thirty (30) calendar days, at no additional charge while Client
exports its Applicant Data from the eSOPH System. After the thirty (30) days, MMI reserves the right to charge
up to $10.00, per month, per GB, for data storage fees for continued storage of Client's Data, from any ofthe
current and previous license terms, provided Client requests MMI retain the data on the eSOPH System. If
Client does not pay any such data storage fee(s) within thirty (30) calendar days of each due date set by MMI,
MMI may, at MMI's sole discretion, permanently delete Client's Data, revoke Client's access to the eSOPH
System, or both.
4.4. Upon termination or expiration ofthis Agreement, Sections 1, 2.5, 3.3,4.2-4.5, 5, 7, 8, 9,11 and 12 will
survive.
5, DATA ACCESS. CONFIDENTIALITY AND SECURITY
5,1,Client is responsible for all use of its account(s) on the eSOPH System. This includes its Primary
Administrative User, Authorized Users and Applicants' accounts and their respective actions on and use ofthe
eSOPH System. Client shall ensure that its Authorized User(s) properly control and limit access to the eSOPH
System to Client's appropriate Authorized Users, and that Client's Primary Administrative User, Authorized
Users and Applicants properly protect their logins, passwords and all other login credentials to prevent
unauthorized access and misuse of Client Data, Applicant Data and any other information that may be accessed
through the eSOPH System. Client is responsible for its own policy regarding Authorized Users changing their
passwords, minimum password complexity requirements beyond what is required by the eSOPH System, and
which computer terminals may be used to access the eSOPH System by its Authorized Users, including any
unattended devices or computers logged into the eSOPH System. Client shall ensure any previous Authorized
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User who no longer has a valid purpose to access the eSOPH System will have their eSOPH System login
credentials disabled within the eSOPH System. Former employees or contractors who separate from their
employment or relationship with Client shall have their login credentials immediately disabled, without delay,
by Client.
5.2. MMI maintains no control or access to the information and materials submitted by Applicants or used
by the Client on the eSOPH System. The scope, content, format and other details of such information and
materials are within the exclusive control of Client, and its Authorized Users and Applicants. Any pre-loaded
content on the eSOPH System may be used only when Client accepts all risk and responsibility for use of such
content.
5.3. The eSOPH System allows Client to share Applicant Data and other information about Applicants within
the eSOPH System. If Client shares Applicant Data or other information about an Applicant from, or connected
to the eSOPH System, Client must: (i) possess valid, signed authorization from each Applicant whose Applicant
Data or information is to be shared, legally adequate to authorize Client to share such Applicant Data or
information, (ii) refrain from violating any law, policy, term or rule by sharing, transmitting or otherwise
disclosing such Applicant Data or information, and (iii) keep the Applicant Data and information secure and
private in accordance with any and all applicable privacy laws, and other legal requirement(s) and obligation(s).
5.4. Client acknowledges and understands a valuable part of the eSOPH System is the ability for Client to see
if an Applicant has been entered into the eSOPH System by other MMI client(s). If Client enters an Applicant into
the eSOPH System via their name or other identifiers including SSN, the eSOPH System will disclose if any other
MMI client has previously entered the same Applicant into the eSOPH System. Applicant Data or any related
information produced to other MMI clients is limited to: agency name, position applied for, entered date, and
closed date. The eSOPH System will also display the point of contact for any other agency(s) that have previously
entered information regarding the Applicant into the eSOPH System. Further information regarding another
agency's entry of an Applicant must be gained through that agency's permission and their own established
process.
5.5. In the event MMI learns of a data security breach, MMI will make every effort to notify Client within 24-
hours of learning of the breach. Notification will be made to the Client's Primary Administrative User or
representative listed in Section "a" or Section "c" of Exhibit A to this Agreement, via telephone, and also email.
Notifications will only be made when an actual breach has occurred; if the data is encrypted, no breach has
occurred and no notification will be made. At the request of Client, and only with Client's cooperation and
assistance, MMI will work together with law enforcement and other personnel in connection with the
unauthorized access into the eSOPH System. MMI takes the privacy and security of data very seriously and works
diligently to ensure all data is properly and adequately protected.
5.6. The Parties acknowledge that each Party may be given access to certain Confidential Information under
this Agreement and via the eSOPH System. Each Party disclosing Confidential Information to the other Party in
a tangible medium (e.g., a paper or disk) will mark such medium as containing Confidential Information.
Confidential Information that is disclosed orally will be identified as confidential at the time of disclosure and
will immediately be reduced to writing. Notwithstanding the foregoing. Confidential Information will also include
information, which, due to its character or nature, reasonable people in a like position and under like
circumstances would treat as confidential. All Confidential Information will be the sole and exclusive property of
the Party providing such information, and the receiving Party will not have any ownership interest in such
information or engage in any derivative uses of such information. Each Party agrees that during the Term of this
Agreement and for five (5) years thereafter (and with respect to personally identifiable information and trade
secrets, indefinitely), the receiving Party must (a) use at least the same degree of care to prevent unauthorized
use and disclosure of such Confidential Information as that Party uses with respect to its own confidential
information (but in no event less than a reasonable degree of care); (b) use such Confidential Information only
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in performance of its obligations under this Agreement; and (c) not disclose or grant access to such Confidential
Information to any third party, without the express prior written consent ofthe disclosing Party. This section will
not apply to any information (a) previously known to the receiving party free of any obligation to keep it
confidential, (b) which becomes generally available to the public through no wrongful act; (c) that is rightfully
received from a third party under no obligation of confidence to such third party; (d) that is independently
developed by the receiving party without reference to information which has been disclosed pursuant to this
Agreement or (e) that is required to be disclosed in order to comply with applicable laws, regulations or orders
(including, without limitation, state and federal securities laws applicable to either Party) or administrative
process or any governmental or court order; provided, however, that in a circumstance in which disclosure is
compelled by governmental or court order, the Party that is subject to such compelled disclosure must limit the
disclosure to only that information (including redaction of Pll, wherever possible, that must be disclosed to
comply with the order and will give the other Party prompt prior notice of such compelled disclosure so that the
other Party may seek to protect such information. The receiving Party must return, or at the disclosing Party's
option, destroy (and certify in writing such return or destruction) any and all Confidential Information to the
disclosing party upon any termination of this Agreement and upon request of the disclosing Party. This section
will survive termination ofthis Agreement.
5.7. Client owns all Client Data entered into the eSOPH System by its Authorized Users, including Applicant
Data entered in response to the Client's request for information to process an Applicant's background
investigation.
5.S. Without limiting Client's rights to Client Data and Applicant Data under Section 5.7, MMI may retain and
store the following data: Applicant name. Applicant telephone number. Applicant mailing address. Applicant
email address. Applicant SSN, Applicant date of birth, date the Applicant entered into the eSOPH System,
Applicant's background investigation close date, position Applicant has applied for with Client, and the legal
agreements (e.g., MMI's terms of use and privacy policy) related to any Authorized User's or Applicant's use of
the eSOPH System.
5.9. During the Term ofthis Agreement, MMI will store and maintain Client Data and Applicant Data for use
and access by Client and its Authorized Users under the terms of this Agreement and the SLA. MMI will ensure
industry standard data encryption methods are in place for storage of Client Data and Applicant Data, and
comply with applicable HIPAA regulations, the PCI Standard (defined below), and SOX. MMI will implement and
maintain a disaster recovery plan that ensures that Client Data and Applicant Data within the eSOPH System is
capable of being recovered, and that the integrity of all such recovered Client Data and Applicant Data is
retained, in the event that MMIs network, systems or other facilities experience a security breach or any
significant interruption or impairment of operation or any loss, deletion, corruption or alteration of data
("Disaster Recovery Plan"). In accordance with the SLA, MMI will conduct periodic internal information security
audits of its data center(s) and Disaster Recovery Plan, and, upon Client's reasonable written request, will
provide certified reports ofsuch audits to Client when legally permissible.
5.10. If Client will request or have access to credit card information. Client represents that it is
presently in compliance with, and will remain in compliance with, an approved version of the Payment Card
Industry Data Security Standard, developed and published jointly by American Express, Discover Financial
Services, JCB, MasterCard Worldwide and Visa International ("Card Issuers") or the PCI Security Standards
Council (the "Council"), as applicable, for protecting individual numbers used to identify credit and debit card
accounts and other personally identifiable information relating to the use of such credit and debit card accounts
("Cardholder Information"), as the same may be amended, updated, replaced or augmented by the Card Issuers
and the Council (the "PCI Standard"). Client acknowledges that it may, in connection with performing its duties
in accordance with this Agreement, have access to, or be provided. Cardholder Information. Client may not
commit any act or omission that causes MMI to violate the PCI Standard or to be fined, sanctioned or penalized
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by Card Issuers, the Council or any third party for the failure to properly protect, secure, maintain, use and store
Cardholder Information. Client further acknowledges and agrees that, as between Supplier and MMI, all
Cardholder Information is, and vyill remain, owned by MMI, Client further acknowledges and agrees that Client
is responsible for the security of Cardholder Information that it possesses or controls.
6. WARRANTIES.
6.1. Client represents and warrants that:
6.1.1, Client has full right, power and authority to enter into and perform its obligations according to
the terms ofthis Agreement;
6.1.2, The Client Data does not and will not infringe or misappropriate any copyright, patent, trade
secret, trademark, or other proprietary right held by any third-party and is free of any lien, claim, security interest
or encumbrance; and
6.1.3, Neither Client nor any of its employees has received, offered or provided, nor will it receive,
offer or provide, directly or indirectly, any gift, gratuity, favor, entertainment, loan or other thing of monetary
value to any employee or agent of MMI as an inducement to do business with MMI. Client further warrants its
Authorized Users have not, and will not engage in any collusion with any other potential supplier to secure this
Agreement.
6.2, MMI represents and warrants that:
6.2.1, MMI has full right, power and authority to enter into and perform its obligations according to
the terms of this Agreement;
6.2.2, To MMI's knowledge, the Software complies with all applicable national, state, and local laws
and regulations and, to MMI's knowledge, does not contain any material that infringes, violates, or
misappropriates the Intellectual Property Rights of any third party, and (ii) to the extent the Software contains
any materials subject to third party rights, MMI has obtained any and all necessary clearances, releases,
approvals or consents from third parties and make any and aii required payments to third parties (including
without limitation to unions or guilds) so that Client and its Authorized Users can exercise the rights and licenses
authorized under this Agreement.
6.2.3. For the Term of this Agreement, the eSOPH System will operate in conformance with any
represented specifications and in accordance with this Agreement, including the Service Level Agreement
attached hereto at Exhibit B. MMI's sole obligation to Client under this warranty is to correct the eSOPH System
so it will perform within any represented specifications or refund the related license fee, whole or in part. This
warranty is void if any unauthorized modifications are made to the eSOPH System or if the eSOPH System is not
used in compliance with the terms of this Agreement;
6.2.4. Except for the limited warranty provided in this Agreement, the eSOPH System and any other
MMI products and services are provided "As Is" and MMI disclaims all warranties, express or implied, that may
arise either by the Parties' agreements or by operation of law, including without limitation any warranty of
merchantability or fitness for a particular purpose. MMI does not warrant the operation of the eSOPH System
shall be error or "bug" free or that the eSOPH System will meet the requirements or expectations of Client, its
Authorized Users or Applicants.
6.3. Any breach or failure with respect to the representations and warranties contained in this
Agreement will constitute a material breach of this Agreement.
7, LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, A BREACH OF
CONFIDENTIALITY, SECURITY, OR WARRANTY OR THE NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY,
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IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY OTHER PERSON IN ANY WAY RELATED TO THE
AGREEMENT, THE PERFORMANCE OF ANY WORK PURSUANT TO THIS AGREEMENT, OR USE OF ANY SYSTEM,
WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF THE OTHER PARTY OR ANY
OTHER PERSON HAS BEEN ADVISED OF, OR COULD HAVE REASONABLY FORESEEN, THE POSSIBILITY OF SUCH
DAMAGES.
8. INDEMNIFICATION.
8.1. Client shall defend, indemnify, and hold harmless MMI and its affiliates, directors, officers,
employees and agents, from and against any and all claims, costs, losses, damages, liabilities, judgments and
expenses (including without limitation reasonable attorneys' fees) arising out of or in connection with any breach
of this Agreement by Client or its Authorized Users (including without limitation any claim that, if true, would
constitute a breach of Client's warranties); Client's or any of its Authorized Users' sole negligence or willful
misconduct; or Client's or any of its Authorized Users' sole negligent actions or omissions. Client will not enter into
any settlement involving third-party claims that contain any admission of or stipulation to any guilt, fault, liability
or wrongdoing by MMI or that adversely affects MMI's rights or interests, without MMI's prior written consent,
which shall not be unreasonably withheld, MMI will promptly notify Client of any third-party claim subject to
this Section of which it becomes aware. Client will be entitled to control the defense or settlement of such claim
(with counsel reasonably satisfactory to MMI), provided that MMI will, upon requesting indemnification
hereunder: (a) provide reasonable cooperation to Client in connection with the defense or settlement of any
such claim, at Client's expense; and (b) be entitled to participate, but not control, in the defense of any such
claim. Client's obligations under this Section will not apply to the extent the Software infringes or
misappropriates any third-party intellectual property solely as a result of Client's use of the Software in
accordance with the terms ofthis Agreement.
8.2. MMI shall defend, indemnify, and hold harmless Client and its affiliates, directors, officers,
employees and agents , from and against any and all claims, costs, losses, damages, liabilities, judgments and
expenses (including without limitation reasonable attorneys' fees) arising out of or in connection with any breach
of this Agreement by MMI (including without limitation any claim that, if true, would constitute a breach of
MMI's warranties); MMI's sole negligence or willful misconduct; MMI's negligent actions or omissions; or as a
result of claims that the Service infringes any patent and those claims arise from MMI's breach of this
Agreement. This indemnity shall be subject to the same procedural requirements as Client's indemnity set forth
in Section 8.1, except that the roles of the Parties shall be reversed.
9. CORRECTIVE ACTIONS, Without limiting Client's obligations under Section 8, if all or any part of the
Software is held, or MMI determines that it could be held, to infringe, wrongfully use or misappropriate any
third-party intellectual property right, MMI at no cost to Client: (a) will procure for Client the right to continue
using the eSOPH System in accordance with its rights under this Agreement; (b) replace the item with a
substantially equivalent item that does not infringe, wrongfully use or misappropriate any third-party intellectual
property rights; or (c) modify the item (without material loss of functionality) so that it no longer infringes,
wrongfully uses or misappropriates any third-party intellectual property right. If MMI is unable to successfully
accomplish any ofthe actions described above after using its commercially reasonable best efforts to accomplish
each of them in a timely manner, then MMI will refund to Client a pro-rated amount ofthe license fees paid by
Client hereunder in connection with the unused portion of its licensed rights to the eSOPH System under this
Agreement.
10. INSURANCE.
10,1, Throughout the Term, Client, at its sole expense, will carry and maintain the appropriate type
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 9 OF 17
Version: January 1, 2014
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
and level of insurance to fulfill and maintain its obligations and duties under this Agreement.
10,2, Throughout the Term, MMI, at its sole expense, will carry and maintain: (a) Commercial General
Liability Insurance in the amount not less than $1,000,000 combined single limit per occurrence, $2,000,000
aggregate; (b) Stop Gap/Employer's Liability Insurance in the amount not less than $ 1,000,000 per incident; (c)
Professional Liability Insurance in the amount not less than $1,000,000 per claim and in the aggregate; and (d)
"Data Security " Insurance in the amount not less than $1,000,000 combined single limit occurrence, $2,000,000
aggregate.
11. NOTICES. All notices and requests in connection with this Agreement will be deemed given as of the day
they are received either by messenger, delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested, and addressed to MMI or Client at the address in the
preamble of this Agreement or as otherwise specified in Exhibit A.
12. GENERAL TERMS AND CONDITIONS.
12.1. Assignment. Client may not assign this Agreement without the prior written consent of MMI,
which consent may be withheld in MMI's sole discretion. MMI may assign in whole or in part its rights or duties
under this Agreeriient without prior notice to Client. Subject to this Section, this Agreement will inure to the
benefit of and be binding upon the heirs, successors, subcontractors, and assigns ofthe respective parties.
12.2. Compliance With Laws. Client will, at its expense, obtain all permits and licenses, pay all fees,
and comply with all federal, state and local laws, ordinances, rules, regulations, codes and orders applicable to
Client's performance under this Agreement, or to Client as an employer.
12.3. foxes. If the Internal Revenue Service or any other state or local agency determines that Client
is a common law employee of MMI and therefore subject to withholding and payroll taxes (e.g., federal income
tax, FICA, FUTA, etc), Client will fully indemnify MMI for all such withholding and payroll taxes, and associated
interest and penalties, if any, assessed against MMI in connection with such determination. If taxes are required
to be withheld on payments made hereunder by any U.S. (state or federal) or foreign government, MMI may
invoice Client for such taxes to be paid to the appropriate taxing authority.
12.4. Construction. If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, then that provision ofthe Agreement will be enforced to
the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement
will continue in full force and effect. No waiver of any breach of any provision of this Agreement will constitute
a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no
waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or against either party.
12.5. Governing Law; Jurisdiction; Attorney's Fees. This Agreement will be governed by, and construed
in accordance with, the laws ofthe state of Washington as applied to contracts performed therein but without
reference to its choice of law rules. This Agreement will not be governed by the United Nations Convention on
Contracts for the International Sale of Goods, the application of which is expressly disclaimed. In any dispute
concerning or arising under this Agreement or any transaction relating hereto, the prevailing party will be
entitled to reasonable attorneys' fees and costs.
12.6. Headings. The headings and sections in this Agreement and any exhibit are for convenience and
will not be construed to define or limit any of the terms or affect the meaning or interpretation of this Agreement
and any exhibit.
12.7. Independent Contractor. MMI and Client are independent contractors under this Agreement,
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 10 OF 17
Version: January 1, 2014
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
and nothing in this Agreement may be construed to create a partnership, joint venture, franchise or agency or
fiduciary relationship between them. Neither Party has any authority to enter into agreements or make any
representations of any kind on behalf of the other Party.
12.8, Nonexclusive Agreement. It is expressly understood and agreed that this Agreement does not
grant to Client any exclusive privileges or rights, and MMI may contract with other clients and customers.
12.9, No Publicity/Advertising. Either Party may use the other Party's name, issue a press release or
general marketing communication concerning this Agreement, Client's relationship with MMI, or any other
matter concerning the Parties, upon mutual agreement ofthe Parties prior to any such public disclosure or other
third-party communication,
12.10, Counterparts. This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument. The parties agree
that any facsimile copy, including those exchanged electronically as a .pdf, of a signed counterpart of this
Agreement will be treated the same as a signed original of this Agreement.
12.11, Entire Agreement. This Agreement together with any exhibits attached hereto contains the
entire understanding of the Parties with respect to the transactions and matters contemplated herein,
supersedes all prior and contemporaneous agreements or negotiations between Client and MMI concerning the
subject matter hereof, and cannot be amended except by a writing dated subsequent to this Agreement and
signed by both Parties. To the extent the terms and conditions of this Agreement conflict with the terms and
conditions of an exhibit, the terms and conditions ofthis Agreement will control. No course of dealing or usage of
trade may be invoked to modify the terms and conditions of this Agreement.
12.12, Copies Shall Be Considered Originals. Any complete, legible signed copy of this Agreement shall
be considered an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective duly
authorized representatives.
Miller Mendel Inc.
1425 Broadway, #430
Seattle, Washington 98122
By:
Name: Tyler Miller
Title: CEO
Date: January 15, 2014
Carlsbad Police Department
2560 Orion Way_
Name:
Title:
Date: i (s- 9 / \
For Miller Mendel Inc, copy of Notice(s) to:
Rylander & Associates
406 W, 12*'' Street
Vancouver, WA 98660
For Client, copy of Notice(s) to:
Carlsbad Police Department, Attn: IT Manager
)n Way OFFICIAL SEAL
MATTHEW S CRAMdsbafit, CA 92010
NOTARY PUBUC-OREGON
COMMISSION NO, 477261
*£C£9i^IMISSI0N EXPIRES APRIL 07.2017
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT
Version: January 1, 2014
PAGE 11 OF 17
INDIVIDUAL ACKNOWLEDGMENT
mm
Ore State/Commonwealth of
County of ^^~^/iA>n.i^,^
1 cn } SS.
On this the day of.
Day
O.OI'-/ before me,
'on\h Year
personally appeared
Name of Notary Public
_, the undersigned Notary Public,
Name(s) of Signer(s)
• personally known to me - OR -
/:Slproved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument, and acknowledged to me
that he/she/they executed the same for the purposes
therein stated.
WITNESS my hand and official seal.
OFFICIAL SEAL
MATTHEW S CRANE
NOTARY PUBUC-OREGON S
COMMISSION NO, 477261 « .^C^JMISSI0ND(PIRE^ 2017 Signature of Notary Public
Place Notary Seal/Stamp Above
Any Other Required Information
(Printed Name of Notary, Expiration Date, etc.)
OPTIONAL
Not required by law, this information can be useful to those relying on the document
and prevent fraud.
Description of Any Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
RIGHT
THUMBPRINT
OF SIGNER #1
Top of thumb here
RIGHT
THUMBPRINT
OF SIGNER #2
Top of thumb here
' 20/0 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #15936
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
Approved as to form:
Celia A. Br^^^, City Attorney
3. Effmonson
Assistant City Attorney
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT
Version: January 1, 2014
PAGE 12 OF 17
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
EXHIBIT A
TO
MILLER MENDEL, INC. (MMI) MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT "AGREEMENT"
LICENSE PERIOD, PRICING AND OTHER CLIENT SPECIFIC TERMS
Unless otherwise defined herein, all capitalized terms in this Exhibit A shall have the same meaning given to
them in the Agreement.
1) Client Name and Details
Name: Citv of Carlsbad
Contact: Lieutenant Mickey Williams
Address: 2560 Orion Way
Email: Mickey,WilliamsOCarlsbadca.gov
Office #: (760) 931-2157
Carlsbad. CA 92010 Cell #: (760) 450-4539
2) Client's Primary Administrative User
Name: Training Coordinator Jane Meadows
Email: Jane.Meadows@carlsbadca.gov
Office #: (760) 931-2181
Cell #:
3) Authorized Branch or Department of Client to Use the Svstem:
Police Department
4) License Period, Price, Set-Up, Entry Volume, & Included Data Storage
License Period• . Period Begins Price for Entries Set-Up Fee Included Data Storage for Period
12 Months 1/30/2014 $8,600.00 for 200 Entries $4,000.00 3.5 GB
4,1 Client Set-up. Upon receipt of payment ofthe Set-Up Fee listed above, MMI will begin the set-up process
of Client on the eSOPH System in accordance with the terms of the Agreement.
4,2 Entries.
(i) In the event Client uses all of its included Entries for this License Period, Client may purchase
additional Entries for this License Period, however entries added during a License Period will cost more, per
entry. The cost increase covers MMI administrative expenses, such as billing.
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT
Version: January 1, 2014
PAGE 13 OF 17
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
(ii) Client may carry over their unused Entries from this current License Period to a single adjoining
License Period, so long as; (i) Client purchases at least 50% new entries for the License Period (of the total of
entries purchased in this present License Period); and (ii) Client pays the license fee for the second License Period
on or before the last day ofthe above-referenced License Period. Otherwise, all Entries in the current License
Period will expire on the last day of that License Period. No more than 30% of the total Entries included in the
current License Period may be carried over. In example: Client buys 200 entries for the current License Period
and only uses 120 of those entries by the end ofthe License Period. Client must purchase at least 100 entries for
the next License Period, which will then permit 60 (30% of 200 Entries) of the remaining 80 Entries from the
current License Period to carry over, for a total of 160 Entries (100 purchased + 60 carried over) for the following
License Period,
4.3 Data Storage Overage
(i) Data storage space used over the amount specified in "Included Data Storage" during the above
listed License Period will be charged at the following rate: No more than $10.00 per 1 Gigabyte (GB), per
month. Billing intervals for Data Storage will be done at the discretion of MMI, but not more often than every
three (3) months.
(ii) Storage of any Client Data, Applicant Data, or other Client information beyond this License
Period will be billed to Client at no more than $10.00 per 1 Gigabyte (GB), per month. For clarity, the Included
Data Storage listed in the table above, is included for no additional charge, but only for the duration of this
License Period,
4.4 The prices set forth in this LPPO are for this License Period only. MMI reserves the right to change its
pricing for, without limitation. Entries and data storage in subsequent LPPOs.
Client will pay all invoices hereunder in accordance with Section 3 ofthe Agreement,
Agreed to and signed bv the Parties:
Miller Mendel Inc,
1425 Broadway, #430
Seattle, Washington 98122
Carlsbad Police Department
2560 Orion Way
Carlsbad, California 92010
By:
Name: Tyler Miller
Title: CEO
Date: January 15, 2014
Name: &AJGZ^ t>/V^gipfc^i^c»J
Title: ^-H.v\g<a Pe:>\ut,<JS,
Date:
AS to FORM
PAULGTEDRieNSOIf
AssistOTtCltyAtlomflar
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT
Version: January 1, 2014
PAGE 14 OF 17
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
EXHIBIT B
TO
MILLER MENDEL, INC. (MMI) MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT ("AGREEMENT")
SERVICE LEVEL AGREEMENT
1, Goals & Objectives, The purpose of this Service Level Agreement ("SLA") is to ensure that the proper
elements and commitments are in place to provide consistent IT service support and delivery to the Client by
MMI regarding Client's access and use ofthe eSOPH System. The goal of this SLA is to obtain mutual agreement
for service provision between the Client and MMI, The objectives of this SLA are to:
• Provide clear reference to service ownership, accountability, roles and/or responsibilities;
• Present a clear, concise and measurable description of service provision to Client; and
• Match perceptions of expected service provision with actual service support & delivery.
All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.
2. Service Agreement, The following detailed service parameters are the responsibility of MMI in the
ongoing support of this SLA.
2.1 Serv/ce Scope, The following Services are covered by this SLA:
• Telephone support
• Email support
• Remote assistance using Remote Desktop, when and where available
• Planned or Emergency Onsite assistance (MMI may charge for)
• eSOPH System monitoring
• Notifications
• Response times
• Data Security
2.2 Client Requirements. Client's responsibilities and requirements in support of this SLA include:
• Payment for all support costs at any agreed rate and interval in accordance with an effective "License
Period, Pricing, and Other Client Specific Terms" form;
• Reasonable availability of Client representative(s) when resolving a service related incident or request;
and
• Using compatible hardware and software, and updating hardware, software and related settings as
needed to ensure ongoing compatibility,
2.3 MMI Requirements. MMI's responsibilities and requirements in support ofthis SLA include:
• Meeting response times associated with service related incidents;
• Appropriate notification to Client for all scheduled maintenance;
• Appropriate notifications to Client for any unplanned service outage; and. ^
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 15 OF 17
Version: January 1, 2014
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
Applying such service credits as are due pursuant to this Service Level Agreement under Section 3,4,
2,4 Service Assumptions. Assumptions related to in-scope services and/or components include:
• Changes to services will be communicated to Client via electronic communication (email or web feature).
3. Service Management, Effective support of in-scope services is a result of maintaining consistent service
levels. The following sections provide relevant details on service availability, monitoring of in-scope services (set
forth in Section 2.1 of this SLA) and related components:
3.1 Support Availability. Coverage parameters specific to the service covered in this SLA are as follows:
(i) Telephone support:
(1) Provided between the hours of: 9:00 A.M. to 5:00 P.M., PST Monday through Friday, excluding
US federal holidays.
(2) Telephone support also excludes any period where landline and/or cellular service is unavailable
due to service outage of MMI's provider(s) of such service,
(3) Client will be provided a mobile number for customer support for the hours outside of those
listed above. MMI will make every effort to respond to customer service requests outside ofthe
hours listed above,
(4) It will not be considered a breach of this SLA if a Client service request goes unanswered outside
the regular business hours listed above,
(5) If no answer from MMI on first call. Client will leave a voicemail, or email MMI so MMI can
contact Client as soon as possible,
(ii) Email support:
(1) Provided between the hours of: 9:00 A,M. to 5:00 P.M, Monday - Friday, excluding US federal
holidays,
(2) Email support also excludes any period where email, internet or cellular service is unavailable
either due to email service outage by MMI's provider(s) ofsuch service, or service is unavailable
due to travel, or similar event,
(3) Client will be provided an email address and mobile number for Client support for the hours
outside of those listed above. It will not be considered a breach of this SLA if Client service
requests go unanswered outside the regular business hours listed above,
(iii) Email address and phone numbers for support will be kept up-to-date and listed on a page within
the eSOPH System that is made available to Client and its Authorized Users,
3.2 Outages. MMI is not responsible, and it will not be considered a breach of this SLA, if any part of the
eSOPH System or Service becomes unavailable or functions incorrectly as a result of any aspect outside of the
control of MMI, including, without limitation, problems (to the extent not caused by MMI) with MMI's service
providers used to assist in the provision and delivery of the eSOPH System and related Service(s), natural
disasters, acts of terrorism, labor strikes, or the like,
3.3 Service Requests.
(i) In support of Services described in this SLA, MMI will respond to service related incidents and/or
requests submitted by the Client within the following time frames:
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 16 OF 17
Version: January 1, 2014
MILLER MENDEL INC. PROPRIETARY AND CONFIDENTIAL
• Within three (3) hours for issues client reasonably classifies as High priority.
• Within twenty-four (24) hours for issues reasonably classified by client as Medium priority.
• Within seventy-two (72) hours for issues reasonably classified by client as Low priority.
(ii) Client shall include the priority level in the subject line of any email sent to MMI reporting a
service problem.
(iii) Client acknowledges reported problems may be as a result of their own hardware, software, or
settings, in which MMI has no control or responsibility over.
(iv) MMI reserves the right to reasonably reclassify the priority of an incident, when received from
Client.
(v) Hours stated are for normal working hours (i.e., 9am to 5pm, PST Monday through Friday,
excluding US federal holidays). Consistent with Section 3.1, every effort will be made to respond to issues
High and Medium priority issues, outside of normal working hours.
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 17 OF 17
Version: January 1, 2014