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HomeMy WebLinkAboutExhibit - AgreementNC4 STREET SMARTTM SOFTWARE LICENSE AND MANAGED SERVICES AGREEMENT This NC4 Street SmartTM Software License and Managed Services Agreement ("Agreement') is entered. into as of the last date of signature on the signature page of this Agreement ("Effective Date") by and. between NC4 Public Sector LLC, a Delaware limited liability company with its principal office located at 100 N. Sepulveda Blvd., Suite 200, El Segundo, CA 90245 ("NC4"), and the following: Customer Name: City of Miami, a Florida municipal corporation, Attn.: City of Miami Police Department ("Customer "or "City") Attn: Chief Jorge H. Gomez Address: 400 NW 2nd Avenue Miami, FL 33128 RECITALS WHEREAS, NC4 is the owner of certain computer software programs, including its NC4 Street SmartTM software application ("Software"), and also provides configuration, managed hosting and other services related to the Software; WHEREAS, the Software enables law enforcement agencies to exchange information necessary for daily law enforcement activities by providing real time data which allows police officers to pinpoint crimes, patterns, and incidents, thus allowing for, among other things, more expeditious crime fighting; WHEREAS, the Software can be configured to provide for data from various information feed sources to meet the Customer's needs; and WHEREAS, the Customer desires to engage NC4 to configure and provide a NC4 Street Smart Solution to meet. Customer's particular needs, which Customer will then license from NC4 as further described herein. NOW, THEREFORE, based on the foregoing premises and the promises set forth below, the Parties agree as follows: AGREEMENT 1. Grant of License. 1.1. License Grant. Subject to the terms and conditions of this Agreement, NC4 hereby grants to Customer a limited, non-exclusive, non -transferable, non. -assignable, perpetual license, without the right to grant sublicenses, to use the object code only of the Software as configured. by NC4 in accordance with Sections 2 and 3 below ("Solution"). The license is limited for use by Sworn Officers to the number set forth at Schedule A. Additional license fees will apply if Customer, at its option, desires to add more Sworn Officers. Civilian workers that are directly employed by Customer may also use the Solution. However, Customer will not provide any third party access to the Software or Solution without NC4's prior written consent. The license granted in this Section 1 shall also include modifications to the Solution that NC4 may make pursuant to Services that Customer purchases from NC4. Until such time that Customer has fully paid all Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) license and other fees due NC4, the term of the license shall be temporary and subject to termination by NC4 in accordance with Section 12 of this Agreement. 1.2 Restrictions on Use, Customer shall not, and shall not permit others to, without NC4's prior written consent, which shall not be unreasonably withheld or delayed: (i) exceed the number of permitted Sworn Officers set forth on Schedule A; (ii) install the Software or Solution on any server or at any site other than those designated by Customer to NC4; (iii) distribute, rent, lease, assign or transfer the Software or Solution to any third party; or (iv) modify, customize, reverse engineer, reverse assemble or reverse compile the Software or Solution or any part thereof. 1.3 Use of Third -Party Software. Customer shall not use any third party software embedded in or otherwise provided with the Solution on a stand-alone basis or in any way other than as provided with the Solution. All. third party software shall be used only in connection with the Solution and for no other use, and may be further subject to third party standard end user license agreements. 1.4 Copies. Customer may make and maintain a single copy of the Solution only as needed for reasonable ordinary archival and backup or disaster recovery procedures. All copies shall be subject to the terms and conditions of this Agreement and applicable copyright law, and all proprietary rights notices contained on the original Software shall be reproduced on or in any copies. No copies of the Software or Solution shall be provided to any third party without NC4's prior written consent. 2. Initial Set Up and Configuration Services. Upon execution of this Agreement, the Parties will work together to define Customer's needs for configuring the Solution. NC4's standard initial set up includes: installation of the NC4 Street Smart Software and connection to one feed (e.g., computer aided dispatch (CAD), records management system (RMS), or offender data base). If Customer desires additional feeds, configuration or customization, a Statement of Work will be entered into and additional fees will apply, as set forth in Section 3 below. 3. Professional Services and Statements of Work. If additional Services are requested of NC4 beyond the scope of the initial set up and configuration services set forth in Section 2 above, the Parties will enter into a mutually agreed upon Statement of Work ("SOW") identifying the Services and tasks to be performed by NC4, and set forth an estimate of the hours and corresponding fees for such Services. Unless otherwise set forth in the SOW, all Services will be provided by NC4 on a "time and material" basis at the rates identified in the SOW. The parties will include a Guaranteed Maximum Price ("GMP") for all SOW, the GMP may only be exceeded by written amendment. 4. Maintenance and Support. Annual maintenance and support fees must be kept current in order for Customer to receive the following maintenance and support Services from NC4. NC4 may, in its sole discretion, discontinue maintenance and support if maintenance and support fees are not current. 4.1 Maintenance/Upgrades. Purchase of annual maintenance entitles Customer to "point release" updates (e.g., bug fixes, defect corrections, minor enhancements) ("Updates") to the Software, as well as version upgrades which may include major enhancements ("Upgrades"), for such Updates and Upgrades that become commercially available during the then -current maintenance term. NC4 will provide such Updates or Upgrades within ninety (90) days of Customer's request, or as otherwise agreed to in writing. NC4 standard maintenance and support does not cover customizations performed by or for Customer, except for problems in NC4's base Software code. In addition, NC4 standard maintenance and support does not include knowledge transfer, data migration, or training associated with Updates or Upgrades. If such Services are desired of NC4, they can be procured at NC4's then - current professional services fees, plus travel expenses, under a mutually agreed upon SOW. Miami PD - NC4 Street Small (managed services) (L. Bedard/vh) (05012016) 4.2 Customer Support. NC4 will provide Customer with the ability to report technical issues 24 x 7 for the Software/Solution. Response times to resolve issues are set forth at NC4's Customer Support Policy, attached hereto as Schedule B. Telephone support shall be available to not more than three (3) named callers. The City at its option may change the named callers from time to time by Maintenance and notifying NC4. NC4 support includes troubleshooting, basic usability and navigation assistance, Support shall not include installation of upgrades or modification or customization of upgrades, problems not attributable to the Software, or problems arising from Customer's actions to cause an error in the Software or Solution, which will be billed at NC4's then -current professional services rates. Customer agrees to provide NC4 access to production systems for purposes of customer support. NC4 standard support does not cover customer extensions and third party add-ons, except for problems in NC4's base Software code, 4.3 Maintenance and Support Term. Annual maintenance and support shall commence on the first to occur of. (i) date of installation of the Software/Solution, (ii) 90 days after receipt of Customer's order by NC4, or (iii) 90 days after execution of this Agreement. 4.4 Maintenance and Support Fees. NC4 will invoice Customer for the initial annual maintenance and support fees as set forth in Schedule A, and annually thereafter during the normal billing period nearest the anniversary of the initial annual maintenance and support date. Unless prepaid by Customer, any amounts stated on Schedule A for maintenance and support fees beyond the initial term, are stated for Customer's budget purposes only. Maintenance and support fees will be paid monthly by the City or before the close of the first week of each month. The City does not prepay fees in advance of the month for which they are due. NC4 reserves the right to change the maintenance and support fee at the end of the Initial Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).. If the City is not in Agreement with any change of maintenance and support fees the City reserves the right to cancel the Agreement by giving NC4 thirty days prior notice (which may be sent by email) in which case the Agreement shall be cancelled at the end of such time, NC4 shall be entitled to be paid all fees due prior to the effective date of cancellation but shall have no other recourse against the City relative to the cancellation of the Agreement. S. Managed hosting Services. 5.1 Managed Services. NC4 will provide managed hosting services to Customer to host the Software/Solution licensed hereunder ("Managed Services"), as set forth at Schedule A. NC4's Managed Services provide Customer with dedicated server instances and all necessary server infrastructure to support Customer's NC4 Street Smart Solution in production. NC4 will be responsible for: providing, operating, maintaining and managing the servers and network; data center security; and backups to Customer's Solution and data. NC4 will also install, operate and manage the Street Smart Solution, the hardware and operating system, and the telecommunications facility necessary for hosting Customer's NC4 Street Smart Solution. NC4's base Managed Services do not include disaster recovery or high availability, but these options are available for an additional fee, 5.2 Disk/Storage Space. Purchase of NC4's standard Managed Hosting Services provides Customer with 20OG of disk space. Additional disk space may be purchased from NC4 for an additional fee. 5.3 Data Protection. Customer acknowledges and agrees that access to the Solution is provided via the Internet, and NC4 does not guarantee the Services wilt be uninterrupted or error -free. NC4 shall not be responsible for actions of third parties that are outside of NC4's control. Customer is responsible to ensure adequate security for its end points. Customer is also responsible for managing the security of its authentication credentials for access to the Solution, authorizing access to the Solution, and promptly removing access for individuals who are no longer allowed or require access to Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) the Solution. NC4 will not release any Customer Data to any third party without Customer's prior written consent, except where NC4 is required to do so pursuant to a subpoena, court order, or other legal, judicial or administrative proceedings, or otherwise required by law. In such event, NC4 will first provide reasonable prior notice to Customer to allow Customer to seek a protective order or other appropriate remedy. 5.4 Service Level Agreement. NC4 will provide the Managed Services in accordance with the Service Level Agreement attached hereto as Schedule B. 6. Fees and Payment Terms. 6.1 PUment Terms. Fees for the Initial Term of the Agreement are set forth in Schedule A. Fees for Services for any renewal term ("Renewal Term") will be provided by NC4 to Customer prior to the expiration of the Initial Term or any Renewal Term. Customer shall pay to NC4 all fees due hereunder, as set forth in Schedule A or otherwise in writing by a SOW or similar document, within forty five (45) days of the NC4 invoice date. NC4 will submit proper invoices as such term is defined by the Local Government Prompt Payment Act, Section 218.70, ET. seq., Fla. Stat. NC4 may charge a service fee on late payments of the lesser of 1 % per month on the unpaid portion Unless otherwise instructed by Customer in writing, NC4 shall send all invoices to the address specified at the introduction paragraph of this Agreement. 6.2 Ex enses. Customer shalt reimburse NC4 for reasonable travel, and out-of-pocket expenses incurred while performing services hereunder. All expenses are subject to the, limitations established by Section 112.061, Fla, Stat. Such expenses are not included in any estimate in a statement of work unless expressly itemized. 6.3 Cancellation or Rescheduling of Meetings or Travel by Customer. If meetings are rescheduled or cancelled by Customer after NC4 travel expenses have been incurred, Customer is responsible for actual direct incurred costs associated with changing or cancelling airline tickets, if any, and shall substantiate such charges to the City. 6.4 Interest. NC4 may charge interest on late payments of the 1 % per month. 6.5 Taxes. All fees and charges set forth herein or in any statement of work are exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the Solution, unless otherwise stated in writing. The City is exempt from State sales, use and income taxes and will furnish its tax exempt identification number to NC4. Any such taxes (except taxes based on NC4's income), duties, or fees shall be paid directly by Customer or reimbursed by Customer to NC4. 7. Ownership. 7.1 Solution. Customer acknowledges and agrees that it is acquiring only the right to use the Solution and underlying Software licensed under this Agreement. NC4, or its licensors as the case may be, is the owner of all right, title, and interest in and to the Software and Solution and all components and copies thereof, all modifications thereto (including derivative works based on the Solution or underlying Software application), and changes to the Solution made by NC4 pursuant to this Agreement, and all of the intellectual property rights in and to all of the foregoing. In no event shall title to all or any part of the Solution or underlying Software applications pass to Customer. Customer agrees that, as between the Parties, the Solution, all underlying Software applications, and all copies (in whole or part) shall remain the exclusive property of NC4, or its licensors as the case Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) may be, and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to Customer under this Agreement are retained by NC4. 7.2 Documentation and 'training Materials. All NC4 documentation and training materials provided by NC4 hereunder, and all modifications thereto and intellectual property rights therein, shall be the sole and exclusive property of NC4. Customer may make copies of such documentation and training materials for its reasonable and ordinary internal training purposes only. All proprietary rights notices contained on the NC4 documentation and training materials shall be reproduced on any copies. The City is subject to the Public Records Laws of the State of Florida, Chapter 119, Florida Statutes. To the extent allowed by the Public Records Laws, no copies of NC4 documentation or training materials shall be provided to any third party or competitor of NC4, without NC4's prior written consent. 7.3 Customer Data. (a) Customer hereby represents and warrants to NC4 that it is the owner or licensee of all data and. content contained within the Solution ("Customer Data"). Customer acknowledges and agrees that it is solely responsible and liable for the Customer Data and its use of the Customer Data, including any data obtained or entered into the Solution by a third party. Customer further acknowledges and agrees that NC4 is merely a provider of the Solution on which the Customer Data resides, is not an authoritative source of the Customer Data, and is in no way responsible or liable to Customer or any third party for the Customer Data. Therefore, Customer will use due diligence to validate the Customer Data that resides in the Solution prior to taking action on such data. If applicable, Customer shall ensure compliance with 28 CFR Part 23, and acknowledges and agrees that NC4 shall have no responsibility or liability with respect to Customer or the data being compliant with 28 CFR Part 23. Customer further represents and warrants to NC4 that the Customer Data does not knowingly violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other intellectual property right recognized by any applicable jurisdiction of any person or entity, violate the civil rights of any individual, or otherwise constitute the breach of any agreement with any other person or entity. Customer further represents and warrants that the Customer Data does not knowingly contain any illegal, threatening, harassing, libelous, false, defamatory, offensive, or other material that would violate applicable law or regulation. (b) Customer hereby authorizes NC4 to access and use the Customer Data for the sole purpose of providing the Solution and Services hereunder. NC4 will not share the Customer Data with any third parties, subject to Section 13(f) herein, or modify any of the Customer Data without Customer's express written consent. Access to the Customer Data by NC4's authorized representatives shall be conducted in a safe, secure, and reliable manner. 8. Limited Warranty; Customer Obligations. 8,1. Software/Solution Warranties. (a) NC4 hereby represents and warrants to Customer for a period of ninety (90) days from delivery of the Solution ("Solution Warranty Period"): (a) that the Solution provided under this Agreement will conform in all material respects as described in NC4's published documentation ("Documentation") and to Customer specifications that NC4 has agreed to in writing and incorporated into this Agreement ("Specifications"); (b) that at the time of delivery, the Solution will not contain any time bomb, trap door or other code designed to disrupt, disable, harm or otherwise impede, or to allow unauthorized access to, the operation of Customer's software, firmware, hardware or computer system; (c) that NC4 has the legal right to enter into and perform its obligations under this Agreement; (d) that any Solution provided under this .Agreement will comply with all applicable laws, rules, or regulations, Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) and that NC4 has obtained all. required permits necessary to comply with such laws, rules, or regulations; and (e) that, at the time of delivery, to the best of NC4's knowledge, the Solution provided under this Agreement does not violate or in any way infringe upon the intellectual property rights of any third party For purposes of this Agreement, "knowledge" of a business entity shall mean the actual knowledge of its executive officers and key managers. Customer must report any defects in the Solution to NC4 in writing within the Solution Warranty Period for that particular order or Statement of Work in order to receive the warranty remedy set forth in this Section 8.1(a). (b) Customer's sole remedy, and NC4's sole obligation, under this Software/Solution warranty shall be, at NC4's discretion, to provide a work around or correction for, or replace, any defective or nonconforming Solution so as to enable the Solution to materially conform to the Documentation and Specifications or otherwise as warranted above. If NC4 is unable to provide a work around or correction for, or replace, the Solution so that it materially conforms to the Documentation and Specifications, then NC4 will, upon Customer's written request for cancellation of the order, terminate the license and refund the license fee that was paid by Customer to NC4 for the order. (c) NC4 shall have no obligation under this warranty if the Solution has been (i) used other than in accordance with this Agreement or the Documentation and Specifications; (ii) modified by a party other than NC4, or (iii) combined with hardware or software not identified in the Documentation or Specifications as being compatible with the Solution. If Customer provides any hardware or software that is incorporated into the Solution, Customer agrees that it will use all reasonable efforts to ensure that such hardware or software is free from defects, and NC4 shall not be responsible for any such defects discovered and shown to be the proximate cause of any damage or loss to the Solution or Customer's data. (d) THE REMEDIES SET FORTH IN THIS SECTION 8.1 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTIES GIVEN BY NC4 UNDER THIS SECTION 8.1. NC4 AND ITS SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE OR SOLUTION (OTHER THAN THOSE SET FORTH IN THIS SECTION 8.1 OR ANY DERIVATIVES THEREOF AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEM INTEGRATION, OR ENJOYMENT. 8.2 Services Warranties. (a) NC4 warrants to Customer that any professional services for a particular statement of work will be performed. in a manner consistent with generally accepted industry practices. Customer must report any discovered deficiencies in the Services to NC4 in writing within ninety (90) days of completion of the Services, or within discovery of such deficiency, for that particular statement of work or order in order to receive the warranty remedy set forth in this Section 8.2. (b) If the Services are not performed in a manner consistent with generally accepted industry practices, then NC4's sole obligation under this service warranty shall be to re -perform the defective services. For any breach of the services warranty set forth in this Section 8.2, Customer's sole remedy, and NC4's sole liability, shall be the re -performance of the Services, and if NC4 fails to re- perform the Services as warranted, Customer shall be entitled to a refund of the fees paid by Customer to NC4 for the deficient services. (c) NC4 AND ITS SUBCONTRACTORS MAKE NO WARRANTIES OR CONDITIONS TO ANY PERSON OR ENTITY WITH RESPECT TO TIIE SERVICES (OTHER THAN THOSE SET Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) FORTH IN THIS SECTION 8.2 AND DISCLAIM ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OR CONDITIONS OF WORKMANSHIP, MER.CHANTABIITY, FITNESS FOR A PARTICULAR PURPOSE AND NON - INFRINGEMENT. 8.3 Customer's Actions. In the event that Customer is required to provide any information or take any actions to facilitate the implementation of the Solution and Customer fails to do so in a timely manner, Customer shall be deemed to have waived any claim that it may have against NC4 for late or faulty performance that has resulted from Customer's failure. 9. LIMITATION OF LIABILITY. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE MANAGED SERVICES, SOFTWARE AND SOLUTION ARE PROVIDED BY NC4 TO CUSTOMER ON AN "AS IS" BASIS. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NC4 DOES NOT WARRANT THAT THE MANAGED SERVICES, SOFTWARWE OR SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, OR MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE MANAGED SERVICES, SOFTWARE ORSOLUTION. EXCEPT FOR OBLIGATIONS OF CONFIDENTIALITY OR INDEMNIFICATION EXPRESSLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL NC4 OR ITS LICENSORS, AFFILIATES, CONTRACTORS, MANAGERS, MEMBERS OR THEIR RESPECTIVE EMPLOYEES OR AGENTS BE LIABLE FOR LOSS OR INACCURACY OF DATA OR SYSTEM USE, DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, OR ANY OTHER INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES IN CONNECTION WITH CUSTOMER'S USE OF THE MANAGED SERVICES, SOFTWARE OR SOLUTION, NC4'S PROVISION OF THE MANAGED SERVICES OR ANY PROFESSIONAL SERVICES, OR THIS AGREEMENT, UNDER CONTRACT, TORT, STRICT LIABILTY OR OTHER LEGAL OR EQUITABLE THEORTY. THIS Li n'ATION SHALL APPLY EVEN IF NC4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, AND THAT THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL THE TOTAL LIABILITY OF NC4 AND ITS AFFILIATES, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILTY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, EXCEED THE FEES PAID FOR THE SOLUTION OR SERVICES, ON A PER -ORDER BASIS, WHICH ARE THE DIRECT CAUSE OF THE DAMAGES OR LIABILITY CLAIMED. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN THREE (3) YEARS AFTER THE CAUSE OF ACTION IS DISCOVERED BY CUSTOMER, BUT NO MORE THAN TWO (2) YEAR AFTER THE EXPIRATION OR TERMINATION OF THE AGREEMENT. IN NO EVENT SHALL NC4 HAVE ANY LIABILITY FOR CUSTOMER'S USE, MISUSE OR FAILURE TO USE THE SOLUTION. 10. Indemnification, Insurance 10.1 General Indemnification. NC4 shall indemnify, defend and hold harmless the City against any and all third party claims of personal injury or property damage to the extent such damages are caused by suchNC4's negligence, gross negligence, or willful misconduct. Customer is not authorized to indenuaify NC4 under applicable law, Customer is hereby obligated to cooperate and assist NC4 in defending any third party claim resulting in any way from Customer's actions or Customer Data. NC4 shall pay any and all costs, damages, and expenses, including, without limitation, reasonable attorneys' fees and costs awarded against or otherwise incurred by the City in connection with or arising from any Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (v05012016) such claim, suit, action, or proceeding. The City shall be entitled to indemnification only if (a) within 15 days of its discovery of a potential claim it notifies NC4 in writing of such claim in sufficient detail to enable the Indemnifying Party to evaluate the claim, (b) the City cooperates in all reasonable respects with the investigation, trial and defense of such claim and any appeal arising therefrom, and (c) NC4 has sole control of the defense and settlement of such claim. So long as NC4 is actively defending the claim, or working toward a resolution of same, the City shall not compromise any claim or enter into any settlement without the written consent of the Indemnifying Party. In no event shall NC4 be liable for any damages resulting from Customer's use, misuse or failure to use the Solution or validate Customer Data. 10.2 Infringement. NC4 shall indemnify, defend and hold harmless Customer against any and all third party claims that the Solution infringes any registered U.S. copyrights of such third party that are issued as of the delivery date of the Solution to Customer. NC4 shall pay any and all costs, damages, and expenses, including, without limitation, reasonable attorneys' fees and costs awarded against or otherwise incurred by Customer in connection with or arising from any such claim, suit, action, or proceeding. Customer shall be entitled to indemnification only if (a) within 15 days of its discovery of a potential claim it notifies NC4 in writing of such claim in sufficient detail to enable the NC4 to evaluate the claim, (b) Customer cooperates in all reasonable respects, at NC4's cost and expense, with the investigation, trial and defense of such claim and any appeal arising therefrom, and (c) NC4 has sole control of the defense and settlement of such claim. Customer shall not compromise any claim or enter into any settlement without the written consent of NC4. NC4's indemnification obligation set forth in this Section 5.2 shall not apply in the event and to the extent of alteration or misuse of, or combination of the Solution with any program, product or service not authorized by NC4, by Customer or any other party unless made in accordance with NC4's written approval. Should the Solution become, or in NC4's opinion be likely to become, the subject of such a claim of misappropriation or infringement, NC4 at its sole option, shall either: (a) procure for Customer the right to continue using the Solution or (b) replace such Solution with functionally -equivalent software, or modify such Solution to make it non -infringing, or (c) if neither option (a) nor (b) is reasonably available, terminate this Agreement and pay Customer an amount equal to 50% of the license fee payable under this Agreement. NC4 shall have no liability with respect to infringement of any proprietary right, except as set forth in this Section 10.2. 10.3 Insurance. During the term of this Agreement, NC4 shall maintain insurance coverage in accordance with the insurance requirements set forth at Schedule C to this Agreement. NC4 shall provide Customer with a certificate of insurance in accordance with Schedule C prior to performing services under this Agreement. 11. Intentionally Omitted. 12. Term and Termination. 12.1 Term. This Agreement shall commence as of the Effective Date and continue in full force and effect for the Initial Term of Three(3) Years set forth in Schedule A, and automatically renews thereafter in yearly or increments, each a Renewal Term, unless otherwise terminated in accordance with Section 12.2 below. If a multi-year Initial Term is set forth on Schedule A, this Agreement is non -cancellable for convenience during the multi-year Initial Term. After the Initial Term, if either Party desires to discontinue any Services under this Agreement, the Party may do so by providing written notice of non -renewal of the particular Services at least sixty (60) days prior to the end of the Initial Term or any Renewal Term. If any Services are so terminated, the Agreement shall continue in full force and effect as to the license granted hereunder, unless otherwise terminated in accordance with Section 12.2 below. Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) 12.2 Termination This Agreement may be terminated as follows: (a) Either Party may terminate this Agreement if the other Party breaches any of the material terms and fails to cure such breach within 3.0 days after receipt of written notice of such breach, or, if the breach cannot be reasonably cured within said period, to promptly commence to cure and diligently proceed until cured. (b) Either Party may terminate this Agreement if the other Party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such Party shall only be in breach if such petition or proceeding has not been dismissed within 90 days. (c) If the breaching Party cures any such breach as provided herein, this Agreement shall continue unabated and the breaching Party shall not be liable to the other for any loss, damage or expense arising out of or from, resulting from, related to, in connection with or as a consequence of any said breach. (d) If, after the Initial Term, Customer no longer desires to use the Solution, it may terminate this Agreement and the license granted hereunder, by providing written notice to NC4 at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term. Customer will be able to cancel at its convenience after the Initial Term. NC4 shall have no recourse or remedy from such cancellation other than to pay fees due prior to the effective date for a continuance. 12.3 Effect of Termination. Upon termination, the licenses granted to Customer hereunder shall terminate, and NC4 shall have the right to terminate Customer's access to the Solution and discontinue Services to Customer. 12.4 Data Release. If requested by Customer prior to the termination or expiration of this Agreement, NC4 will assist Customer with the release or copying of any Customer Data contained within the Solution, subject to Customer signing a data release agreement. Upon such request, NC4 shall provide a. work order to Customer which outlines the level of effort, at the prevailing professional services rates, in support of such data release. Customer shall either accept or reject the work order within thirty (30) days of receipt of said work order. If Customer fails to provide written acceptance or rejection of said work order within thirty (30) days, the work order will be deemed to be rejected, and NC4 shall have the right to remove, delete, or destroy the Customer Data from the Solution. 12.5 Survival. The provisions of Sections 6, 7, 8, 9, 10, 11, 12.3, and 13 shall survive the termination of this Agreement. 13. General Provisions. 13.1 Binding Agreement. This Agreement is binding on the heirs, executors, administrators, successors and permitted assigns of the Parties. 13.2 Confidentiality. During the term of this Agreement and at all times thereafter, each Party shall, and shall ensure that its respective directors, officers, employees, contractors and agents hold any and all Confidential Information disclosed by the other Party pursuant to this Agreement in the strictest confidence and in accordance with state and federal law, including the Florida Public Records Act. . "Confidential Information" shall include without limitation all information and records whether oral or written or disclosed prior to or subsequent to the execution of this Agreement which has been marked "Confidential" or should reasonably be considered confidential, such as patents, utilization review, Miami PD - NCA Street Smart (managed services) (L. Bedard/vh) (05012016) 9 duality assessment, finances, volume of business, methods of operation, trade secrets, contracts, and prices, and price -related information. Each Party shall destroy any Confidential Information received from the other following the Event for which the Solution has been designed. Each Party agrees that disclosure of the other's Confidential Information other than in accordance with this Agreement shall cause irreparable injury to the other, and that the other Party shall be entitled to injunctive relief to prevent one another's breach of this Section. Nothing in this Section shall restrict either Party with respect to information or data: (i) that such Party rightfully possessed before it received the information from the other, as evidenced by written documentation of such possession; (ii) that subsequently becomes publicly available through no fault of such Party; (iii) that is subsequently furnished rightfully to such Party by a third party (excluding affiliates of the other) not known to be under restrictions on use or disclosure; (iv) that is required to be disclosed by applicable law (solely to the extent of such requirement), provided that the disclosing Party will exercise reasonable efforts to notify the other prior to disclosure; or (v) that is independently developed by such Party without any confidential information of the other. 13.3 Assignment. This Agreement is not assignable by either Party without the prior written consent of the other. 13.4 No Waiver. If either Party waives any breach by the other, it shall not be construed as a waiver of any subsequent breach. Each Party's rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein. 13.5 Electronic Media. A copy of this Agreement and the signatures affixed hereto transmitted and. delivered by facsimile or electronic mail shall be deemed to be originals for all purposes. In addition, either Party may scan or otherwise convert this Agreement into an electronic and/or digital media file, and a copy of this Agreement or the electronic data file produced from any such electronic or digital media format may serve and be given the same legal force and effect as the original. 13.6 Right to Subcontract. NC4 may subcontract for the provision of certain portions of the Solution under this Agreement. Customer acknowledges and agrees that the provisions of this Agreement inure to the benefit of and are applicable to any subcontractors engaged by NC4 to provide any service set forth herein to Customer, and bind Customer to said subcontractor(s) with the same force and effect as they bind Customer to NC4. 13.7 Entire Agreement. 'This Agreement, including the attachments hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous oral or written statements, proposals, communications, negotiations, agreements, advertising and marketing including correspondence, brochures and Internet websites, 13.8 Force Majeure. Neither Party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder when such delay is due to earthquake, flood, fire, hurricane, power failure, tornado, terror, riot, war, or other event or disaster beyond the Party's control, provided the Party uses reasonable efforts seeking to (a) mitigate the consequences and (b) promptly notify the other Party. 13.9 Notices. Any notice required or permitted under this Agreement shall be in writing, shall reference this Agreement and will be deemed given: (i) upon personal delivery to the appropriate address; or (ii) three (3) business days after the date of mailing if sent by certified or registered mail; or (iii) one (1) business day after the date of deposit with a commercial courier service offering next business day service with confirmation of delivery. All communications shall be sent to the contact information set forth below or to such other contact information as may be designated by a Party by giving written notice to the other Party pursuant to this provision: Miami PD - NC4 Street Smart (managed services) (L, Bedard/vh) (05012016) 10 To NC4: NC4 Public Sector LLC 100 N. Sepulveda Blvd, Suite 200 E1 Segundo, CA 90245 Attn: Randall Smith Fax: 310-606-4309 With copy to: NC4 Public Sector LLC 100 N. Sepulveda Blvd, Suite 200 El Segundo, CA 90245 Attn: Contracts & Legal Fax: 310-606-4309 To Customer: City of Miami Police Department Attn: Police Legal Advisor 400 NW 2" d Avenue Miami, FL 33128 13.10 Severability. If any provision of this Agreement is determined by a court or arbitrator of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement, and such provisions shall be interpreted so as to effectuate the intent and purpose of the Parties. 13.11 Waiver and Modification. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. Any waiver, amendment, supplementation or other modification or supplementation of any provision of this Agreement shall be effective only if in writing and signed by both Parties. 13.12 Relationship of Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of legal association between the Parties and each Party is an independent contractor. 13.13 Attorneys_' Fees and Costs. In any action or proceeding to enforce rights under this Agreement, each party shall bear their own attorneys' fees incurred. 13.14 Count�artsa This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed an original. 13.15 Non -Solicitation of Employees. Each Party agrees that during the term of this Agreement and for a period of two years after its expiration or termination, neither Party will solicit or encourage any employee or consultant to discontinue their employment or engagement with the other Party. This provision shall not apply to employment opportunities of either Party advertised to the general public (e.g., newspaper advertisement, internet advertisement or listing, etc.) to which an employee of either Party may respond. 13.16 Compliance with Laws. The Parties agree to fully comply with all laws and regulations in the performance of this Agreement, including all relevant export and import laws and regulations of the United States. Further, if applicable, Customer agrees to fully comply with 28 CFR Part 23. 13.17 Choice of Law; Dispute Resolution; Jurisdiction; Venue. This Agreement and all amendments, modifications, alterations, or supplements hereto, and the rights of the Parties hereunder Miami PD - NC4 Street Smart. (managed services) (L. Bedard/vh) (05012016) 11 shall be construed under, and be governed by, the substantive laws of the State of California in the United States of America, without regard to any conflicts of law provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. If there is a dispute between the Parties relating to this Agreement, the Parties shall first attempt to resolve the dispute by escalating the dispute within their respective organizations. If they are unable to resolve the dispute within thirty (30) days after the complaining Party's written notice to the other Party, the Parties will seek to resolve the dispute through arbitration conducted in Miami -Dade County, Florida, in accordance with. the commercial rules of the American Arbitration Association. Any award rendered by the arbitrator shall be final and binding on the Parties, and may be entered as a judgment by any court of competent jurisdiction. Costs of arbitration (excluding reasonable attorneys' fees) shalt be made a part of the arbitrator's award. Notwithstanding the foregoing, in the event irreparable injury can be shown, either Party may obtain injunctive relief exclusively in the appropriate federal or state court in Los Angeles County, California, USA. Any litigation arising out of or relating to this Agreement shall take place nonexclusively in the appropriate state or federal court in Miami -Dade County, Florida, USA. 13.1.8 Paragraph Headings. The paragraph titles used herein are for convenience of the Parties only and shall not be considered in construing the provisions of this Agreement. 13.19 Publicity. No publicity, including, but not limited to press releases concerning this Agreement, or the relationship between the Parties, shall be issued by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. 13.20 Order of Precedence; Governing Documents. If a purchase order or similar ordering document is issued by Customer for the Solution and/or Services hereunder, the Parties hereby agree that the terms and conditions of this Agreement shall govern and take precedence over any general terms and conditions of such purchase order or similar document. If there is any conflict between the terms and conditions of this Agreement and any purchase order or similar document, the terms and conditions of this Agreement shall govern. 13.21 Authority to Bind. Each Party hereby represents and warrants that the Party signing below has full right, power and authority to enter into this Agreement and bind such Party accordingly. [INTENTIONALLY LEFT BLANK - SIGNATURES ON NEXT PAGE] Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) 12 IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed or caused this Agreement to be executed by their duly authorized representatives as of the date set forth below. NC4 PUBLIC SECTOR LLC 1-3 Name: Randall Smith Title: Chief Financial Officer Date Approved as to Legal Form: Victoria Mendez, City Attorney Insurance Approved: Anne -Marie Sharpe, Risk Manager CITY OF MIAMI -0 Name: Daniel Alfonso Title: City Manager Attest" Todd Hannon, City Clerk Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (06012016) 13 SCHEDULE A PRODUCTS & PRICING SCHEDULE Customer Name and Address: City of Miami Police Department ("Customer") 400 NW 2°d Avenue Miami, FL 33128 Attn: Chief Jorge H. Gomez Prepared By: Lonny Bedard NC4 Contracts Rep: Vicki Hamilton Initial Term: Three (3) Years following the Effective Date of Agreement Product/Services Selected: NC4 Street SmartTM w/Managed Services Number of Sworn Officers: 1,140 LICENSE FEES Initial License Set Up Fee (One-time) Includes installation of NC4 Street Smart and connection to one (1) feed (e.g., computer aided dispatch (CAD), records management system (RMS), or offender data $ 33,000.00 base). If additional feeds, configuration or customization are desired, additional fees will apply at NC4's then -current Professional Services rates. NC4 Street Smart Software License (One-time) $ 243,600.00 Total One -Time License Fees $ 276,600.00 AND SUPPORT _MAINTENANCE Three (3) Years Maintenance & Support at $63,336.00 per year $ 190,008.00 MANAGED SERVICES* Managed Services Set Up Fee (One -Time) $ 19,000.00 Annual Managed Services — Year 1 $ 31,000.00 Annual Managed Services — Year 2 $ 32,550.00 Annual Managed Services— Year 3 $ 34,177.50 Total Managed Services Fees; Three (3) Year Non -cancellable Contract $ 116,727.50 *36 Month Contract Required, 5% annual increase F11129101 Kim. i °' W. Fees $ 276,600.00 _License _ Maintenance & Support Fees (3 years) $ 190,008.00 Managed Services (3 years) $ 116,727.50 Total Fees w/Managed Services (3 years) $ 583,335.50 IN VOICING 1 MM9NT TV"S Invoicing. NC4 will invoice as follows: Year One Fees (less maintenance and support), invoiced at contract signing: $ 326,600.00 Year One Maintenance and Support, invoiced monthly in arrears ($63,336/12) $ 5,278 per month Year Two Fees (less maintenance and support), invoiced in advance at lsk anniversary date: $ 32,550.00 Year Two Maintenance and Support, invoiced monthly in arrears ($63,336/12) $ 5,278 per month Year Three Fees (less maintenance and support), invoiced in advance at 2nd anniversary date: $ 34,177.50 Year Three Maintenance and Support, invoiced monthly in arrears ($63,336/12) $ 5,278 per month Miami PD - NC4 Street Smart (managed services) (L Bedard/vh) (v05012016) 14 Payment Terms. Payments are due no later than forty-five (45) days after receipt of NC4 invoice. Additional Fees. Credit card payments are subject to a 3% processing fee. Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) 15 SCHEDULE B NC4 STREET SMARUm MANAGED SERVICES Service Levels and Standard Customer Support Policy Three ways to contact Support: Phone: 800-209-2312 Email: support@nc4.us Support site: https:Hsupport.nc4.us Uptime Availability NC4 will maintain 98% total availability of the software and Service to Company (for purposes of this support policy, "Company" shall refer to NC4's Customer) measured on a monthly basis, excluding scheduled maintenance of 4 hours per month or less ("Scheduled Maintenance"). NC4 will provide Company with a minimum of forty-eight (48) hour notice of any Scheduled Maintenance to those person(s) specified by Company in writing as the primary contact(s). Scheduled Maintenance will be performed outside of normal business hours, as defined. Monday through Friday (except holidays) from 8AM ET to 8PM ET ("Normal Business Hours".) Emergency repairs will be performed as required and NC4 will promptly notify Company of such action. Service Level Definitions LEVEL 1-- Support provides the following services: • Forgotten ID's and passwords • Account expiry issues (ID and password changes) • Day-to-day use of the NC4 Software + Connectivity issues including LAN, wireless access from the patrol cars and Internet access • Initial triage of the support request to determine the next level of support, if required • Logging the call and tracking its progress through to resolution LEVEL 2 — Support provides the following services which include a more detailed understanding of the inner workings of the application: Additional contact with the customer to continue to triage the support request and resolve items such as: o Data issues including integrity and accuracy o Problems with maps including geo-location inaccuracies o Problem with CAD or other related Crime data feeds o Problems with included third -party components o Server imbalance o Performance issue o Interface with Level 3 support team to help identify a resolution LEVEL 3 — Support services provide code level changes to the application • Identification and resolution of a software failure which requires a patch or fix • Provide assistance to level 2 support to identify problems and provide solutions that can be applied. without code changes Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (05012016) 16 Severities Severity I High Priority Critical Definition: System down or unavailable for use. To report a severity 1 problem or to submit a severity 1 service request, the customer must provide two contact names (primary and backup) and their phone numbers before the request is accepted as severity 1. Initial Response All severity 1 problem reports or service requests will be Time responded to within 2 hrs. This type of request is available for submission and response 24x7. NC4 will provide the status of the work request every hour on the hour via telephone to the customer via the contact points mentioned above. Resolution Time _ As the resolution time depends on the type of problem or request, it cannot be determined in advance. NC4 support _ Resolution Time team will work 24 hrs. a day, 7 days a week until the problem is resolved. During this period, the customer must be available to help with the problem determination and resolution. Once the problem is identified, NC4 will provide Licensee with a resolution time ("Resolution Commitment Date"). Severity 2 Medium Priority Definition: Major fiunctions down or not working as expected. Adversely affects and prevents the accomplislunent of an operational or mission essential function. Typically a workaround is not available. Initial Response All severity 2 problem reports or service requests can be Time submitted to the Support Center 24/7. However, responses to these requests will only be made between Monday through Friday, SAM EST to 8PM EST. Requests will be responded to within 4 hrs. during these business hours. NC4 will provide the status of the work request on a daily basis at the beginning of each day via telephone to the requester or by email. _ Resolution Time As the resolution time is depended on the type of problem or request, it cannot be determined in advance. NC4 support team will work on the problem / request during normal office hours until the problem is resolved. During this period, the customer must be available to help with the problem determination and resolution. Once the problem is identified, NC4 will provide Licensee with a resolution time ("Resolution Commitment Date"). Miami PD - NC4 Street Smart (managed services) (L, Bedard/vh) (v05012016) 17 Severity 3 Definition: Low Priority Minor function down or not working as expected / cosmetic Time issues. Adversely affects (but does not prevent) the accomplishment of an operational or mission essential function. Typically a workaround is available. Priority Three Defects do not include aborts or loss of data. Initial Response All severity 3 problem reports or service requests can be Time submitted to the Support Center 24/7. However, responses to these requests will only be made between Monday through Friday, 8AM EST and 8PM EST. During these business hours, requests will be responded to within 24 hrs. NC4 will provide the status of the work request every three days the beginning of each day via telephone to the requester or by email. Resolution Time As the resolution time depends on the type of problem or request, it cannot be determined in advance. NC4 support team will work on the problem / request during normal office hours until the problem is resolved. During this period, the customer must be available to help with the problem determination and resolution. Severity 4 Low Priority Definition: Enhancement, feature/user request or training. May include password resets or training questions. Initial Response All severity 4 problem reports or service requests can be Time submitted to the Support Center 24/7. However, responses to these requests will only be made between Monday through Friday, 8AM EST and 8PM EST. During these business hours, requests will be responded to within 24 hrs. Resolution Time NC4 support team will work on the problem / request during nonnal office hours until the problem is resolved with the assistance of the customer. Remedy If NC4 does not meet its system availability commitment of 98%, as set forth above, upon Company's timely request, which request shall be made no later than ninety (90) days following any such event, a credit will be applied based on the proportion of such deficiency (the amount less than 98%) to the total number of hours in a month. Company may apply the credit against the next applicable subsequent billing period or renewal term fees. Service credits will only apply to problems associated with NC4 and its network or data center. No credit will be given if it is determined the problem is at Company, the Internet, or otherwise out of NC4's control. Miami PD - NCA Street Smart (managed services) (L. Bedard/vh) (05012016) 18 SCHEDULE C INSURANCE REQUIREMENTS SOFTWARE LICENSE AND MANAGED SERVICES AGREEMENT NC4 I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Personal and Adv. Injury $ 1,000,000 Products/Completed Operations $ 1,000,000 B, Endorsements Required City of Miami included as an Additional Insured Primary and Non Contributory Endorsement Contingent and Contractual Liability Waiver of Subrogation II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit Miami PD - NC4 Street Smart (managed services) (L. Bedard/vh) (v05012016) 19 IV. Professional/E&O Liability Combined Single Limit Each Claim $ 1,000,000 General Aggregate Limit $ 1,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change.. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: THE COMPANY MUST BE RATED NO LESS THAN "A" AS TO MANAGEMENT, AND NO LESS THAN "CLASS V" AS TO FINANCIAL STRENGTH, BY THE LATEST EDITION OF BEST'S INSURANCE GUIDE, PUBLISHED BY A.M. BEST COMPANY, OLDWICK, NEW JERSEY, OR ITS EQUIVALENT. ALL POLICIES AND /OR CERTIFICATES OF INSURANCE ARE SUBJECT TO REVIEW AND VERIFICATION BY RISK MANAGEMENT PRIOR TO INSURANCE APPROVAL. Miami PD - NC4 Street Smart (inanaged services) (L. Bedard/vh) (v05012016) 20