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HomeMy WebLinkAboutLEXIPOL, LLC.DocuSign Envelope ID: 85058BOD455A-4878-9E2A-5G96622A1 E36 N-2022-347 INSURANCE NOT REQUIRED o WORK MAY PROCEG".. N °CLERK OF THE COUN1111rLEXIPOL DPa: O'.Pd�Cvuc�f.OGT7a13or)Cs��t MASTER SERVICE AGREEMENT Agency's Name: Santa Ana Police Department (CA) Agency's Address: 60 Civic Center Piz POB 1981 Santa Ana, CA 92701 Attention: Lexipol's Address: 2611 Internet Boulevard, Suite 100 Frisco, Texas 75034 Effective Date: 10101/2022 (to be completed by Lexipol upon receipt of signed Agreement) This Master Service Agreement (the "Agreement") is entered into by and between Lexipol, LLC, a Delaware limited liability company ("Lexipol"), which may include one or more Lexipol subsidiary entities, and the Agency identified above. This Agreement consists of: (a) this Cover Sheet (b) Exhibit A - Selected Services and Associated Fees (c) Exhibit B - Terms and Conditions Specific to this Agreement Each individual signing below represents and warrants that they have full and complete authority to bind the party on whose behalf they are signing to all terms and conditions contained in this Agreement. Santa Ana Police Department (CA) Lexipol, LLC �DocuSigned by: Signature: See attached Signature: l "� BOOS �F`3^GZGg9"^ Print Name: Title: Print Name: Jan Roos Title: Vice President & General Counsel Date Signed: Date Signed: 11/4/2022 DocuSlgn Envelope ID: 85058BOD-455A-4878-9E2A-5G96622A1 E36 *The above subscription services, and when applicable, implementation services, shall be invoiced by Lexlpol (or one of its subsidiaries, where applicable) upon the execution of this Agreement, DocuSlgn Envelope ID: 8505880D-455A-4878-9E2A-5D96622A1 E36 Exhibit13 "Terms and Conditions of Service 1. definitions, Ferpurposes of Laxipol's Torras and Conditiod& of Service,(the "Terms'), each of the fallowing capitalized terms will have the meaning Included In this. Section. Other capitalized terms are defined within their respective sectlons below, Depending on the selected Servica(s), Agency may receive support from, • and be Invoiced by,a Lexipo1:subsidlary, including -The Praotorian Groupand/or Cordico Inc. 1.1 "Agency" means the department, agency, office, company, or other entity purchasing anti/or otherwise subscribing to Lescipol products or services. U "Agreement" means the combination of (a) the cover sheet to which these Terms are attached; (b) Lex1pol's-subscription and pricing lnformatlon sheets, which are typically. included anon Exhibit A ("Services Being Purchased and, Relatsd'Fees") or as set for. Iti; any similar pricing sheaf (including by way -of addendum); and (a) these Terms, 43 "Derivative Workiro)" means work(s) based on L,axipol's Subscription Materials, or any, substantive portion thereof. Derivative Works include revision, modification; abridgement, condensation, ,aYtpansirtn or any other form in which the Subscription Materials or any portion thereof are, recast, transformed, oradepted, For purposes of the Agreement, a Derivative Work also Includes any comiclatlon that incorporates any portion of the Subscription Materials,. Further, "Derivative Work" includes any Work considered a "darlvative:work" under (fatted i5tates copyright law, 1.4 "Efieotive bate .means the date specified on the cover sheet to which: these Terris: are attached, .or as otherwise expressly set forth and Agreed upon by Lexipoi and Agency in a writing and defined as the °Effective Date, 1.5 "Tri tlat Term" means the period commencing on the Effective taste and continuing for the length of time indicated on the cover sheet or subscription and pricing sheet provided by Laxipol. if the Initial Terra Is not so Indicated, the default Initial Term is one (1) year from the Effective Date, 1.ii "Service(s)" means all Lexipol product(s) orservtce(s), riciuding one-time and recurring (subscription) services. as may be offered by LeApol and/or its subsidiaries and affiliates from time to time, 1.7 "Subscription Materials" means all policy manuals, supplemental publications, daily training bulletins„ written content, Images, videos, and all other data and multimedia provided by Lexical andlor its licensors through the Services. 2. Terra. The Agreement 'becomes enforceable upon signature by Agency's authorized representatNe. Following the Initial Term, the Agreement shall renew in successive one-year periods thereafter (each a "Renewal Term") unless one party provides written notice of non -renewal to the other party at least thirty (30) days prior to expiration of the then-currait term. The Initial Term and allRenewal 'terms collectively comprise the "Ternm" of the Agreements 3, 7'crrxrinatiasn. 3.1 For Cause, The Agreement relay be terminated by either party, effective immediately, (a) In the event that the other party fails to discharge any obligation or remedy arry default under the Agreement for a period of more than thirty (30) calendar days after It has been given written notice of such failure or default, or (b) in the event that the other party makes an assignment for the benefit of creditors or commences or has oommencod against it any proceeding in bankruptcy; insolvency or reorganization pursuant to the bankruptcy laws of any applicable jurisdiction, 12 For Convenience. The Agreement may be terminated for convenience (including: lack of appropriation of funds by Agency) upon sixty (60) days written notice. Note; fees already paid for Services are not eligible for refund, proration or offset in the event of Agency's termination for convenience, DocuSign Envelope ID: 85058BOD-455A-4878-9E2A-5096622A1 E36 4, EffeotofEx�iad2nor-ermination.Uponthe expiration ortermination ofthe Agreementfor-any reason, Agency's access to Lexlpol s Services shall' cease. TerMinatton or expiration of the Agreement. shall not, however, relieve either party from any obligation or liability -that has accrued under the Agreement prior to the date of such termination or expiration, including payment obligations. The right to terminate the Agreement shall be inaddition. to, and.not in Ilou of, any other remedy,.legal or equitable, to which the partler,areatatitledatlaw orinequity, The provisions ofSections 'i(Definitions),6(Servic -Specific Terms), a(Pirvacy Palloy)r fi (Warranty Di°sciafiner),.-a (Confidentiality), 10=(-Warranty Disclaimer), 11 (Limitation of Liability), IZ(Ganerai Terms), and this 'Section 4 shall survive the expiration or termination of the Agreement for any reason. S. Fees and Inunicina. Unless otherwise agreed upon in writing, Lexlpot (or, If applicable, The Pfaetarlan Group or Cordico Inc,) will invoice Agency at the commencement of the initial Term and thirty (60) days prior to each Renewal Term, Agerlcywill payte Lexippi the fea(s)specified on each invoice within thirty (30) days following receipt of the invoice, All Invoices will Ira, sent to Agency at the address specifla,d on the cover sheet to which these Terms are attached or as otherwise designated by Agency In writing, A[ paymrantswtll be glade by electronic transfer of Immediately available funds orby mailing check to Lexipal at2611 Internet Blvd;' Ste 100, Frisco, TX 7ap84� (Attw Acaourrts Receivable). Lexipot reserves the right to Increase fees for Renews[ Terms, Ali amounts required to be paid under the Agreement are exalusive'of taxesand similar fees now in force or enacted: in thha futuro. Unless otherwise-Axempt, Agency Is responsible for. and Wit pay In full .all taxes property Imposed related to its receipt of Lexlpcl`s Services, exceptfor taxes based on f exlpol's not Income. In the event any amount owed by Agency Is not paid when due; and such failure is notcuredwithin ten (10) days after written notice thereof, then In addition toanyother amount due, Agencyshall pay late payment chargeonthe overdue amount at a rate equal to the lower of (a) one perceht (1 ) per month, or (b) the highest rate permitted by applicable law. 6. :Service -Specific Terms The following soctions apply to,speolf(c Lexlpol Services; 6.1 Po_ :1qX. Lextpol's policy Subscription Materials and Knowledge Management 'System COS") are proprietary, protected under U.S. copyright:., trademark, ,patent, and/or other applicable laws; and Lexipolreserves all rights not expressly granted in these Terms; Agency may prepare Derivative Works using Lexipol's Subscription Materials, but Lexipol shalt remain thesoleowner of all right, title and'lnterest in and to them, Including all W yrirdhts, intellectual property rights; rand other proprietary rights therein or pertaining thereto. Agency shall retain a perpetual, personal, non-subticensable and non -assignable right to use the Subscription Matelots for Agency's internal, purposes but will not remove any copyright notice or other proprietary notice of Lextpoi appearing thereon. Agency acknowledges and agrees that Lexlpol shall have no responsibility to updatesuctf Subscription Materials beyond the Term of the Agreementand shall have no liability whatsoever for ;Agency's creation or use of Derivative Works, Lexipol's Subscription MatoriaWare lobe treated as Confidential Information (per Section 9 herein), but Agency may disclose Subscription Materials pursuant to a valid court order, lawful government agency request, Freedom of Information Act (FOIA) request, or PubltoRecords Act!'(PRA) request. Agency acknowledges and'agrees that sit polio!" and procedures It Implements have been individually reviewed and adapted by Agency, that neither Lexlpol nor any of Reagents, employees or.representatives shall be considered "policy makers" In any legator other sense, and that Agency's highest-ranking official shall, for all purposes, be considered the "policy maker" with regard to same. Lexlpol's KMS Service is object to the Service Level Agreement attached to these Terme, 6.2 Learning, Lexipol's Learning Management System ("LMS"), offered by Praetorian Digital, Is a proprietary Service protected under,U,S,- copyright; trademark, patent, and other .laws- Lexlpol and its licensors retain all rights, title, and interest in and to the LMS (inalludtng, without firnitation, all intellectual property rights), including Alt copies, modifications, extensions, and Derivative Worsts thereof, Agency's right to use the LMS is limited to the rights expressly granted kthe Agreement. Agency Data, defined as data owner/ by Agency prior to the Effective Date or which, Agency provides during the Term for purposes of identifying authorized users, confirming agency or department information, or otherpurposesthat are onctllary to receipt of the Service, remains Agency's property. Lexlpol retains no right or interest in Agency Data and shall return or destroy Agency Data following termination of the Agreement. Lexipol's LMS Service is subject to the Service Level Agreement attached to these Terms: Copyright 0 LoApol,LLG 1995.2e22 Rev, 1.1,2022 DocuSign Envelope ID: 85058BOD-455A-4878-9E2A-5C96622A1E36 6.3 ft f ass, This Section applies when Agency subscribes to Lexipol's Wellness Application (°Wellness App") offered by Cordlco(&� All Subseripticrx Materials delivered by the Wellness App, including but notlimited to ail object and source code, all infomtatlan created, developed; or reduced to prootfed,-and all_writte i,, lrrlage-based, or video -based content underlying the Wellness App that is not specifically provided by Agency Is the proprietary intellectual property of Lexipol. and/or Its suppliers or licensors, protected to the maximum extent permitted by trademark, copyright,, and patent laws. Agency is granted?a nonexclusive limited right to access the WellnesoApp during the Term. If tho, Agreement is terminated or expires for any reason; Agency -shall lose >access to the Wellness App and to all associated Subscription Materials and shall discontinue all use of the same for any purpose. Nothing )n this section orthese Terms shall be comstrlled as conferring any right of ownership or use to -the Wellness App, whether by estoppel, Implication or otherwise, 3A Grants. - and/or GrantFindar sari This Section applies when ces, For Grant Writing ser aqufred by LexipoYagrant -v Int application close date)./ idlines, buLL.exip`olaballbe for submissions where applicable. Failure to submit r will result in rollover ofproject services and fees to Requestsfor canoollation €sf Grant Writing servl Involves for Grant Writing services will be sort Complete payment must ba received no later Agency has not made timely payment on an Jrrw to Agency -until past -due paymentsare received ifappiicable.'lnvpices`over thirty (30) days past selects LeApors Grant Writing, C6nieulting, fancy takes full rssponslbilify for submitting am in a timely mariner (at least tiva (S) days responsible, for•all submissfons of final grant red Agency's duly authorized representative l rristarlals to write grant applications on time it application cycle, not a refund of the fees, as will result In a 50% fee of the total value of the service, as soon as work begins for the applicable target grant: lan,lhirty (36} days after receipt of Invoice. In the event se, Lexipol reserves the dghtlo suspend all grant Services Y full, and mayterminate Agency's access to GrantFinder, us may beeharged a twenty-five dollar ($25) late fee.. U Generally, Injunctive Belief, Nothing to the Agreement shall be construed as costarring any rights orlioenseto I-exipol's trade secrets, intellectual property, Gonffdentiel Information, Subscription Materials, KM$, LMS, Wellness App, or the software underlytng such products and services, Whether by estoppel, Implication or otherwise. Agency may not, and may not assist others to, decompile, disassembter, reverse engineer, or otherwise attempt to discover any objeot code, source code, or proprietary data underlying the Services, Agency grants all rights and permissions:in or relating to Agency t7ata.as are necessary to Lexipol to enforce the Agreement, exercise Lexlpol's rights, and perfonreLex1pol's obligations hereunder. Agency acknowledges that a breach or threatened breach of any portion of this Section may cause Irreparable harm and shall entitle Lexipol to injunctive relief in addition to any other available remedy, T. Account Security. The rights to access and use the Services under the. Agreement are personal and unique to Agency -and Agency shall notassign orotherwise transferanysuch rights to any other person or entity. Except as set forth herein, Agency remains: solely responsible for maintaining the confidentiality of Agency's usernarri and password(s) and the security of Agency's account(s), meaning the account by which _Agency accesses the Services. Agency will not permit access to Agency's accounts) or use of Agency's usernarre(s) and/or password(s) by any person or entity other than authorized Agency persormeL Agency will Immediately notify Lexipol if Agency becomes aware that any person, or entity other than authorized Agency personnel has used Agency's Account or Agency's username(s) and/or password(s), 8Privacy Palls , Laxlpol will hold Agency Data in. confidence unless required to,provid- access In accordance with a court order, government agency,request, or other -legal process such as a Freedom of Information 'Act (FOIA) request; or Public Records Act .(PRA) request. Lexipot will use commercially reasonableefiforts to ensure the security of all Agency Data, Lexipol`s systems use the Secure Socket Layer (5SL) Protocol for Lexipot Services, which encrypts :Information as It travels between Laxipol and each Agency. However, Agency acknowledges and agrees that data transmission on the internal la not always '100% secure and Lexipol cannot and does not warrant that information Agency transmits to or through the Services Is 100%secure, Agency acknowledges that Lexipol may provide view -only access and summary information (which may Include numberofpolicies developed or in development, percentage of staff reviews of developed policies and IITHs) to Agency's affiliated Risk Management Authority, Insurance Pool or Group, or Sponsoring Association if they are actively funding member Agency Subscription Fees, Copyright © Lexipot. LLC ^1995.2022 Rev, 1.1s2022. DocuSign Envelope ID: 85055BOD-455A-48713-9E2A-5C96622A1E36 9. flmllgamtialit During the term of the Agreement, either party may be required to disclose information to the other party thatis marked "`confidential" orl4of such a type that the confidentiality thereof isreazdnablysoparent(pollOctivdly,"Qorifidentiellnformation');Thf§togolvlh party will; (a) limit disclosure of any Confidential Information of the other poky to the receiving party's directors, officers, employees, 'agents and other represontatives, (collectively "Representatives') who have a need to know such Confidential Information in connection with the Services; (4) Advise its personnel And agents of the confidential nature of the Confidential Information and of the obligations set forth In the Agreement; (o) keep off Confidential Information confidential by using areasonable dogree ofoarej but notless than the degree of care used by It in safequardirlg its own confidential -information; and (d) net disclose Any Confidential Information to any thlrd party unless ess expressly authorized by the disclosing party, Notwithstanding the foregoing, a party may disclose Confidential Information pursuant to a valid governmental, jUdiciali or administrative order, subpoeria, discovery request, regulatory request, Freedom of Information Act (FOIA) request, or Public RecordsAtl:(PIRA) request, or similormothod, provided that the party proposing to make any such disclosure will promptly natfly, to the extent practicable, the otherparly In writing ol'such demand for disclosure to that the other party may, atAssole expense, seek to make, suoh4isclosure subject ito a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information., Each party shall be responsible for Any breach of this section by any of such partft person or agents. 10. Varranty Disclairrier..ALL SERVICES AND SUBSCRIPTION MATERIALS ARE PROVIDED "As. IS" AND LEXIPOL DISCLAIMS ALL WARRANTIES, WHETHER WRESS, IMPLIED, STATUTORY', OR OTHERWISE, INCLUDINQr ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON4NFRIXOEMeNT, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 11. Lirtfigtipri, of Llakility. Lexipol's cumulative liability resultiogfrom any claims, demands, or actions arising out of or relating to the Agreement, the Services, or the use of any Subscripttoo Materials shallnot exceed the aggregate amount of subscription fees actually paid to LoXJpoI by Agency for the associated Services during the twelvemonth period immedlately.priortp the assertion of such clailm,,damand, or action. Irf no event shall Lexilpol be fiahle for any indirect, Incidental, consequential, special, exemplary damages, orlost profits, even if Lax1pol has been advised of the pQssibility-oftuch damages. The limitations setforth in this Section shall apply whether the subject claim is based an breach of contract, tort, strict liability, product liability or any other- theory or cause of adflom 11 General Terms. 12.1 General Interpretation, The language used In,the Agreement and these Terms, shall be deemed to express the, mutual intent of Lexical and Agency, The Agreement thall be 0onstriject without regard to any presumption or rule requiring construction against the party causing such Instrument or any portion thereof to be drafted, or In favor of the party receiving a particular 'benefit underthe Agreement. 12.2 Invalidity of Proyislons. Each of the provisions contained In the Agreement and these Terms Is distinct and severable, A declaration of Invalidity or urionforceability of any such provision or part thereof by a court of cornpotentlurisdiction shall not affect the validity or enforceability of any other provision hereof. Further, If a court of competent Jurisdiction finds any provision of the Agreement to be invalid or unenforceable, the parties agree -that the court should endeavor to give, effect to the parties' Intention as reflected in such provision to the maximum extent possible, 12.3 Waiver Lexipol's failure to exercise, or, delay In exorcising, any %right or remedy under any provision of the Agreement shall not constitute a waiver Of Such right.or remedy. 12.4 Governing La The.Agreemant shall be construed in accordance with, and governed by, the laws of the State, in which Agency Is located, without giving efflact to any choice of law doctrine that would cause the lawrof any OtherjUrisdiction to apply. Copyright 0 Loxlpol, LLC 199.5-2022 Rev. 1.1,2022 4 DocuSign Envelope ID: 85058BOD-455A-4878-9E2A-5C96622Al E36 12,5 Compliance with Laws, Each party shall maintain compliance with all appflcab}e laws, rules, regulations, Ono orders promulgated by any federal, state, or local government body or agency relating toits obligations pursuant to the Agreoment arid these Terms. 12A At�rnev's Fees. if any action is brogghtby elther party to the Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled :tea recover,.'In addition to any other relief granted, reasonable attorneys fees and expanses oftltlgatiom 12.7 Notices, Any notice required by the Agreement or gluon in connection with It shall be in writing "and shall be,made by certified mail (pcstsi propald), recognized overnight delivery service; or (If mutually agreed upon) by small to authorized reolpients at such address as each party may indlcate,froin time to time. Alternatively, electronic that( or facsimile" notica,to established and euthortzod recipients Is acceptable when eckribwledged by the receiving party, 122 Entire Agreement. The Agreement, Including these Terms, embodies the, entire agreemontsnd understanding"of the parties hereto and expressly supdrsedes all prior written ;and oral agreements and understandings with respect to the subject matter hereof, No ropresontation, prorriiss, or statement of intention has been made by any party hereto thatis not embodied in the Agreement. Terms and conditions set forth In any purchase order or any other form ar document that are inconsistentwithor In addition to the terms and conditions set forth In the Agreoment are hereby objooted to and rejected In theirendrety, regardless of when received, without further action or notification, and shall notbo considered binding unless specifically agreed to in writing by both parties, No amendment, modification, or supplement to the Agreement shall be binding unless It is-fn writing and signed by the party sought to be bound thereby, 12.9 Counferparts The Agreement may be executed in any number of counterparts, ouch of which shall be deemed an original but all of which togethershall constitute one and -the same documentfor purposes of the Agreement. Lexipol Service Level Agreement for CloW-Based Services 1. Response Times. for issues relating to LeMpol's online, cloud -based Services (e.g. KMS, LMS, Wellness), Lexipol will ,make an Industry standard and commercially reasonable effort to respond promptly (via - Lexipol's Normal Support Channels) within two (2) Business Clays after receipt. 2. Uotlme Commitment. The Uptime Percentage for theServicewill be ninety-nine and 'five•tenthspercent (the "Uptime Commitment").Subject to the. exclusions described in below, "Uptime Percentage" is calculated by subtracting from 1 OQ% the percentage of 1-minute periods during any annual billing cyclam which Agency's selected Service(&) are unavailable out of the total number of minutes In that billing cydie. '"Uriavalloble and "Unavailability" mean that, in any I. -minute period, all connection requests received by Agency failed to process (each :a. "Failed Connection"); provided, however, that no Faitod Connection will be counted as a part of more than sniasuch 1-minute period (i.e. a F"ailed'Connectlon will not be counted for the period 12t00M-12:00:59 end the period 12!QO:30-12:01.29)" The Yearly' Uptime Percentage will 6e measured based on the industrystandard monitoring tools, 3. Exclusisns from tlptlme Percentage. All Service Unavailability .resulting from the 'following wiif be axclu e from calculation of Uptime Percentaga; (a) Regularly -scheduled maintanance-of the Service that does not exceed six (5) hours per 3-month period and Is communicated by Lexipol at least twenty-four (24) Flours in advance via Lexipol's support channels (Lex(pol typically schedules such regularly scheduled maintenance once per month); (p) Any€allures of the Le. xipal Standard and Custom Reporting Services that does not exceed six (6) hours per3-month period and fs communicated by Lexipol at least twenty-four (24) hours in advance via'Lekipol's Normal Support Channels; (a) Any issues with a third -party service to which Ardency subscribes but does not control, (d) Any problems not caused by Lexipol that resultfrom, computing or networking hardware, other equipment or software under Agency's control, the Internet, or other Issues with electronic communications; (0) Lexipors suspension or termination of the Service in accordance with thoTermsi(f) Exceeding Loxipot"s published ConcurrentRequest l emits; (g) Software that has been subject to unauthorized modification byAgency; ,(h)Negligent or intentional misuse of the Service by Agency. CopyrighM Lexipol, LLG 1905 2M ;Rev, 1,1�.2022 DocuSign Envelope ID: 85058BOD-455A-4878-9E2A-5C96622A1E36 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney n Byja L — ----- TAMARA BOGOSIAN Senior Assistant City Attorney CITY OF SANTA ANA KRISTINE RIDGE City Manager RECOMMENDED FOR APPROVAL: ff VALENTIN of Police