HomeMy WebLinkAboutPredPol; 2013-10-31;hazards to the security or integrity of Customer Data and protect against unauthorized access to
or use of Customer Data.
4.3 Modifications To the Services.
PredPol may make commercially reasonable changes to the Services from time to time. If
PredPol makes a material change to the Services PredPol will inform Customer.
4.4 Retention.
PredPol vnll have no obligation to retain any archived Customer Data. Customer Data is
read from Customer, but PredPol does not provide or fimction as an archive service for the data.
5. Customer Obligations.
5.1 Compliance.
Customer v^U use the Services in accordance with this Agreement and all applicable
Califomia and federal laws. PredPol may make new applications features or fimctionality for the
Services available from time to time the use of which may be contingent upon Customer's
agreement to additional terms. In the event of a conflict between the terms of this Agreement and
any additional terms in a subsequent features or fimctionality agreement, the terms of this
Agreement shall take precedence over the additional terms in a subsequent features or
functionality agreement.
5.2 Login IDs and Passwords.
Customer is solely responsible for monitoring and protecting the confidentiality of all
Login IDs and Passwords issued to it and its End Users.
5.3 Customer Administration of the Services.
Customer may specify one or more Administrators who v^U have the rights to administer
the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the
password and Admin Account(s); (b) designating those individuals who are authorized to access
the Admin Account(s); and (c) ensuring that all activities that occur in connection with the
Admin Account(s) comply with the Agreement. Customer agrees that PredPol's responsibihties
do not extend to the intemal management or administration of the Services for Customer and that
PredPol is merely a data-processor.
5.4 Unauthorized Use.
Customer will use reasonable efforts to prevent unauthorized use of the Services and to
terminate any unauthorized use. Customer will promptly notify PredPol of any unauthorized use
of or access to the Services of which it becomes aware.
5.5 Restrictions on Use.
Unless PredPol specifically agrees in writing. Customer will not: (a) sell, resell, lease or
the functional equivalent, the Services to a third party; (b) attempt to reverse engineer the
Services or any component; (c) attempt to create a substitute or similar service through use of, or
access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to
store or transfer any Customer Data that is controlled for export under Export Control Laws or
other applicable law. Customer is solely responsible for ensuring that its use of the Services
complies with all appUcable Califomia and federal laws and regulations.
5.6 Third Party Requests.
Customer is responsible for responding to Third Party Requests. PredPol will, to the
extent allowed by law and by the terms of the Thfrd Party Request: (a) promptly notify Customer
of its receipt of a Third Party Request; (b) comply with Customer's reasonable requests regarding
its efforts to oppose a Third Party Request; and (c) provide Customer with the information or
tools required for Customer to respond to the Third Party Request. Customer will furst seek to
obtain the information required to respond to the Third Party Request on its own and will contact
PredPol only if it cannot reasonably obtain such information.
6. Payment.
6.1 Payment.
Fees for orders where PredPol issues an invoice are due upon Customer's receipt of the
invoice and are considered delinquent thirty days after the date ofthe applicable invoice.
6.2 Delinquent Payments.
Customer v^U be responsible for all reasonable expenses (including attomeys' fees)
incurred by PredPol in collecting such delinquent amounts except where such delinquent
amounts are due to PredPol's billing inaccuracies.
6.3 Taxes.
Customer is responsible for any Taxes and Customer will pay PredPol for the Services
without any reduction for Taxes. If PredPol is obligated to collect or pay Taxes, the Taxes will
be invoiced to Customer unless Customer provides PredPol with a vahd tax exemption certificate
authorized by the appropriate taxing authority. If Customer is required by law to withhold any
Taxes from its payments to PredPol, Customer must provide PredPol with an official tax receipt
or other appropriate documentation to support such payments.
7. Technical Support Services.
7.1 By PredPol.
If Customer cannot resolve a support issue then Customer may escalate the issue to
PredPol who will provide the support necessary to resolve Customer's issue, to the extent
reasonably practicable in PredPol's discretion.
8. Suspension.
8.1 Of End User Accounts by PredPol.
If PredPol becomes aware of a violation of this Agreement, then PredPol may suspend
Customer's use of the Services. The duration of any suspension by PredPol will be vmtil the
Customer has cured the breach which caused the suspension.
8.2 5.2 Emergency Security Issues.
Notwithstanding the foregoing, if there is an Emergency Security Issue, then PredPol
may automatically suspend the offending use. Suspension will be to the minimum extent and of
the minimum duration required to prevent or terminate the Emergency Security Issue. If PredPol
Suspends for any reason without prior notice to Customer, at Customer's request, PredPol will
provide Customer the reason for the Suspension as soon as is reasonably possible.
9. Confidential Information.
9.1 Obligations.
Each party wHi: (a) protect the other party's Confidential Information with the same
standard of care it uses to protect its own Confidential Information; and (b) not disclose the
Confidential Information except to Affihates, employees and agents who need to know it and
who have agreed in writing to keep it confidential. Each party (and any Affiliates' employees and
agents to whom it has disclosed Confidential Information) may use Confidential Information
only to exercise rights and fulfill its obligations under this Agreement, while using reasonable
care to protect it. Each party is responsible for any actions of its Affiliates' employees and agents
in violation of this Section.
9.2 Exceptions.
Confidential Information does not include information that: (a) the recipient of the
Confidential Information already knew; (b) becomes public through no fault of the recipient; (c)
was independentiy developed by the recipient; or (d) was rightfully given to the recipient by
another party.
9.3 Required Disclosure.
Each party may disclose the other party's Confidential Information when required by law
but only after it, if legally permissible: (a) uses reasonable efforts to notify the other party; and
(b) gives the other party the chance to challenge the disclosure.
10. Intellectual Property Rights; Brand Features.
10.1 Intellectual Property Rights.
Except as expressly set forth herein, this Agreement does not grant either party any
rights, implied or otherwise, to the other's content or any of the other's intellectual property. As
between tiie parties. Customer owns all Intellectual Property Rights in Customer Data and
PredPol owns all Intellectiial Property Rights in tiie Services. Customer grants to PredPol a non-
exclusive Ucense to use Customer's Data for PredPol's legitimate business purposes, including
providing products and services to law enforcement agencies.
IL Publicity.
Customer agrees that PredPol may include Customer's name in a Ust of PredPol
customers, online or in promotional materials. Customer also agrees tiiat PredPol may verbally
reference Customer as a customer of tiie PredPol products or services tiiat are the subject of tiiis
Agreement.
12. Representations. Warranties and Disclaimers.
12.1 Representations and Warranties.
Each party represents that it has fiiU power and autiiority to enter into the Agreement.
Each party warrants tiiat it will comply with all Califomia and federal laws and regulations
applicable to its provision, or use of tiie Services, as appUcable (including applicable security
breach notification law). PredPol warrants that it will provide tiie Services as provided herein.
12.2 Disclaimers.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS
EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER
WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT
PREDPOL MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR
INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER
ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND
THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS
INCLUDING EMERGENCY SERVICES CALLS OVER PUBLICLY SWITCHED
TELEPHONE NETWORKS.
13. Termination.
13.1 Customer Termination
The Agency may terminate tiiis Agreement with PredPol vsdtii 30 days' notice before tiie
annual renewal for any reason. There will be no penalty for termination and Agency will be
released from aU obligations in Year 2.
13.2 Termination for Breach.
Either party may suspend performance or temiinate tiiis Agreement ifi (i) tiie other party
is in material breach of the Agreement and fails to cure that breach within tiiirty days after
receipt of written notice; (ii) the other party ceases its business operations or becomes subject to
insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the
other party is in material breach of this Agreement more than two times notwithstanding any
cure of such breaches.
13.3 Effects of Termination.
If this Agreement terminates, then: (i) the rights granted by one party to the other will
cease immediately (except as set forth in this Section); and (ii) upon request each party will
promptly use reasonable efforts to retum or destroy all other Confidential Information of the
other party.
14. Indemnification.
14.1 By Customer.
Customer will indemnify, defend, and hold harmless PredPol from and against all
liabilities, damages, and costs (mcludmg settlement costs and reasonable attorneys' fees) arising
out of a third party claim: (i) regardmg Customer Data; or (ii) regarding Customer's use of the
Services in violation of this Agreement or applicable Califomia or federal law.
14.2 By PredPol.
PredPol will indemnify, defend, and hold harmless Customer from and against all
liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising
out of a thkd party claim that: (i) PredPol's technology used to provide the Services or any
PredPol Brand Feature infringe or misappropriate any patent, copyright, frade secret or
frademark of such third party; or (ii) the disclosure of confidential personal identifying
information. Notwithstandmg the foregoing, in no event shall PredPol have any obligations or
liability under this Section arising from: (i) Customer's use of any Services or PredPol Brand
Features in a modified form or in combination with materials not fumished by PredPol, and (ii)
any content, information or data which is not confidential personal identifying information
provided by Customer, End Users or other third parties.
14.3 Possible Infringement.
a. Repair, Replace, or Modify.
If PredPol reasonably believes the Services infiinge a third party's Intellectual Property
Rights, then PredPol wiU: (a) obtain the right for Customer, at PredPol's expense, to contmue
using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c)
modify the Services so that they no longer infringe.
b. Suspension or Termination.
If PredPol does not believe the foregoing options are commercially reasonable, then
PredPol may suspend or terminate Customer's use of the impacted Services. If PredPol
terminates tiie impacted Services, then PredPol will provide a pro-rata refund of the unearned
Fees actually paid by Customer applicable to the period following termination ofsuch Services.
14.4 General.
The party seeking indemnification wiU promptly notify tiie otiier party oftiie claim and
cooperate with tiie otiier party in defending tiie claim. The indemnifying party has fiiU confrol
and autiiority over tiie defense, except tiiat: (a) any settlement requiring tiie party seekmg
indenmification to admit Uability or to pay any money wiU require tiiat party's prior written
consent, such consent not to be unreasonably witiiheld or delayed; and (b) tiie otiier party may
join in tiie defense witii its own counsel at its own expense. THE INDEMNITIES ABOVE ARE
A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE
OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
15. Limitation of Liability.
15.1 Limitation on Indirect Liability.
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST
REVENUES OR INDIRECT, SPECIAL, E^CIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN
THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT
SATISFY A REMEDY.
15.2 Limitation on Amount of Liability.
NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR
MORE THAN THE AMOUNT PAID BY CUSTOMER TO PREDPOL HEREUNDER
DURING THE TWELVE MONTHS PRIOR TO THE EVENT GRTNG RISE TO LIABILITY.
15.3 Exceptions to Limitations.
These limitations of Uability apply to tiie fiiUest extent permitted by appUcable law but do
not apply to breaches of confidentiality obligations, violations of a party's Intellecttial Property
Rights by tiie other party, or indemnification obligations.
16. Miscellaneous.
16.1 Notices.
Unless specified otiierwise herein, (a) all notices must be in writing and addressed to tiie
attention oftiie otiier party's legal department and primary point of contact and (b) notice will be
deemed given: (i) when verified by written receipt if sent by personal courier, ovemight courier,
or when received if sent by mail without verification of receipt; or (u) when verified by
automated receipt or elecfronic logs if sent by facsimile or email.
16.2 Assignment.
Neither party may assign or fransfer any part of this Agreement without tiie written
consent oftiie otiier party, except to an AffiUate, but only ifi (a) tiie assignee agrees in writing to
be bound by the terms of tiiis Agreement; and (b) tiie assigning party remains Uable for
obligations incurred under the Agreement prior to the assignment. Any other attempt to fransfer
or assign is void.
16.3 Change of Control.
Upon a change of confrol (for example, through a stock purchase or sale, merger, or other
form of corporate fransaction): (a) the party experiencing the change of confrol will provide
written notice to the other party witiiin thirty days after the change of confrol; and (b) the other
party may immediately temiinate this Agreement any time between the change of confrol and
thirty days after it receives the written notice in subsection (a).
16.4 Force Majeure.
Neither party will be liable for madequate performance to the extent caused by a
condition (for example, natural disaster, act of war or terrorism, riot, labor condition,
govemmental action, and Intemet disturbance) that was beyond the party's reasonable confrol.
16.5 No Waiver.
Failure to enforce any provision of this Agreement will not constitute a waiver.
16.6 Severability.
If any provision of this Agreement is found unenforceable, the balance of the Agreement
will remain in fiill force and effect.
16.7 No Agency.
The parties are independent confractors, and this Agreement does not create an agency,
partnership or joint venture.
16.8 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
16.9 Equitable Relief.
Nothing in this Agreement will limit either party's ability to seek equitable reUef
16.10 Governing Law.
This Agreement is govemed by Califomia law, excluding that state's choice of law rales.
FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE
OF, THE COURTS IN SANTA CRUZ COUNTY, CALIFORNIA. The parties explicitly agree
that no other laws, freaties or regulations shall confrol this Agreement.
16.11 Amendments.
Any amendment must be in writmg and expressly state that it is amending this
Agreement.
16.12 Survival.
The following sections wiU survive expiration or termination of this Agreement: Section
3,6, 7.1,10,12,13,14 and 15.
16.13 Entire Agreement.
This Agreement, and aU documents referenced herein, is the parties' entire agreement
relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
16.14 Interpretation of Conflicting Terms.
If there is a conflict between the documents that make up this Agreement, the documents
wiU confrol in the foUowing order: the Subscription Terms set fortii in any separate quote
prepared by PredPol, then the Agreement, and tiie terms located at any URL. If Customer signs a
physical agreement with PredPol to receive the Services, the physical agreement v^U override
any online Agreement.
16.15 Counterparts.
The parties may enter into this Agreement in counterparts, including facsimile, PDF or
other elecfronic copies, which taken together will constitute one instrument,
17. Definitions.
17.1 "Account Manager" means the PredPol business person working with
Customer regarding Customer's purchase of the Services.
17.2 "Admin Account(s)" means tiie administrative account(s) provided to
Customer by PredPol for the purpose of administering the Services. The use of tiie Admin
Account(s) requires a password, wliich PredPol wiU provide to Customer.
17.3 "Admmisfrators" mean the Customer-designated technical personnel who
administer the Services to End Users on Customer's behalf
17.4 "AffiUate" means any entity that directly or indirectly confrols, is
controlled by, or is under common confrol with a party.
17.5 "Brand Features" means the frade names, frademarks, service marks,
logos, domain names, and other distinctive brand features of each party, respectively, as secured
by such party from time to time.
17.6 "Confidential Information" means information disclosed by a party to the
other party under this Agreement that is marked as confidential or would normally be considered
confidential under the cfrcumstances. Customer Data is Customer's Confidential Information.
17.7 "Customer Data" means data, including crime data, provided, generated,
transmitted or displayed via the Services by Customer or End Users.
17.8 "Emergency Security Issue" means either: (a) Customer's use of the
Services in violation of the Acceptable Use PoUcy, which could dismpt: (i) the Services; (ii)
other customer's use of the Services; or (iii) the PredPol network or servers used to provide the
Services; or (b) unauthorized thfrd party access to the Services.
17.9 "End Users" means the mdividuals Customer permits to use the Services.
17.10 "End User Account" means a PredPol-hosted account established by
Customer through the Services for an End User.
17.11 "Export Confrol Laws" means all applicable export and reexport confrol
laws and regulations, including the Export Adminisfration Regulations ("EAR") maintained by
the U.S. Department of Commerce, frade and economic sanctions maintained by the Treasury
Department's Office of Foreign Assets Confrol, and the Intemational Traffic in Arms
Regulations ("ITAR") maintained by the Department of State.
17.12 "Fees" means the amounts invoiced to Customer by PredPol for the
Services as described in a Subscription Terms or similar document.
17.13 "High Risk Activities" means uses such as the operation of nuclear
facilities, afr fraffic confrol, or life support systems, where the use or failure of the Services could
lead to death, personal injury, or envfronmental damage.
17.14 "Initial Services Term" means the term for the applicable Services
beginning on the Service Commencement Date and continuing for 12 months (or, if different, the
duration set forth on the Order Page).
17.15 "InteUectual Property Rights" means current and future worldwide rights
under patent law, copyright law, frade secret law, frademark law, moral rights law, and other
similar rights.
17.16 "Subscription Terms" means the order document reflecting the financial
terms of the subscription, including: (i) the Services beuig ordered; (ii) Fees; and (ui) Initial
Services Term.
17.17 "Service Commencement Date" is the date upon which PredPol makes the
Services available to Customer, and will be within one week of PredPol's receipt of the
completed Order Page, unless otherwise agreed by the parties.
17.18 "Service Pages" mean the web pages displaying the Services to End Users.
17.19 "Services" means the applicable PredPol product or service, as described
in the attached Product Data Sheet.
17.20 "Services Term" means tiie appUcable Initial Services Term and all
renewal terms for the applicable Services.
17.21 "Suspend" means tiie immediate disabling of access to the Services, or
components oftiie Services, as applicable, to prevent fiirther use oftiie Services.
17.22 "Taxes" means any duties, customs fees, or taxes (other than PredPol's
income tax) associated with the sale of tiie Services, mcluding any related penalties or interest.
17.23 "Term" means the term of tiie Agreement, which will begin on tiie
Effective Date and continue until tiie earlier of (i) tiie end oftiie last Services Term or (ii) tiie
Agreement is terminated as set forth herein.
17.24 "Thfrd Party Request" means a request from a thfrd party for records
relating to an End User's use of the Services. Thfrd Party Requests can be a lawful search
warrant, court order, subpoena, other valid legal order, or written consent from tiie End User
permitting the disclosure.
EXECUTED as a sealed instrument as of the day and year first set forth below by the last
counter-signatory.
DATED: _, 20 PredPol, Inc.
DATED: '«=*-^'S
By: Caleb Baskin, its CEO
_,20^ City of Carlsbad:
By:_
Approved as to Form:
CELIA A. BREWER, City Attorney
istant City Attomey