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HomeMy WebLinkAboutAGENCY 360o Exhibit A o' 3vC2) ily'fie� . NOT NiaC:?t!I y WOW I)i11Y PROC F0 GLEN i)F C0hild(,gE LIAR 18 2Q1q Santa Ana Police Department ACturn tJMUINA.L Exectred Copy to GDTC (M -30/T11) N-2019-064 Date Agency360 San 10, 2019 12175 Visionary Way Expiry Suite 104 Apr 10, 2019 FISHERS IN 46038 Quote Number USA QU•0873 Lu(TZ g FD)7 Description Quantity Unit Price Tax Amount USD One time installation fee to build site includes (1) one-hour 100 1,000.00 Taxon Sales 1,000.00 online training sessions to assist in setup and configuration of the system, access to user guides, online support portal, and getting started emaft. The Agency360 Platform Basic subscription provides an 1.00 1,697.00 Tax on Sales 1,697.00 agency -wide license for 1 onboarding program. it also includes hosting, upgrades, and basic support including access to our support portal. Subtotal 2.697M A lroved to Form Tamara Bogosian Assistant City Attorney TOTAL USD 2,697.00 MAR 06'19 03:34 Exhibit B AGENCY360 TERMS OF USE Agency360, LLC, a limited liability company of the State of Indiana (referred to as "Ageney360," "us," or "we"), provides the Agency360.com and various related services (together referred to as "this Site") subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the "Agreement"), as well as any other subsequent written agreement entered into between Agency360 and the City of Santa Ana, a charter city and municipal corporation of the State of California (referred to as "Customer" or "you"). Agency360 will provide Customer with access to and use of certain cloud -based software -as -a -service offering(s) for electronic content and relational database management of a Customer's proprietary or public documents, data, policies, procedures and/or materials utilizing Agency360's software application ("Software"). The Services will be deemed to include updated versions of same that are made available to Customer as part of maintenance and support services. BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THIS SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE EXIT THE SITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THIS SITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THIS SITE, IS TO STOP USING THE SITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. THIS AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE. When using services or materials on this Site, Users (as defined below) shall be subject to any posted guidelines or rules applicable to such services or materials that may contain terms and conditions in addition to those in this Agreement, only upon written notice and consent. This Agreement is effective as of January 29, 2019. We reserve the right to change this Agreement from time to time with written notice to you. Your continued use of the Software, Services or Site, after such notification, will constitute your acknowledgement of the modified Agreement and your agreement to abide and be bound by the modified Agreement. 1. Definitions. "Administrator(s)" means the User(s) designated by Customer who are responsible for administering the Service and who are issued an Administrator login by Agency360. {°Affiliates" means any entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, a party to this Agreement, by way of majority voting equity ownership. "Agreement" means these terms and conditions, together with any and all Order Forms referencing these terms and conditions, the Schedules attached hereto and any other statements of work or exhibits. "Content" means any information, data, materials, templates, examples, forms, text, communications, software, photos, video, graphics, music, sounds, and other material and services that can be viewed by Users. "Customer" means, the customer entity that has executed an Order Form with Agency360. "Customer Data" means all electronic data or information submitted by Customer or its Affiliates to and stored by the Software, Services or Site. "Fees" means all amounts, charges, costs, or fees charged by Agency360 to Customer for the Services and/or access to the Software or Site. "Initial Term" means the initial subscription term specified in the applicable Order Form, excluding any renewals terms. "Intellectual Property Rights" means all copyrights, trademarks, service marks, patents or other proprietary rights and laws relating to the protection of intellectual property. "Order Form" means an Agency360 order form, quotation, or proposal for initial purchase, add-on purchase, or renewal, or other modification or amendment to this Agreement, in the name of, and executed by, Customer and accepted by Agency360 that specifies the Services and professional services to be provided by Agency360 subject to the terms of this Agreement. The Order Form will be: (a) used by Customer to order such Services; (b) executed by the Customer and Agency360; and (c) subject to this Agreement, The Order Form together with this Agreement forms a binding contract between Customer and Agency360. "Site" means the access controlled, server -based site made available to Customer and Customer's Users of the Software and Services located on the Internet at http://agency360.com. "Term" means the Initial Term specified in the applicable Order Form and any renewal terms "Third Party Applications', means online, Web -based applications or services, and offline software products that are provided by third parties and may operate in conjunction with the Services. "Users" means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Services have been purchased on an Order Form, and who have been supplied user identifications and passwords by Customer. 2. General Terms of Access to the Services (a) License. Subject to the terms of this Agreement and payment of the applicable Fees, Agency360 grants to Customer during the Term a non-exclusive, non -transferable license to permit Users to use the Services in accordance with the use parameters, pricing, and payment terms described in this Agreement and the applicable Order Form solely for Customer's own internal business purposes. The provision of the Services and license hereunder is not contingent upon the delivery of any future features or functionality of the Software, nor dependent on any verbal or written promises made by Agency360 regarding future features, use, or functionality of the Software. (b) Customer Must Have Internet Access. DSL, cable, or another high-speed Internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect the Customer network to the Services, including, but not limited to, "browser" software that supports protocols utilized by the Services. Agency360 assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Agency360. (c) Accuracy of Customer's Contact Information. Customer shall provide Agency360 with accurate, current, and complete information on Customer's legal business name, address, email address, and phone number, and throughout the Term maintain and promptly update this information if it should change. (d) Users, Passwords, Access, and Notification. Customer, through its Administrator, shall authorize access to and assign unique passwords and user names up to the number of Users purchased by Customer on the Order Form. User logins are for designated Users and cannot be shared or used by more than one User. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall promptly notify Agency360 of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any User's usernames or passwords. Customer is responsible for maintaining the security and confidentiality of all User's username and passwords. (e) Use of the Services. Customer is responsible for all activities conducted by its Users and for its Users' compliance with this Agreement, including the content of all Customer Data. Customer shall be solely responsible for the following obligations: (i) Customer and its Users shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, Services, or Site, including without limitation those related to privacy, electronic communications, and anti -spam legislation. (ii) Customer shall not transmit or store infringing material in the Software, Services, or Site. (iii) Except as permitted by this Agreement, no part of the Software, Services, or Site may be copied, reproduced, distributed, republished, displayed, posted, or transmitted in any form or by any means. Customer and Users shall not "frame" or "mirror" the Software, Services or Site or create Internet links to the Services that include log -in information, user names, passwords, and/or secure cookies. (iv) Customer shall not sublicense, resell, or supply the Software, Services, or Site for use in or for the benefit of any other organization, entity, business, enterprise, or third party without Agency360's advance written consent. Customer shall not share Software -specific license codes, usernames, or passwords with any third -parties. Use, resale, or exploitation of the Software, Services, or Site except as expressly permitted hereunder is prohibited. (v) Customer is solely responsible for the contents of its communications through the Site. By posting information in or otherwise using any communications service or interactive service that may be available on or through the Site, Customer agrees that it shall not upload, share, post, or otherwise distribute or facilitate distribution of any content ("Prohibited Content") — including text, communications, software, images, sounds, data, or other information — that: (A) is unlawful, threatening, abusive, harassing, defamatory, fraudulent, invasive of another's privacy, sexually explicit, discriminatory, or otherwise violates this agreement; 3 (B) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (C) contains software viruses or any other computer code, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; (D) impersonates any person or entity, including any of our employees or representatives; or (E) is protected by the Health Insurance Portability Accountability Act ("HIPAA"). (vi) Customer shall not use its account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Site may be available to Customer or other Users. Customer shall not interfere with anyone else's use of the Site or Services. Users who violate systems or network security may incur criminal or civil liability. (vii) Customer shall not take any actions that could or would reverse engineer, decompile, disassemble, or duplicate the Software, Services, or Site, or any other Agency360 technology. Customer and Users shall not attempt to derive any of the of Software's source code. Customer shall not use its access granted hereunder to (A) build a competitive product or service; (B) make or have made a product or service using similar ideas, features, functions, or concepts as the Software, Services, or Site; or (C) make derivative works based upon the Software, Services, or Site; or (D) copy any ideas, features, functions, or concepts, as the Software, Services,. or Site. (f) Agency360's Rights and Obligations. (i) Agency360 shall comply with all applicable local, state, and federal, and laws, and, regulations in connection with its provision of the Software, Services, or Site, including without limitation, those related to privacy, confidentiality, electronic communications, and anti -spam legislation. (ii) Agency360 shall provide customer with accurate, current, and complete information on Agency360's legal business name, address, email address, and phone number, and throughout the Term maintain and promptly update this information if it should change. (iii) Agency360 shall use commercially reasonable efforts to make the Software, Services, and/or Site available to Customer twenty-four (24) hours per day, seven (7) days per week, subject to the following exceptions: (A) Any planned downtime of more than 4 hours for which Agency360 will give twenty-four (24) hours or more notice. (B) Any unavailability caused by circumstances beyond Agency360's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, 4 civil unrest, acts of terror, strikes or other labor problems (other than those involving Agency360 employees, hosting facility employees, or security company employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Agency360's possession or reasonable control, and network intrusions or denial of service attacks, which, in any such case, could not have been prevented through reasonable precaution ("Force Majeure"). In such cases, Agency 360 will use commercially reasonable efforts to make the Software, Services, and/or Site available as soon as possible thereafter. (ii) Customer and Users understand and agree that temporary interruptions of the Software, Services, or Site may occur as normal events, and further understand and agree that Agency360 may have no control over third party networks Customers or Users may access in the course of the use of this Site, and therefore, delays and disruption of other network transmissions are completely beyond Agency360's control. Any interruptions or downtime of less than one (l) hour will not be considered a violation of this Agreement. (iii) Customer and Users understand and agree that Agency360 assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Customer or User communications or personalization settings. Agency360 neither endorses nor assumes any liability for the contents of any material uploaded or submitted by Users. We generally do not pre-screen, monitor, or edit the content posted by Users. (iv) Agency360 reserves the sole right to either modify the Software, Services, or Site, including any features therein, at any time with or without notice to Customers or Users. Agency360 shall not be liable to Customers, Users or any third party should it exercise such right. Subject to the other terms of this Agreement,modifications may include, but are not limited to, changes in the pricing structure, the addition of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then -current Software, Services or Site will also be subject to this Agreement. (g) Security. Agency360 shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Customer Data. Agency360 uses United States based Microsoft Azure government data centers with high availability servers and their automatic daily backup systems to protect all data contained in the Software and Site. If the Software, Services, or Site are impacted by any failure or incident involving data loss, Agency360 shall take all commercially reasonable actions to restore the data. NOTWITHSTANDING THE FOREGOING, AGENCY360 MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING RECOVERY FROM DATA LOSS. Customer and Users acknowledge and agree that they are solely responsible for conducting regular backup of the information and data exchanged through the Software or Site. This Site is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although Agency360 takes reasonable precautions to preserve and protect the material you upload to the Site, you should not rely on the Site as your only storage facility. Customers and Users should preserve backup copies of any digital data, information or other materials that you have uploaded or downloaded from the Site. You agree not to hold us responsible for any damage to, any deletion of, or any failure to store your tiles, data or information exchanged through the Site. (h) Suspension for Ongoing Harm. If Customer or Users breach this Section 2. or any other term of this Agreement, Customer agrees that Agency360 may (i) terminate this Agreement pursuant to Section g: or (ii) with timely telephonic or electronic notice to Customer, suspend access to the Services if Agency360 reasonably concludes that the Services (A) are being used to engage in denial of service attacks or illegal activity; or (B) are causing immediate, material, and/or ongoing harm to Agency360 or others. If Agency360 suspends Customer's access to the Services, Agency360 shall use commercially reasonable efforts to limit the suspension to the offending portion of the Services and resolve the issues causing the suspension of Services. Customer further agrees that Agency360 shall not be liable to Customer nor to any third party for any suspension of the Services under such circumstances as described in this Section. Customer and Users acknowledge that Agency360 will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations. 3. Confidentiality. (a) Confidential Information. The Customer and Agency360, as the case may be, (the "Receiving Party") shall hold in trust for the other party hereto (the "Disclosing Party"), shall not disclose to any person, firm or entity other than the Receiving Party's employees and agents who have a need to know such information in order to perform the Services, and shall not use in any way detrimental to the Disclosing Party, any confidential or proprietary information of the Disclosing Party ("Confidential Information"). For purposes of this Agreement, "Confidential Information" shall include Customer Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Services, and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the Receiving Party; (iv) the Receiving Party becomes aware of from a third party not bound by non -disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (v) is independently developed by.the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (vi) is aggregate data regarding use of Agency360's products and services that does not contain any personally identifiable or Customer -specific information. (b) Non -Disclosure Obligations. Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (iv) to make Confidential Information available to authorized persons only on a "need to know" basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation. 4. Intellectual Property. (a) Ownership of Customer Data. As between Agency360 and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer, provided that in the event a Agency360 aggregates and/or anonymizes Customer Data resulting from Customer's use of any Services and anonymizes that information, or aggregates such Customer Data with that of other customers in a way that does not reveal Customer's identity or personally identifiable information, Agency360 may use such aggregated and/or anonymized Customer Data in the manner and for such purposes as are set forth in Agency360's Privacy Policy, (b) Responsibility for Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and content permissions for all Customer Data. All Customer Data available through the Site by Customer and Users has been created, designed, or provided solely by Customer or third -parties without the participation or involvement of Agency360. Agency360 assumes no responsibility and makes no representations, warranties, or guarantees as to the Customer Data or any other content available on the Site as to accuracy, relevance, propriety, legality, or usefulness to the Customer, Users or any third -parties. (c) License to Customer Data. Subject to the terms and conditions of this Agreement, Customer and Users grant to Agency360 and its Affiliates a nonexclusive, paid-up, perpetual, and worldwide right to copy, distribute, display, perform, publish, translate, adapt, modify, and otherwise use certain Customer Data, such as templates, samples, or drafts of internal policies, procedures, checklists, forms, or agreements, provided that such materials do not include Customer's Confidential Information. Any rights not expressly granted herein are reserved by Customer. Customer service marks and trademarks, logos, and product and service names are proprietary to Customer. Agency360 agrees not to display or use Customer's proprietary information in any manner, nor to allow any affiliated third parties to use the same, without Customer's express prior written permission. (d) Samples or Forms. The Software, Services, or Site may include sample or form agreements, policies, procedures, checklists, memoranda, letters, or other documents, including financially or legally significant documents such as contracts and other items ("Forms"). These Forms are provided solely as examples of typical documents of their kind, and the delivery and use of Forms does not constitute legal, accounting, or other professional advice. Under no circumstances will Agency360 or its Affiliates be liable for any loss or damages caused by your reliance on information or advice obtained through this Site, including your use of any of the Forms. It is your responsibility to evaluate the accuracy, completeness, or usefulness of any information, opinions, advice, Forms, or other Content available on or through Site. In particular, you are urged to consult an appropriate professional licensed in your jurisdiction before using any Forms or otherwise relying on any legal, accounting, or other professional advice or information obtained on or through this Site. (e) Agency360 Intellectual Property. Customer agrees that all rights, title, and interest in and to all intellectual property in the Services and documentation (including all updates, enhancements, and derivative works thereof and thereto) are owned exclusively by Agency360 or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to Customer does not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. In addition, Agency360 shall have a royalty -free, worldwide, transferable, sub -licensable, irrevocable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the operation of the Services. Any rights not expressly granted herein are reserved by Agency360. Agency360 service marks and trademarks, logos, and product and service names are marks of Agency360 (the "Agency360 Marks"). Customer agrees not to display or use the Agency360 Marks in any manner without Agency360's express prior written permission. The trademarks, logos, and service marks of Third Party Application providers ("Marks") are the 7 property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party who may own the Mark. By accepting this Agreement, you acknowledge and agree that all Content presented to you on this Site is protected by Intellectual Property Rights, and is the sole property of Agency360 and/or its Affiliates. You are only permitted to use the Content as expressly authorized by Agency360. Except as otherwise permitted expressly herein, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this Site in any form or by any means without prior written permission from Agency360, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this Site. Any unauthorized use of the materials appearing on this Site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. Neither Agency360 nor its Affiliates warrant or represent that your use of materials displayed on, or obtained through, this Site will not infringe the rights of third parties. In compliance with the Digital Millennium Copyright Act, Users and other persons can report an infringement of intellectual property rights toSUDD ort aeencv360.com. 5. Charges and Payment of Fees. (a) Fees and Charges. Customer shall pay all Fees in accordance with the Order Form which outlines Fees and billing terms that are in effect at the time a fee or charge is due and payable. Customer may be required to provide Agency360 with valid credit card, EFT or approved purchase order information as a condition to signing up for the Services. Agency360 reserves the right to modify its Fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail. If Customer elects to add additional products, services, features, functionalities, or service levels, Agency360 may increase the Fees or amounts due from Customer, subject to the agreement of both parties, which may be obtained by email. Except to the degree Customer is required to disclose any information by law, pricing terms are confidential, and Customer shall not disclose them: to any third party. (b) Billing. Agency360 charges and collects in advance for use of the Services, which are provided on an annual basis. Agency360 will automatically renew and bill your credit or debit card or EFT account or issue an invoice to you on a yearly basis (or as otherwise specified in the Order Form). All payments shall be made to Agency360 in U.S. dollars within thirty (30) days of the date of invoice. If Customer elects to pay Agency360 by credit card, Customer shall provide Agency360 with complete and accurate credit or debit card, EFT information, billing and contact information and shall maintain and update such information as needed. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. (c) Renewal. Fees for any renewals will not exceed more than one hundred and ten percent (I 10%) to the Fees for Services in effect during the prior Term, which shall be effective upon renewal and thereafter. Fees for services other than the Services will be charged on an as -quoted basis. (d) Taxes. The Fees payable by Customer hereunder are net amounts to be received by Agency360, exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by Customer or imposed on Agency360 (other than taxes based on Agency360's income) in the performance of this Agreement or otherwise due because this Agreement. Customer shall pay any and all such taxes and duties, customs fees and similar charges, whether directly to the appropriate taring authority or by reimbursing Agency360 for payments it made on Customer's behalf. If Agency360 has a legal obligation to pay or collect taxes for which you are 0 responsible, Agency360 shall invoice Customer for such amounts and Customer shall pay Agency360 for the taxes unless Customer provides Agency360 with a valid tax exemption certificate issued by the appropriate taxing authority. (e) Failure to Pay; Suspension. Agency360 reserves the right to either terminate this Agreement and/or suspend Customer's and any Users' access to and/or use of the Software, Services or Site for any accounts for which any payment is due but unpaid but only after Agency360 has provided Customer at least two (2) delinquency notices and at least thirty (30) days have passed since the transmission of the first notice. Customer agrees that Agency360 shall not be liable to Customer or to any Users or other third party for any suspension of the Services pursuant to this Section. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer shall continue to be charged for all Fees during any period of suspension. Agency360 may impose a reconnection fee in the event Customer's account or access is suspended and thereafter Customer requests access to the Software, Services or Site. if Agency360 employs an attorney to enforce the payment terms of this Agreement, it may recover its actual attorney's fees and costs, including expert witness fees. 6. Warranties. (a) Warranty of Functionality. Agency360 warrants that the Services will conform to the Agreement applicable to the Services purchased by Customer. Agency360 also warrants that the Software, Services and Site will be free of viruses, Trojan horses, worms, spyware, or other such malicious code ("Malicious Code"), except for (i) any Malicious Code contained in Customer -uploaded attachments or otherwise originating from Customer or its Users, and (ii) any Malicious Code contained in any Third -Party Applications. (b) DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SERVICES, AND ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, AGENCY360 MAKES NO WARRANTY THAT: (i) THE SOFTWARE, SERVICES, AND SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SOFTWARE, SERVICES, AND SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR -FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, SERVICES, AND SITE WILL BE EFFECTIVE, ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SOFTWARE, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM AGENCY360 OR ITS AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS; (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SOFTWARE, SERVICES, SITE OR THE SERVER(S) THAT MAKE THE SOFTWARE, SERVICES, OR SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE, SERVICES OR SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. AGENCY360 MAY MAKE CHANGES TO SERVICES OR SOFTWARE AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME WITHOUT NOTICE, UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN. THE SOFTWARE OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND AGENCY360 MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. J THE SOFTWARE, SERVICES OR SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AGENCY360 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, THE USE OF THE SOFTWARE OR SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS SITE IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES. (c) Warranty Breach. Customer's sole and exclusive remedy for Agency360's breach of an express warranty relating to the functionality of the Software, Services, or Site shall be that Agency360 shall be required to use commercially reasonable efforts to modify the Software, Services, or Site to achieve in all material respects the functionality described in the Order Form and, if Agency360 is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorated refund of any prepaid Fees for the remaining terminated portion of the Term. Agency360 shall have no obligation with respect to such a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material functionality problem. 7. Limitation of Liability. CUSTOMER AGREES THAT THE CONSIDERATION AGENCY360 IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY AGENCY360 OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW). EXCEPT WITH REGARD TO (a) AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT; or (b) THE INDEMNIFICATION OBLIGATIONS IN SECTION l t THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OF THE SOFTWARE, SERVICES, OR SITE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY IM EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE SERVICES TO CUSTOMER. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 8. Termination With or Without Cause, Expiration. (a) Term. This Agreement will remain in effect for the Initial Term. This Agreement will automatically renew for successive one (1) year periods after the Initial Term, unless terminated by either party with thirty (30) days written notice prior to renewal. (b) Termination. Otherwise, this Agreement will be valid as of the effective date of the Agreement and will continue unless terminated as follows: (i) Agency360 may, in its sole discretion, terminate this Agreement if Customer does not pay any amounts owed to Agency360, including without limitation, all Fees, subject to Section 5(e) of this Agreement; (ii) Agency360, in its sole discretion, may terminate or suspend Customer or Users access to all or part of the Software, Services or Site, without notice, upon discovery of any suspected fraudulent, abusive or illegal activity, which be referred to appropriate law enforcement authorities; (iii) Customer may terminate this Agreement at any time, in whole or in part, for any reason, provided that Customer shall pay any Fees accrued prior to the date of termination; (iv) by either party upon the giving of written notice in the event that the other party fails to discharge any nonmonetary obligations or remedy any nonmonetary default under this Agreement for a period continuing more than thirty (30) days after the non -breaching party shall have given the other party written notice specifying such failure or default and that such failure or default continues to exist as of the date upon which the non -breaching party gives such notice so terminating this Agreement; or (v) by either party upon the giving of written notice in the event that the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium. (c) Termination Policies. Subject to the requirements of Section 8(b) above, the following policies apply to any termination or expiration of this Agreement: (i) Upon termination or expiration of this Agreement for any reason, Agency360 shall be entitled to all of the Fees due under this Agreement for the entire Term. All Fees paid to Agency360 in advance are non-refundable in all circumstances. (ii) Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continue use of the Services. (iii) Upon termination or expiration of this Agreement, unless this Agreement is terminated as a result of Customer's material breach, upon written request, Agency360 shall make available to Customer a copy of the Customer Data within thirty (30) days of termination. Customer and Users agree and acknowledge that after thirty (30) days following a termination or expiration of this Agreement, Agency360 has no obligation to retain the Customer Data or any Content related to Customer or Users and may delete or destroy such Customer Data or Content in its sole and absolute discretion. (iv) Upon termination of this Agreement caused by Customer's or Users' material breach of this Agreement, Customer and Users acknowledge and agree that Agency360 may immediately deactivate or delete Customer's or Users' account and all related information and files in that account and/or bar any further access to such files, Customer Data or this Site. (v) Customer further agrees that Agency360 shall not be liable to Customer nor to any third party for deletion or destruction of Customer Data, unless otherwise stated in this Agreement, and provided that Agency360 is in compliance with the terms of this Section. 9. Implementation. Implementation and training services ordered by Customer as set forth in the applicable Order Form shall be performed in accordance with Agency360's customary practices for the level of services purchased. Agency360 does not provide dedicated project management for Customer during implementation unless separately purchased. Implementation is performed remotely unless otherwise specified. Agency360 is not responsible, and shall not be liable, for Customer's configuration decisions or the Services' ability to allow Customer to comply with all laws and regulations in Customer's unique circumstances, nor for any delays in implementation caused by Customer, including but not limited to, Customer delays in providing clean and validated data, if needed, or Customer delays in making necessary business decisions with respect to the configuration of the Services. 10. Third Party Websites, Products, and Services. Agency360 or third party providers may offer Third Party Applications and related services to Customer or Users hereunder. Customer and Users acknowledge and understand that the use of such Third Party Applications or services shall be subject to separate terms and conditions as set forth on an Order Form or as otherwise provided to Customer. Except as expressly set forth in this Agreement, Agency360 does not warrant any such Third Party Applications or services. If Customer installs or enables Third Party Applications or services for use with the Software, Services, or Site, Customer agrees that Agency360 may allow such third party providers to access Customer Data, but only to the limited extent required for the interoperation of such Third Party Applications with the Services, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. Finally, the continuing availability of the Third Party Application is subject to the continued effectiveness and terms of the contract between Agency360 and the third party provider. 11. Indemnification. (a) Agency360's Indemnity. Agency360 shall, at its own expense, defend, hold harmless, and indemnify Customer, its officers, officials, employees, and agents (collectively, "Customer") from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties ("Claim" or "Claims") alleging that the Software, Services, or Site, as used in accordance with this Agreement, infringes the Intellectual Property Rights of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, M "Losses") to the extent based upon a Claim. Excluded from these indemnification obligations are Claims arising from the (i) use of the Software, Services, or Site in violation of this Agreement or applicable law; (ii) use of the Software, Services or Site after Agency360 notifies Customer to discontinue use because of an infringement claim; (iii) modifications to the Software, Services or Site not made by Agency360; (iv) Claims caused in whole or in part by the acts or omissions of third party suppliers or vendors of any products or services; or (v) use of the Software, Services, or Site in combination with any software, application, or service not provided or expressly approved by Agency360. (b) Agency360's Indemnification Procedure. If a Claim is brought or threatened, Agency360 shall, at its sole option and expense, use commercially reasonable efforts to either (i) procure for Customer the right to continue using the Software, Services, or Site without cost to Customer; (ii) modify or replace all or portions of the Software, Services or Site as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement and provide to the Customer any pro rata refund of the Fees pre -paid under the Agreement for the remaining portion of the Term. The rights and remedies granted to Customer under this Section I I (a) -(b) state Agency360's entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the Intellectual Property Rights of any third party. (c) Disclosure of Customer Data Indemnity. Agency360 shall, at its expense and subject to the limitations set forth in this Section I I. defend, hold harmless, and indemnify Customer from and against any Claims that arise out of or result directly from Agency360's gross negligence or willful misconduct in preventing unauthorized access to Customer Confidential Information and from and against liability for any Losses to the extent based upon such Claims. Agency360 shall, at its own expense, defend, hold harmless, and indemnify Customer from and against any Claims and liability for any Losses from the unauthorized access to Customer Confidential Information. If Agency360 complies with this Section I I(c). Customer shall be entitled, as its sole and exclusive remedy for Claims under this Section 12(c), to receive any indemnification rights and to terminate the Agreement and receive any pro rata refund of the Fees pre -paid under the Agreement for the remaining portion of the Term. The indemnity set forth in this Section I I (c) shall not apply to any Claim arising directly or indirectly from failures of networks, telecommunications, or equipment or other failures of third party suppliers or vendors of any Services, except as otherwise stated in this Agreement. (d) Customer's Indemnity. Customer shall, at its expense, indemnify, defend, and hold harmless Agency360, its Affiliates, its licensors, and their respective directors, officers, employees, and agents from and against any and all Claims arising from this Agreement, and shall hold Customer harmless from and against any and all Losses due to (i) Customer's or Users' use of any Services; (ii) third party Claims of infringement based on information, data, or content Customer submitted in connection with any Services; (iii) any fraud, misrepresentation or other breach of this Agreement by Customer; (iv) third party claims, actions, or allegations brought against Agency360 arising out of Customer's use of the Software, Services, or Site; or (v) whatsoever resulting from Customer or its affiliates', employees', contractors', or agents' breach of HIPAA or any other state or federal medical privacy or electronic privacy laws. (e) Other Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 11 the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising 13 therefrom, The indemnification obligations under this Segtion I I are expressly conditioned upon the indemnified party's compliance with this Section 1l(e), The indemnification obligations contained in this Section 1 I will survive termination of this Agreement for the later of the conclusion of a Claim or one (1) year. 12. Representations and Warranties. (a) Each party represents and warrants, individually, that (i) it has the legal power and authority to enter into this Agreement; and (ii) entering into this Agreement does not conflict with or result in any breach or violation of any of the terms and provisions of any agreement, judgment, order, statute or other instrument or restriction of any kind binding that party. (b) Customer and Users represent and warrant that (1) they have not falsely identified themselves nor provided any false information to gain access to the Software, Services or Site; (ii) that all billing information provided to Agency360 is correct. 13. General Provisions. (a) Notices. Notices between the parties will be by personal delivery, overnight delivery, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or five (5) days after deposit in the mail, or via email with confirmation of receipt. (b) Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision. (e) Headings; Merger; Entire Understanding; Waiver; and Severability. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. This document and any exhibit attached hereto constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. The parties agree that in the event Customer utilizes a purchase order, any term therein that purports to modify or supplement the terms of this Agreement will be void with no force or effect. (d) Modification. No amendments, change, or modification of this Agreement shall be valid unless in writing and signed by the parties. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. No waiver by either party of any default will be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement. (e) No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. (t) Assignment. Customer shall not assign, transfer, or delegate any of its rights and obligations under this Agreement without the prior written consent of an authorized representative of Agency360. Agency 14 360 shall not assign, transfer, or delegate any of its rights and obligations under this Agreement without the written notification to Customer within sixty (60) days of assignment. Any assignment in violation of this Agreement will be void and of no force and effect. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, and permitted assigns. (g) Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other. This Agreement sets forth the Parties' entire liability and exclusive remedies relating to this Agreement and the Services provided to Customer under this Agreement. (h) Publicity. With Customer's consent, Customer agrees that Agency360 may reference Customer's execution of this Agreement and its status as a user of the Site or Services on Agency360's website, in marketing materials and in sales presentations. Agency360 may use Customer's trade names and trademarks in connection with such usage. (i) Force Majeure. Neither party will be liable to the other for any Force Majeure, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible. (j) Counterparts and Electronic Signatures. If this Agreement is manually signed by the parties, (i) it may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement; and (ii) a signature transmitted via facsimile, scanned original, or third party e -signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party's assent to the Agreement. (k) Applicable Terms. If Agency360 amends, modifies, alters, revokes, or otherwise changes any material terms of this Agreement ("Amendment"), Agency360 shall notify Customer by giving notice pursuant to Section 13(a) of the Agreement. The Amendment will be effective upon the renewal of the Agreement unless the Customer notifies Agency360 that it does not accept the Amendment within thirty (30) days after receiving notice thereof. If Customer notifies Agency360 as required, Customer will remain governed by the Agreement terms in effect immediately prior to the Amendment. The Customer may not modify this Agreement unless approved in writing by a duly authorized representative of Agency360. (1) Governing Law. Any claims or disputes asserted against Agency360 will be governed by and construed in accordance with the laws of the State of Indiana without regard to its rules regarding conflict of laws and will be subject to the exclusive jurisdiction of the federal or state courts of Hamilton County, Indiana, and the parties hereby consent to personal jurisdiction and venue in such courts and waive any and all objections thereto or to the convenience of any such forum. Any claims or disputes asserted against Customer will be governed by and construed in accordance with the laws of the state in which Customer is located, without regard to its rules regarding conflict of laws and will be subject to the exclusive jurisdiction of the federal or state courts of the state in which the Customer is located, and the parties hereby consent to personal jurisdiction and venue in such courts and waive any and all objections thereto or to the convenience of any such forum. (m) International Use. Although this Software or Site may be accessible worldwide, Agency360 makes no representation the Services, Software or Site are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal is prohibited. Those who choose 15 to access the Software or Site from other locations do so on their own initiative and are solely responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services, Software or Site is void where prohibited. (n) Survival. Any provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration. The provisions entitled "Confidentiality," "Intellectual Property," "Warranties," Limitation of Liability," "Indemnification" and "General Provisions" will survive the termination of this Agreement in accordance with their terms. IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year last written below. (SIGNATURE PAGE FOLLOWS] 1631 CUSTOMER By: Name: Title: AGENCY360 By: Name: Matt Molter Title: Founder ATTEST: RECOMMENDED FOR APPROVAL: DAVML tef of Police Date Date 17 CITY OF SANTA ANA STEVEN MENDOZA Acting City Manager Ketum ORLUINAL Executed Copyto COTC (M -30/T11)