HomeMy WebLinkAboutMILLER MENDEL, INC. 3 - 2020N-2020-104
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t—I a- �p MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
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Z ZI LL U This Master Software License and Services Agreement (this "Agreement") is made and entered into on
Z¢ the last date signed below ("Effective Date") between Miller Mendel, Inc., a Washington corporation with an
g Cr �Iddress at 1425 Broadway, #430, Seattle, WA 98122 ("MMI"), and the City of Santa Ana, by and through the
°C Y WI Aanta Ana Police Department, with an address at 60 Civic Center Plaza, Santa Ana, CA 92701 ("Client"). MMI
zO v and Client may each be referred to individually as a "Party" or collectively as the "Parties."
BACKGROUND
c
A. MMI is a technology company with a principal market in offering software -as -a -service solutions
to governmental and private entities;
cD B. Client desires to license and use MMrs software system known as the "eSOPH" or "electronic
CD Statement Of Personal History." The eSOPH System (defined below) is a web -based software system designed
and developed to assist with pre -employment background investigations. The eSOPH System allows Client to
manage pre -employment background investigations of persons who apply for employment with Client.
C. MMI is willing to allow Client and its Applicants to use the eSOPH System in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the
Parties, each intending to be legally bound hereby, do promise and agree as follows:
AGREEMENT
1. DEFINITIONS. Except for the terms defined below, all initially capitalized terms used in this Agreement
will have the meanings described within the text of this Agreement. As used herein, the following terms have the
following defined meanings:
1.1 "Applicant' means a registered end -user that accesses the eSOPH System at the request of a Client
to input or upload data or documents for the purpose of Client's management of one or more pre -employment
background investigations.
1.3 "Applicant Data" means any data transmitted by Applicant to the eSOPH System.
1.4 "Authorized User" means any user, excluding Applicant(s), who accesses the eSOPH System on
behalf of Client. For Clients within California and participating in the California Commission on Police Officer
Standards and Training ("POST"), "Authorized User(s)" also includes Authorized Users from POST.
1.5 "Available" means that the eSOPH System is: (a) available and accessible for use via the web -based
interface provided by MMI, provided that Client has an operational Internet connection and all compatible hardware
and software, including web browsers, required to access and use the eSOPH System; and (b) functioning in
substantial compliance with the Master Agreement and the Documentation.
1.6 "Availability" shall have the meaning described in Section 2.14 (Availability Standards).
1.7 "Client' means the entity stated in the first paragraph at the top of this page, licensed to use the
eSOPH System in accordance with the terms and conditions of this Agreement.
1.8 "Client Data" means all data and other information uploaded or transmitted to or keyed into the
eSOPH System by Client or an Applicant.
1.9 "Client Specific Terms" means the terms and conditions specific to Client included in a Quote.
1.10 "Defecf'means a failure of eSOPH System to substantially conform to the functional specifications
set forth in the Master Agreement or the Documentation.
1.11 [Deleted].
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 1 OF 21
Version: June 1, 2019—Santa Ana Specific (See Addendum)
MILLER MENDEL, INC.
1.12 "Documentation" means any training materials, product descriptions, technical descriptions, flow
charts, or other written or other tangible documentation provided or made available to Client by MMI that describes
or depicts the functionality of the eSOPH System.
1.13 "Entry" has the meaning ascribed to it in Section 2.3.2.
1.14 "eSOPH System " means MMI's "electronic Statement Of Personal History" web -based software
system designed and developed to assist with pre -employment background investigations, and all related Software.
The eSOPH System allows MMI's clients to manage pre -employment background investigations of persons who
apply for employment and volunteer positions with Client.
1.15 "Intellectual Property Rights" means all intellectual property rights throughout the world, whether
existing under intellectual property, unfair competition or trade secret laws, or under statute or at common law or
equity, including but not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents, inventions,
designs, logos and trade dress, "moral rights," mask works, rights of personality, publicity or privacy, and any other
intellectual property and proprietary rights; and (ii) any registration, application or right to apply for any of the rights
referred to in this clause; and (iii) any and all renewals, extensions and restorations thereof, now or hereafter in force
and effect.
1.16 "License Term" shall have the meaning given in Section 4.1 (Term).
1.17 "License Year" shall mean the twelve (12) month period following the Effective Date and the
twelve (12) month period following each anniversary of the Effective Date.
1.18 "Administrative User" means an Authorized User of Client's choosing listed on the Exhibit A who
is authorized to grant initial eSOPH System login and password credentials to another Authorized User to access
and use the eSOPH System and either (a) has completed an initial training session provided by MMI on or around
the Setup Date or (b) is a successor designated by Client and qualifies in accordance with Section 2.6 (Administrative
Users).
1.19 "Quote" means the written quotation delivered by MMI to Client, prior to entering this Agreement,
for all License Fees, Setup Fees and Support Services and other costs and fees agreed by the Parties, applicable
during the License Term. Each Quote agreed to by the Parties is hereby incorporated into this Agreement, and the
terms of the current Quote are hereby made material terms of this Agreement which shall supersede any conflicting
prior terms.
1.20 "Renewal Term" shall have the meaning given in Section 4.2 (Renewal). "License Term" may be
used interchangeably with "Renewal Term", and the terms shall be interpreted to have the same effect and
application, unless expressly stated otherwise.
1.21 "Security Incident' means an unauthorized third party gaining access to Client Data in MMI's
storage, possession, or care if it was accessed in unencrypted readable form and either (a) it creates a substantial risk
of harm to Client or any individual(s) or (b) applicable law requires notification to individuals' whose personal
information was accessed.
1.22 "Services" means, collectively, the provision of the eSOPH System in accordance with the Section
2.9 (Support Services), related professional services, and any other services to be provided by MMI to Client
pursuant to this Agreement.
1.23 "Service Credit' means a credit or refund issued pursuant to Section 2.14.2 (Uptime Guarantee;
Remedies for Excessive Downtime) for failure to meet the Availability standards set forth in Section 2.14
(Availability Standards).
1.24 "Setup Date" means the day of activation and setup of Client's access to the eSOPH System, which
will occur on the first day of training unless otherwise specified and agreed to in writing by the Parties.
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 2 OF 21
Version: Jane 1, 2019 — Santa Ana Specific (See Addendum)
MILLER MENDEL, INC.
1.25 "Software" means the eSOPH System, related proprietary software owned by MMI, and any third -
party software required to operate the eSOPH System, all in machine readable, object code form, together with all
enhancements, modifications, corrections and amendments thereto.
1.26 "Software Fees" means fees paid for Entries, licensing fees for access to the eSOPH System, and
any fees paid for maintenance and support allocable to a given calendar month. Such fees that are paid on an annual
basis shall be pro -rated (e.g., fees paid for a License Term shall be divided by 12 to determine the monthly amount)
Software Fees allocable to a given month. Software Fees excludes fees paid for professional services (e.g., training,
customization, set-up, or installation) and fees paid for corrective work outside the scope of the Support Services
described in Section 2.9 (Support Services).
1.27 "Support Request" means a written request for resolution of a Defect submitted by Client to MMI.
1.28 "Support Services" means the support and maintenance services described in Section 2.9 (Support
Services).
1.29 "Total Authorized Cost' shall have the meaning given in Section 3.6 (Total Contract Cost
Authorized).
2. eSOPH SYSTEM LICENSE AND SUPPORT SERVICES
2.1 License Grant. MMI hereby grants to Client a revocable, limited license to access and use the
eSOPH System commencing on the Setup Date and for the remainder of the License Tenn in accordance with the
terms and conditions of this Agreement. MMI will provide the eSOPH System to Client in accordance with the
Quote for the then -current License Term and terms of this Agreement (or any applicable successor Agreement).
2.2 Authorized User Designation. Client shall designate all current Administrative Users of the
eSOPH System in accordance with Section 2.6 (Administrative Users). A current Administrative User may grant
System access to additional Authorized Users. Client shall ensure its Authorized Users' compliance with the terms
of this Agreement, and Client assumes and accepts all responsibility and all liability for each of Client's Authorized
Users, and any user whom the Client, or Client's Authorized Users, grants eSOPH System access, including all their
acts or omissions while accessing and using the eSOPH System and/or any information obtained through such access
and use.
2.2.1 Outside Agency Access. THIS TERM APPLIES ONLY IF CLIENT IS WITHIN THE
STATE OF CALIFORNIA: At Client's written request, MMI may grant system access for designated external
auditor(s) or reviewing entities ("Outside Agency"). These users are considered Authorized Users as defined in
Section 1.4. The access will allow the Outside Agency to access certain eSOPH Client Data within the specific
Client's eSOPH system. Such requests are subject to MMI's approval of the Outside Agency. MMI reserves the
right to decline such requests at its sole discretion. Client shall be solely responsible for ensuring compliance with
all applicable legal requirements for the Outside Agency's access, to include necessary authorizations and waivers.
Granting Outside Agency access to Client's eSOPH system may be subject to additional fees, as reflected in a
Quote provided to and accepted by Client. If a fee applies, the new Authorized User(s) from the Outside Agency
will be added into the eSOPH System per Client's request after a purchase order is received by MMI reflecting
acceptance of the applicable fees. After MMI has added the Outside Agency Authorized User's access to the
eSOPH System for Client's account, the new Authorized User will have access to view Client's Data on designated
Applicants. Client may revoke an Outside Agency's or specific Outside Agency Authorized User's access by
submitting a written request to MMI.
2.2.2 Outside Agency Access: Limitation of Liability. THIS TERM APPLIES ONLY IF
CLIENT IS WITHIN THE STATE OF CALIFORNIA: For any Outside Agency granted access pursuant to
Client's written request, Client shall be solely responsible for all acts, errors, omissions and/or any damage or
harm arising from or related to the Outside Agency's access to the eSOPH system, and MMI shall have no liability
to Client relating to such access, including but not limited to any delay in MMI terminating such access after
receiving Client's request to terminate the Outside Agency's access.
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 3 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)
2.3 Set -Up and Use of the eSOPH System.
2.3.1 Upon execution of this Agreement by both parties and MMI's receipt of a purchase order
issued by Client in accordance with Section 3 (Fees and Payments), MMI will commence work with Client to
establish Client's account on the eSOPH System and provide in -person setup and training for Client's access and
use of the eSOPH System.
2.3.2 For each Applicant, an Authorized User (with appropriate permission levels set in the
eSOPH System), must create an entry method into the eSOPH System for the Applicant. One method is by entering
the Applicant's legal name and other identifying information into the eSOPH System. This is considered an
"Entry." An Authorized User, may then grant access to the eSOPH System to the Applicant, who may use it to
submit information to assist Client in executing its background investigation of such Applicant. The second entry
method is for an Authorized User to create an access code within the eSOPH System. The access code, if given
out to Applicants, will allow those Applicants with the access code to access the system with no further data entry
by any Authorized User. The Applicant(s) then has/have access to the eSOPH System to submit information to
assist Client in executing its background 'investigation of such Applicant(s). Each Applicant who accesses the
system via the access code option will also be considered an "Entry". Any Authorized Users may access and use
the eSOPH System for the purpose of adding information, and accessing and reviewing information submitted by
Applicant(s). Any Authorized User, including Applicants, must be capable of entering into legally binding
agreements.
2.3.3 If Client desires to have Users under the age of 18 access and use the eSOPH System,
Client will, at Client's sole expense and risk, provide a legally sufficient release agreement to be executed by the
minor's legal guardian(s), prior to the minor's access to the eSOPH System. The release must include language
legally sufficient to hold MMI harmless and release MMI of all liability. Client agrees it is solely responsible, and
will retain all executed release agreements, and will provide MMI a fully legible copy of the requested release
agreement(s), if so requested by MMI, within five calendar days of MMI's request. Client is solely responsible
for researching and complying with all laws regarding a minor's access to and use of the eSOPH System. Client
agrees to defend, indemnify and hold MMI harmless from all claims and damages relating to a minor's use of the
eSOPH system.
2.4 Restrictions on Use.
2.4.1 Except as expressly permitted below, Client (including its Authorized Users) is strictly
forbidden from entering at any time fictitious data (e.g., names, social security numbers, addresses, phone numbers
or other data) into the eSOPH System for "testing," "training," or any other purpose. MMI reserves the right to
invoice Client at MMI's then -standard hourly rate, for the removal of any fictitious data entered by any Authorized
User. MMI will provide to Client a "fake" applicant name and the other information necessary to conduct training
and testing with its Authorized Users, at Client's request. MMI will remove the "fake" applicant from the eSOPH
System, after requested by Client, at completion of Client's testing or training.
2.4.2 Client may use the eSOPH System only to aid in pre -employment background
investigations for those Applicants who have applied for employment or a volunteer position within the Client's
specific government agency (e.g., state government, township, county, city, and village). Client may not use the
eSOPH System on behalf of other government agencies or entities. MMI reserves the right to invoice Client all
fees equivalent to if the other entity were a direct Client of MMI. Client agrees to pay the fees in accordance with
Section 3 (Fees and Payments).
2.5 Acknowledgment of Ownership and Limited License Rights. As between MMI and Client,
MMI is the sole and exclusive owner of the eSOPH System (including all updates), Documentation, and all
Intellectual Property Rights associated therewith. The eSOPH System is licensed not sold, to Client. Client shall
have only the rights specifically granted by MMI under this Agreement. No additional rights are granted or may be
inferred. Client shall not: (i) make any modifications to any portion of the eSOPH System to which it is not intended
to have access, via the user interface; (ii) attempt to reverse engineer, disassemble, reverse translate, decompile,
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 4 OF 21
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MILLER MENDEL. INC.
decode or copy any portion of the eSOPH System; (iii) remove any patent, trademark, service mark or copyright
notices which MMI places on the eSOPH System; or (iv) take any other actions inconsistent with the limited rights
granted by this Agreement.
2.5.1 Client shall immediately notify MMI of any activity to which it becomes aware which
may constitute infringement or attempted infringement of MMI's rights in and to the eSOPH System, including
violations of intellectual property law(s). Client shall provide MMI with all reasonable assistance necessary or
desirable for MMI to protect any of its rights, including without limitation its Intellectual Property Rights, in
connection with the eSOPH System and agrees, upon written request from MMI, to furnish any and all records
and information regarding the party suspected of infringement.
2.6 Administrative Users. Client shall designate one person as their Primary Administrative User on
Exhibit A, which is hereby incorporated into this Agreement. Client may designate additional Administrative Users
authorized to contact MMI for Support Requests pursuant to Sections 2.9 (Support Services) and 2.10 (Support
Request Requirements). As described within this Agreement, the person(s) listed in the Exhibit A are the only
representatives of Client authorized to contact and submit support requests to MMI, and they are responsible for
troubleshooting all Authorized User and Applicant issues prior to submitting support requests to MMI. Client is
responsible for maintaining a current list of the Administrative User(s) with MMI, and must notify MMI within 48
hours of any change in an Administrative User by providing MMI an updated Exhibit A listing all of Client's
Administrative Users. Client shall be responsible for training replacements for any of Client's Administrative Users.
If Client requests MMI provide replacement training, such training shall be provided at MMI's then -standard rates
for training. Client shall pay MMI's then standard hourly rate for support and assistance provided to Administrative
Users necessitated from Client's failure to designate a property trained person as an Administrative User.
2.7 System Updates. The eSOPH System may be updated on an as -needed basis by MMI or MMI
contracted service providers. Client may need to update its Internet browsers, connections, Internet service, and
some hardware from time to time to permit ongoing compatibility with the eSOPH System.
2.8 Sample Forms. The scope, content, format and other details of information and materials requested
from Applicants through eSOPH as well as the forms and fields used to collect such information are within the
exclusive control of Client and its Authorized Users. Any default or sample forms or fields provided or pre -loaded
on the eSOPH System ("Sample Forms") are provided by MMI "as is" with no warranty of any kind, express or
implied. If Client uses such Sample Forms, Client does so at Client's own risk, and Client is solely responsible for
evaluating such Sample Forms' suitability for Client's purposes and making any necessary or appropriate changes,
including without limitation changes required for compliance with laws and regulations that apply to Client.
2.9 Support Services. MMI shall provide the following services (the "Support Services") with respect
to the eSOPH System:
2.9.1 MMI will use its commercially reasonable efforts to: (i) maintain the eSOPH System so
that it operates without Defects; (ii) host and make the eSOPH System Available at all times excluding Scheduled
Downtime; and (iii) cure or minimize the adverse impact of any Defect as soon as is reasonably practicable after
such Defect is reported in accordance with this Section 2.9 (Support Services).
2.9.2 Subject to Client's maintaining suitable environments and systems that are compatible,
MMI shall provide, install, and implement, as they become available, any bug fixes of the eSOPH System that are
provided by MMI free of additional charge to all licensees of the eSOPH System.
2.9.3 Excluded Services. The Support Services do not include any of the following: (a)
configuration of other applications required to access eSOPH System, including, but not limited to Client's
interact service, operating systems, faewalls, or networking components; (b) Client's ongoing training needs; (c)
any version upgrades of Client's 3rd party software used in connection with the eSOPH System; (d) enhancements,
modifications, or customization to the eSOPH System performed at the Client's request and not intended to resolve
a Defect; (e) any version or release of the eSOPH System that MMI may issue as a separate edition, including an
MASTER SOFrwARE LICENSE & SERVICES AGREEMENT PAGE 5 OF 21
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MILLER
alternative or premium version of eSOPH System for which additional fees may be required to access; or (f)
resolution of Defects caused by any of the events described in Section 2.13 (Exclusions), below.
2.9.4 MMI Support Hours. MMI will provide email support between the hours of 09:00 and
17:00 Pacific Time, Monday through Friday, excluding holidays.
2.10 Support Request Requirements. Client must comply with all of the following requirements as a
condition to receiving Sport Services:
2.10.1 Attempted Resolution by Administrative User(s). Client's Administrative User(s) shall
act as the first line of support to troubleshoot any Defects experienced by Applicants and Authorized Users. Only
when an Administrative User cannot resolve the Defect should a Support Request be submitted to MMI. If a
Defect is reported to MMI that an Administrative User, based on the initial training provided by MMI concurrent
with setup of Client's account to access the eSOPH Platform, should have been able to resolve without MMI's
assistance, MMI may refer such Defect back to Client's Administrate User(s) for resolution.
2.10.2 Submission by Administrative User(s). All Support Requests must be submitted by and
through one of the Administrative Users on Client's most current Designation Form (Exhibit A). MMI is not
required to respond to or resolve any Support Request that is submitted by a person other than a current
Administrative User.
2.10.3 Information Required in Support Request. Each Support Request must include the
following information, at a minimum ("Minimum Required Information"):
(a) Client's reasonable, good faith classification of the priority (High, Medium, or
Low) of the reported Defect in accordance with the priority levels and definitions contained in Section 2.12
(Resolution Targets and Priority Levels), below, with explanation;
notation of their title;
(b) Names of Applicants, References and Authorized Users involved with clear
(c) Date and time of each occurrence;
(d) Computer operating system used by party experiencing the defect;
(e) Name of internet browser and version;
(f) Specific steps to allow MMI personnel to recreate the issue;
(g) Exact wording of any error message received, URL or name of page it was
received on, or a screen shot of the error;
(h) A description of all steps previously completed to resolve the defect; and
(i) If MMI has permission to contact the party directly, if needed. Include contact
information.
2.10.4 Additional Information. In addition to the Minimum Required Information listed above,
Client shall promptly provide MMI with such other information, files, and records related to the Defect that MMI
reasonably requests.
2.10.5 Access to Systems. Subject to Client's applicable security requirements, Client shall
provide MMI with access to and use of all systems and environments determined necessary by MMI to provide
timely Support Services pursuant to these terms. If Client is unable to provide access, the Parties agree MMI may
decline to fix the defect if a reasonable alternative is not available to MMI.
2.11 Response Times. MMI shall provide an initial response acknowledging each complete and validly
submitted Support Request no later than I business day after it is received.
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MILLER MENDEL, INC.
2.12 Resolution Targets and Priority Levels. MMI will prioritize resolution of Defects according to
their severity, and not necessarily based on the order in which they were reported. Defects reported in Support
Requests shall be classified using the priority levels and definitions set forth in the Table 2.12 (Priority Levels),
below. Although Client is required to propose a priority level in its Support Request, MMI may reclassify the
priority level of a Defect in its sole reasonable discretion, and such determination by MMI shall be final and
controlling. MMI shall use its best commercially reasonable efforts to cure Defects within the target resolution
times set forth in Table 2.12 (Priority Levels), which periods of time shall commence when a Support Request
containing all Minimum Required Information is submitted. MMI shall have no obligation to respond to or resolve
a Support Request (other than notifying Client that the Support Request is incomplete) unless and until all Minimum
Required Information is provided. "Priority Levels" are defined in the following Table 2.12 (Priority Level
TABLE 2.12
PRIORITY LEVELS
Priority
Description
Target Resolution Time
High:
A Defect is High priority if it (a) prohibits utilization of
24 hours
Complete
some or all functionality of the eSOPH System by all or
outage or
most Authorized Users or Applicants; (b) has a serious
severe impact
potential impact to Client's business (e.g., an impacted
to Client's
business function is halted completely); and (b) no
business
reasonably effective workaround is available.
function
Medium:
A Defect is Medium priority if it has a moderate impact on
3 Business Days
Partial outage
Client's business or it has a potentially serious impact but
or a
a reasonably effective workaround is available. For
workaround
example, a Defect would have Medium priority if it only a
available
small group of Authorize Users or Applicants are affected,
or an impacted business function is not halted completely
but is merely inconvenienced, or the issue can otherwise
be circumvented by a reasonably effective and available
workaround (e.g., use of a different web browser), other
work functions can be completed in the meantime.
Low: Cosmetic
A Defect is Low priority it is merely cosmetic or has a
10 Business Days
Issue, cosmetic
negligible impact to Client's business functions, or other
defect
work functions can be completed in the meantime.
2.13 Exclusions. MMI shall not be responsible for resolving and expressly disclaims liability and
responsibility for lack of Availability or Defects to the extent caused by any of the following:
2.13.1 Client's negligence, abuse, misapplication, misconfiguration, or misuse of eSOPH
System, including use of the eSOPH System in violation of the Master Agreement or any written instructions
provided by MMI to Client from time to time;
2.13.2 Use of eSOPH System with any hardware, operating system version or network
environment that is not supported by MMI, or other problems resulting from defects in Client's or a third party's
software or hardware; or
2.13.3 Problems with Client and/or its Authorized Users' telecommunications systems, Client
and/or its Authorized Users' internet service provider, or the public internet to the extent affecting internet
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INC.
performance on a general basis (e.g., such as a regional outage), natural disasters, denial of service attacks, acts
of terrorism, labor strikes, any other force majeure event, or any other event reasonably beyond MMI's control.
2.14 Availability Standards
2.14.1 Scheduled Downtime. MMI shall strive to avoid and minimize disruptions to the
availability and functioning of the eSOPH System. The eSOPH System may be unavailable for scheduled backup
and system maintenance ("Scheduled Downtime") during off-peak hours between the hours of 22:00 and 03:00
am PST (the "Maintenance Window"). On a limited and discretionary basis, MMI may adjust the Maintenance
Window to occur between the hours of 19:00 and 03:00 am Pacific Time by providing Client with at least 24
hours' notice posted on the lag -in screen of the eSOPH System. MMI shall use its best commercially reasonable
efforts to schedule all planned downtime during such Maintenance Window. If emergency maintenance must be
performed on the eSOPH System which, in MMI's sole discretion, cannot wait until the normal Maintenance
Window, MMI will promptly notify Client of such lack of Availability (in advance, if possible) and undertake
reasonable commercial efforts to minimize the impact and duration of any such maintenance activity. Any such
downtime for maintenance occurring outside the Maintenance Window shall not be deemed Scheduled Downtime
for purposes of calculating the Availability percentage described in Section 2.14.3, below.
2.14.2 Uptime Guarantee; Remedies for Excessive Downtime. MMI shall provide Availability
of the eSOPH System at least 99% of the time, excluding Scheduled Downtime and lack of Availability caused
by the events described in Sections 2.13 and 2.14.3. In the event the Availability of the eSOPH System falls
below 99% in any calendar month, MMI will issue to Client a service credit ("Service Credit") in the form of
additional Entries equal to the percentage of Entries purchased by Client for the calendar month (Entries per
current License Term divided by the total months in the respective License Term) set forth in the table below
corresponding to the actual Availability of the Software. To receive Service Credits, Client must submit a written
request to MMI within fifteen (15) days after the end of the calendar month in which the eSOPH System failed to
achieve 99% Availability, or Client's right to receive Service Credits with respect to such unavailability will be
waived by Client. The remedies stated in this Section are Client's sole and exclusive remedies and MMI' sole
and exclusive obligations for service interruption or lack of Availability.
2.14.3 Availability is measured by the following formula: x-- (n - y) * 100 / n
where: "x" is the Availability percentage; "n" is the total number of hours in the given calendar
month minus Scheduled Downtime; and "y" is the total number of downtime hours exclusive of Scheduled
Downtime and downtime caused by the events set forth in Section 2.13 (Exclusions) in the given calendar month.
TABLE 2.14
DOWNTIME FEE CREDIT
Availability
Percentage of Monthly Software Fees Credited
> 99.0%
0%
95.0%-<99%
3%
90.0% - < 95.0%
5%
80.0% - < 90.0%
10%
3. FEES AND PAYMENT
3.1 License, Setup and Support Fees. Client will pay to MMI the amounts for the applicable License
Term or Renewal Term in accordance with this Section 3 (Fees and Payments) for the duration of the applicable
License Term or Renewal Term. All payments made to MMI by Client will be in USD.
3.1.1 Client Set-up. Upon receipt of this fully executed Agreement and Client's purchase
order, MMI will begin the set-up process of Client on the eSOPH System in accordance with the terms of the
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INC.
Agreement. If Client requests the setup date and time be changed from what was originally stated by Client, Client
is responsible for reimbursing MMI for all costs MMI incurs in making the travel arrangement adjustments.
Additionally, Client will also be responsible for paying a $200.00 travel arrangement change fee to MMI. MMI
will provide records showing the costs MMI incurred.
3.1.2 License and Support. Client shall be invoiced annually for Support Fees as set forth in
Table 3.2 (License Term Fees and Credits).
3.1.3 Additional Training. After the initial training (up to two days/16 hours) has been
completed, additional training requested by Client will be billed to Client at a rate of $200.00 USD per hour.
Additional onsite training will be billed at a minimum of 8 hours, plus travel, meal and lodging expense
accommodations which are reasonable under government agency standards and practices. Requests must be
received by MMI in writing from an Administrative User listed on Exhibit A, or higher authority. MMI reserves
the right to charge $200.00 USD per hour for all off-site/remote training, with a one -hour minimum.
3.1.4 Corrective Services. MMI reserves the right to Invoice Client $200.00 USD per hour for
any corrective services Client requests. Corrective Services are typically services needed by Client from MMI to
correct a mistake made by Client's Authorized Users, which cannot be corrected by Client through the User
Interface. Requests must be received by MMI in writing from an Administrative User listed on the Exhibit A, or
higher authority. A one -hour minimum will be charged for Corrective Services performed by MMI, which do not
require travel. Corrective Services which requires MMI to travel will be billed at $200.00 USD per hour, with an
eight (8) hour minimum charge, plus all costs and expenses.
3.1.5 Entries.
(a) Client will be invoiced for Entries, as listed in Table 3.2 (License Term Fees and
Credits) immediately following MMI adding the Entries to the Client's account. Client may purchase additional
Entries one time at the then -current rate during the active License Term without incurring an administrative fee.
Entries added thereafter during a given License Term will automatically incur an additional twenty percent (20%)
administrative fee in addition to the per -Entry fee. If the purchase is for 300 or more Entries, the administrative
fee will be waived.
(b) Client may carry over Entries from a prior License Year which were paid for but
not used to the following License Year, but only when eligible. To be eligible, MMI must receive full payment of
any outstanding balances and a written request for the used Entries to carry over the new License Year. The written
request must be received by MMI at least five (5) business days prior to the current License Year's expiration.
(c) Fixed -Price Entries. Client may elect to purchase an agreed number of Entries
at an agreed fixed price for future License Years as listed in Table 3.2 (License Term Fees and Credits), below, in
which case Client shall be obligated to pay the annual invoices for the agreed number of Entries (listed in Table
3.2) as they come due each License Year, for the duration of the License Term or any Renewal Term, as applicable.
(d) Non -Fixed -Price Entries. If Client does not elect to purchase an agreed number
of Entries for future License Years, then pricing of Entries will be subj ect to MMI's then -standard rate for Entries.
3.1.6 Data Storage Overage. Data storage used in in excess of the "Storage Credit" listed in
Table 3.2 (License Term Fees and Credits), or in an accepted Quote, will be invoiced at the price listed on the
most current Quote Client has accepted for the applicable License Year. Invoicing intervals for Data Storage fees
will be set at the discretion of MMI, but not more often than every three (3) months. Data storage is calculated by
the space used by Client on the main production system(s) only; space used for backups is not invoiced. Due to
time zone differences, data usage calculations may vary by up to three hours. Client may not carry over credit for
Data Storage not used during a License Year. Archive data storage used by Client (subject to availably) will be
invoiced at the price listed on the most current Quote Client has accepted.
3.1.7 Feefor Administrative User(s). The fee paid for Support Services defined in Sections 2.9
through 2.14 shall obligate MMI only to provide support as defined to the Administrative User(s) in the current
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Exhibit A form and paid for by the Client. Fees for Support Services will be listed in a Quote accompanying a
Quote for Entries for the License Year.
3.1.8 Fee for Fax Service. A fee for the optional fax service shall be listed on a Quote
provided to Client, when the fax service module has been requested by Client. Fax service shall not be enabled on
Client's account unless Client accepts the Quote through issuance of a purchase order received by MMI.
3.2 Invoices; Payment. Invoices shall be issued in accordance with the payment terms set forth in this
Agreement. All pre -approved expenses and other charges, if applicable, will be listed on the invoice as a separate
item. The Parties agree the terms and conditions of this Agreement will supersede any conflicting or additional terms
set forth in any purchase order documents. Unless otherwise provided in this Agreement, Client will pay the
undisputed amounts of any invoices within thirty (30) days of the invoice date.
3.2.1 MMI shall provide a Quote for the next License Year prior to the expiration of the current
License Year, based upon Client's requested level of Support Services, Entries and Data Storage Credit. If Client
has not agreed to purchase Entries and Services at a fixed price for the next License Year, then the Quote will
reflect the current License Year levels unless otherwise directed by Client. MMI must receive a purchase order
for the Quote for the next License Year prior to the last day of the current License Year.
TABLE 3.2
LICENSE TERM FEES AND CREDITS
(Used for Multiyear Agreements only. See Quote for Single License Year Agreements.)
License Year
Fee for Entries
Fee for Support
Data Storage Credit (GB)
June 21, 2020—June 20, 2021
$7,401.00 for 150 Entries
$1,110.15
2.25 GB
June 21, 2021 — June 20, 2022
$5,180.70 for 100 Entries
$777.11
1.5 GB
June 21, 2022 — June 20, 2023
$10,879.47 for 200 Entries
$1,631.92
3 GB
3.3 Disputes. Client will notify MMI of any disputed charges, in writing, within 15 days from the date
of invoice. Any dispute must be reasonable given the terms of this Agreement. The written dispute will include the
bases of the dispute and cite all term(s) of the Agreement that validate Client's bases for dispute. MMI and Client
will attempt in good faith to resolve any dispute. If the Parties resolve the dispute, MMI will re -invoice for the
agreed amount and payment will be due upon receipt of the invoice. If the Parties fail to resolve the dispute within
thirty (30) days after the notice by Client, then MMI will consider all disputed amounts as immediately due and
payable, and failure of Client to make payment shall be considered a "Failure to Pay" pursuant to Sections 3.4 and
3.5, below.
3.4 Taxes and exemptions. Client shall also pay or arrange exemption from any taxes, charges, or
other fees imposed on its use of the eSOPH System (other than taxes on MMI's income), including any applicable
sales and/or use tax. If Client is a government agency and represents it is exempt from state or local sales or use tax,
and it's later determined Client is not exempt from such tax, Client is responsible for paying or reimbursing MMI
for all outstanding sales or use tax, including any penalties and interest.
3.5 Failure to Pay. If Client fails to pay any undisputed sums when due, MMI may, in its sole
discretion, place Client's account in a Restricted Mode as follows: (a) if any undisputed amount on an invoice
remains unpaid sixty (60) days after the date of the original invoice, MMI suspend Client's ability to create new
Entries (Client would still be able to access existing Entries/Applicants); (b) if any undisputed amount on an invoice
remains unpaid ninety (90) days after the date of the original invoice, MMI may suspend or terminate any and all of
Client's access to the eSOPH System, including access by its Authorized Users and Applicants, in whole or in part,
and cease to perform any and all of its obligations under this Agreement. These actions shall be in addition to, and
not in lieu of, any other rights or remedies MMI may have at law or equity and are not a waiver of any such remedies.
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3.6 Total Contract Cost Authorized. The total cost of this Agreement, including all payments from
Client to MMI during the Term, excluding any subsequent Renewal, will not exceed $29,678.35 ("Total Authorized
Cost"). In the event services (e.g. Data Storage or Support Service fees) requested or incurred by Client will result
in costs greater than the Total Authorized Cost, then MMI shall notify Client as soon as MMI becomes aware. Client
is responsible for adjusting its Total Contract Cost Authorized to cover any extra Data Storage or Support Services
fees. MMI is not obligated under this Agreement to provide extra Data Storage or Support Services that would cause
Client to exceed the Total Contract Cost Authorized, and Client shall remain obligated to pay excess costs for
additional Data Storage and/or Support Services requested by Client's Administrative User(s).
4. TERM, RENEWAL AND TERMINATION
4.1 Term. The term of this Agreement will commence as of the Effective Date and will continue
through 12-monhts (a "License Term"), and as renewed pursuant to Section 4.2 (Renewal), unless terminated by
one or both Parties in accordance with this Agreement, or terminated automatically by the terms of this Agreement.
If no fixed License Term is provided, then the License Term and Renewal Terms shall be on a year-to-year basis,
coextensive with the License Year.
4.2 Renewal. Except as written in Section 4.3, this Agreement shall automatically renew upon MMI's
receipt of Client's purchase order for the next License Year. The purchase order must be based on a valid, non -
expired Quote from MMI, and received by MMI prior to the last day of the License Year.
4.2.1 For fixed multi -year License Terms, in the absence of a newly -executed multi -year
agreement then receipt of a purchase order from Client for the next License Year, received by MMI prior to the
end of the final License Year of the current multi -year License Term, shall automatically renew this Agreement
on a year-to-year basis upon the same terms of this Agreement and the Quote upon which Client's purchase order
is based.
4.2.2 For purposes of clarity, so long as Client continues to timely pay invoices for Data
Storage fees and any Support Services requested by Client, this Agreement shall continue in effect, including
Renewals, and Client shall retain access to the data from its existing Applicant Entries. The amount invoiced for
data storage overage shall be consistent with the amount(s) listed in the Quote for the prior License Year, unless
MMI gives Client sixty (60) days' notice of a data storage price change. If Client does not pay the data storage
fee(s) within fifty-nine (59) days from the date listed on the original invoice, MMI may terminate this Agreement
and, at MMI's sole discretion, permanently delete Client's data and/or revoke Client's access to the eSOPH
System.
4.3 Termination.
4.3.1 If this Agreement is not renewed in accordance with Section 4.2, it shall automatically
terminate upon expiration of the then -current License Term.
4.3.2 Either Party may terminate this Agreement prior to expiration of a License Term without
cause upon sixty (60) days prior written notice to the other Parry, provided that:
(a) If Client terminates this Agreement prior to expiration of the current License
Term or current Renewal Term without cause, all fees for the remainder of the respective License Term or Renewal
Term listed in Table 3.2 (License Term Fees and Credits) shall become due and payable. Client shall pay all such
fees in addition to any balance already outstanding within thirty (30) days of receipt of invoice.
(b) If MMI terminates this Agreement prior to expiration of the License Term or
Renewal Term without cause, MMI will issue Client a refund for up to 25% of the remaining Entries, minus any
outstanding charges owed by Client. MMI does not issue refunds in greater amounts, or for other circumstances,
due to the upfront expenses MMI sustains from continuous maintenance of the eSOPH System.
4.3.3 MMI may terminate this Agreement immediately for cause upon any breach by Client of
Section 2.4 (Restrictions on Use), or Section 2.5 (Acknowledgement of Limited Rights); or if Client or any of its
Authorized Users violates MMI's Intellectual Property Rights.
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MENDEL, INC.
4.3.4 Either Party may terminate this Agreement with cause upon thirty (30) days written notice
to the other Party in the event the other Party: (a) becomes insolvent; (b) makes an assignment for the benefit of
creditors; (c) files a voluntary bankruptcy petition; (d) acquiesces to any involuntary bankruptcy petition; (e) is
adjudicated bankrupt; (f) ceases to do business; (g) or other reason amounting to any violation of law connected
to the use of the eSOPH System.
4.3.5 Without limiting the Parties respective rights in Sections 4.3.3 and 4.3.4 above, either
Party may terminate this Agreement with cause in the event that the other Party breaches this Agreement and the
breaching Party does not cure such breach within thirty (30) days after receiving written notice of the breach and
intent to terminate from the non -breaching Party. If either Party gives notice to the other for substantially the
same breach three (3) times during a twelve (12) month period, the non -breaching Party may terminate this
Agreement immediately with cause upon receipt of the third notice by the breaching Party.
4.3.6 A Parry's termination of this Agreement under this Section 4.3 does not limit either Party
from seeking other appropriate legal remedy for any breach.
4.4 Effect of Termination. In the event of termination hereunder, except as set forth in Section 4.3.2(b)
above in the event MMI terminates without cause, Client shall have no right to a refund upon termination. Upon
termination, MMI will not issue any refunds to Client for payments made pursuant to Section 3 of this Agreement,
unless the reason for termination is an independent, sole act of NMI and also without cause. Client shall be obligated
to pay in full upon Termination all invoices which were not disputed prior to the Termination. Client may continue
to access the information for previously entered Applicants in the eSOPH System for a period of thirty (30) calendar
days.
4.5 Survival. Where the context, nature, or express terms of any provision indicates intent that it shall
survive termination or expiration of this Agreement, then it shall survive the same, including without limitation
Sections 1 (Definitions), 2.4 (Restrictions on Use), 2.5 (Acknowledgement of Ownership and Limited License
Rights), 3 (Fees and Payment), 4.3 (Termination), 5 (Data Access, Confidentiality and Security), 6 (Representations
and Warranties), 7 (Limitation of Liability), 9 (Corrective Actions), 10 (Insurance), 11 (Notices) and 12 (General
Terns and Conditions).
5. DATA ACCESS, CONFIDENTIALITY AND SECURITY
5.1 Authorized User Access Only. Client is responsible for all use of its Authorized Users accounts
on the eSOPH System. Client shall ensure that its Authorized User(s) properly control and limit access to the eSOPH
System to Client's appropriate Authorized Users, and that Client's Authorized Users properly protect their logins,
passwords and all other login credentials to prevent unauthorized access and misuse of Client Data, Applicant Data
and any other information that may be accessed through the eSOPH System. Client is responsible for its own policy
regarding Authorized Users changing their passwords, minimum password complexity requirements beyond what
is required by the eSOPH System, and which computer terminals may be used to access the eSOPH System by its
Authorized Users, including any unattended devices or computers logged into the eSOPH System. Client shall
ensure any previous Authorized User who no longer has a valid purpose to access the eSOPH System will have their
eSOPH System login credentials disabled within the eSOPH System, without delay. Former Authorized Users who
separate from their relationship with Client shall have their login credentials immediately disabled, without delay,
by Client. Client will ensure that each Authorized User has unique login credentials; an Authorized User may not
share or disclose its login credentials to any other person, even if such other person is also an Authorized User.
5.2 Two -Factor Authentication. Client acknowledges the eSOPH System offers optional two -factor
authentication using Google Authenticator. This service is automatically available to those Clients who desire a
two -factor frontend login process.
5.3 Client's Sharing of Applicant Data. The eSOPH System allows Client to externally share
Applicant data and other information about Applicants from the eSOPH System. If Client or its Authorized User(s)
share Applicant Data or other information about an Applicant with a third party, Client must: (i) possess valid,
signed authorization from each Applicant whose Applicant Data or information is to be shared, legally adequate to
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authorize Client to share such Applicant Data or information, (ii) refrain from violating any law, policy, term or rule
by sharing, transmitting or otherwise disclosing such Applicant Data or information, and (iii) keep the Applicant
Data and information secure and private in accordance with any and all applicable privacy laws, and other legal
requirement(s) and obligation(s).
5.4 MMI's Sharing of Basic Applicant Data. Client acknowledges and understands a valuable part
of the eSOPH System is the ability for Client to see if an Applicant has been entered into the cSOPH System by
other MMI client(s). If Client enters an Applicant into the eSOPH System, the eSOPH System will disclose if any
other MMI client has previously entered the same Applicant into the eSOPH System. "Basic Applicant Data"
information produced to other MMI clients is limited to: Agency/entity name, position applied for, entered date, and
closed date. The eSOPH System will also display the point of contact for any other agency(s) who have previously
entered the Applicant into the eSOPH System. If Client purges their backgrounds from the cSOPH Systern, the
Basic Applicant Data (as defined in this Section) will remain on the eSOPH System and be visible to other MMI
clients. Further information regarding another agency's entry of an Applicant, must be gained through that agency's
permission and their own internal process(es).
5.5 Security Incident. In the event MMI learns of a Security Incident, MMI will make every effort to
notify Client within 24-hours of learning of the breach. Notification will be made to at least one of Client's
Administrative Users listed on Exhibit A via telephone and email. Notifications will only be made when an actual
Security Incident has occurred; if the data is encrypted, by industry standards, no Security Incident is considered to
have occurred and no notification will be made. At the request of Client, and with Client's cooperation and
assistance, MMI will work together with law enforcement and other personnel in connection with the unauthorized
access into the eSOPH System. MMI takes the privacy and security of data seriously, and uses reasonable
administrative, technical, and physical safeguards to protect the confidentiality and security of all Client Data.
Clients are encouraged to review MMI's eSOPH Security Overview, which is updated as needed by MMI from time
to time and is available upon request.
5.6 Ownership of Client Data. Client owns all Client Data entered into the CSOPH System by its
Authorized Users and its Applicants, including Applicant Data entered in response to the Client's request for
information to process an Applicant's background investigation.
5.7 Post -Termination Retention of Data. Without limiting Client's rights to Client Data and
Applicant Data hereunder, MMI may retain and store the following data during and after the tern of this Agreement:
Applicant name, Applicant telephone number, Applicant mailing address, Applicant email address, Applicant year
of birth, date the Applicant was entered into the eSOPH System, Applicant's background investigation close date,
position Applicant has applied for with Client, and the legal agreements (e.g., MMI's Electronic Signature
Agreement, Terms of Use and Privacy Policy) related to any Authorized User's or Applicant's use of the eSOPH
System. MMI may retain such information and use it to comply with applicable law and the eSOPH System Terms
of Use and Privacy Policy and for the purposes described in Section 5.4 (MMI's Sharing of Basic Applicant Data).
Other than as stated in this Agreement, MMI will not use such information for other purpose.
5.8 Confidential Information. In performance of this Agreement, the Parties may directly or
indirectly disclose to each other confidential information, proprietary information, or confidential data
("Confidential Information"). "Confidential Information" shall include any data and/or information that is
identified by either Party as confidential (either orally or in writing) or is of such a nature that a reasonable person
would understand such information to be confidential, including, but not limited to, (a) trade secrets or confidential
business information of either Party, including without limitation information about such Party's technology,
financial information, and plans; and (b) personal information of employees, Applicants, and Authorized Users,
including but not limited to, images, names, addresses, Social Security numbers, e-mail addresses, telephone
numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement
records, educational records or other information identifiable to a specific individual that relates to any of these
types of information ("Personally Identifiable Information" or "PH").
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MENDEL, INC.
5.9 Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential
Information shall not include information the receiving Party can prove by clear and convincing written
contemporaneous evidence is: (1) publicly known through no fault or negligence of the receiving Party; (2) rightfully
possessed by the receiving Party prior to disclosure by the disclosing Party; (3) rightfully obtained by the receiving
Party from a third -party in lawful possession of such Confidential Information without obligation of confidentiality;
(4) independently developed by the receiving Party without reference to or use of the disclosing Party's Confidential
Information.
5.10 Restrictions on Use and Disclosure. Each party shall not use the other party's Confidential
Information for any purpose other than performance of its obligations and exercise of its rights under this Agreement.
Furthermore, each party shall not disclose the other party's Confidential Information to any third party except to
such party's employees, contractors, and other representatives who (a) have a bona fide need to know such
Confidential Information for purposes of performing this Agreement, (b) have been informed of the confidential
nature of such information, and (c) have agreed in writing or are otherwise legally bound not to use or further
disclose such information except as permitted by this Agreement.
5.11 Disclosure Required by Law. Notwithstanding the foregoing, Confidential Information may be
disclosed by a receiving Party to the extent required to be disclosed by public disclosure law or a court order,
subpoena, or similar legal requirement; or necessary to disclose to prevent severe physical injury to or loss of life
of an individual; provided, however that the receiving Party shall notify the disclosing Party prior to such required
disclosure promptly and sufficiently in advance to permit the receiving Parry to contest or limit such required
disclosure, including without limitation redaction of trade secret information prior disclosure.
5.12 Public Records Request. MMI acknowledges that Client, as a public entity, is at all times subject
to state public records acts, as now existing or as amended. If Client receives a public records request for all or any
portion of this Agreement, including any documents or materials provided to Client under this Agreement, generally
such information will be a public record and must be disclosed to the public records requester.
5.13 Storage and Encryption. During the Term of this Agreement, MMI will store and maintain Client
Data and Applicant Data for use and access by Client and its Authorized Users under the terms of this Agreement.
MMI will ensure industry standard data encryption methods are in place for storage of Client Data and Applicant
Data. The encryption shall meet or exceed CJIS standards.
5.14 CJIS Compliance; Background Checks. MMI will comply with Criminal Justice Information
Systems ("CJIS") rules and regulations as they may apply to Applicant and Client data. MMI shall ensure all
employees and contractors of MMI granted access to Client Data satisfactorily complete a background check and
meet the requirements set forth by CJIS for access to Client Data.
5.15 Backups. For Client Data on the production system, MMI shall record snapshot copies of Client
Data hourly during the Term and shall record full backup copies of Client Data once per week. Backup copies are
stored on both MMI's production server, to enable a quick restore if necessary, and remotely within Amazon Web
Services GovCloud. Backup records that are older than one calendar week are automatically purged from MMI's
production system. At least three months of backup copies are stored remotely within AWS GovCloud. MMI uses
proprietary software to monitor the automated tasks of Microsoft SQL. For Client Data the Client has sent to the
archive storage solution: This data will be retained within the archive storage solution until such time client purges
such data. Data sent to archive storage by the Client is not backed up to help control costs and offer a less expensive
long-term storage solution for the Client.
5.16 Payment Card Data. If Client will request or have access to credit card information, Client
represents that it is presently in compliance with, and will remain in compliance with, an approved version of the
Payment Card Industry Data Security Standard, developed and published jointly by American Express, Discover
Financial Services, JCB, MasterCard Worldwide and Visa International ("Card Issuers") or the PCI Security
Standards Council (the "Council"), as applicable, for protecting individual numbers used to identify credit and debit
card accounts and other personally identifiable information relating to the use of such credit and debit card accounts
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MILLER MENDEL, INC.
("Cardholder Information"), as the same may be amended, updated, replaced or augmented by the Card Issuers
and the Council (the "PCI Standard"). Client acknowledges that it may, in connection with performing its duties
in accordance with this Agreement, have access to, or be provided, Cardholder Information. Client may not commit
any act or omission that causes MMI to be in violation of the PCI Standard or to be fined, sanctioned or penalized
by Card Issuers, the Council or any third party for the failure to properly protect, secure, maintain, use and store
Cardholder Information. Client further acknowledges and agrees that, as between Client and MMI, all Cardholder
Information is, and will remain, controlled by and the responsibility of Client. Client further acknowledges and
agrees that Client is solely responsible for the security of Cardholder Information that it possesses or controls.
5.17 Acts or Omissions of Client. MMI shall have no responsibility or liability with respect to, and
Client shall solely be responsible and liable for, any Security Incident and any loss, expense, damage, cost, or
liability associated therewith, to the extent caused by or resulting from any act or omission of Client or Client's
Authorized Users, employees, contractors (excluding MMI), or agents, including without limitation: (a) their loss
of control of any device; (b) their failure to maintain the confidentiality of their log -in credentials; (c) their
transmission of data via methods that are not secure; (d) any vulnerability in their environment, systems, hardware,
software, or physical or administrative security safeguards or procedures; (e) their use of the eSOPH Platform in
violation of this Agreement or any Documentation; (f) their failure to obtain adequate release(s), waiver(s), or legally
or contractually required consent; (g) Client's failure to maintain hardware and software that are compatible with
any updated or security patches released and implemented by MMI; (h) Client's declining to implement two -factor
authentication as described in Sections 5.2 (Two -Factor Authentication).
6. REPRESENTATIONS AND WARRANTIES
6.1 Client represents and warrants that:
6.1.1 Client has full right, power and authority to enter into and perform its obligations
according to the terms of this Agreement;
6.1.2 To Client's knowledge, the Client Data does not and will not infringe or misappropriate
any copyright, patent, trade secret, trademark, or other proprietary right held by any third -parry and is free of any
lien, claim, security interest or encumbrance; and
6.1.3 Neither Client nor any of its employees has received, offered or provided, nor will it
receive, offer or provide, directly or indirectly, any gift, gratuity, favor, entertainment, loan or other thing of
monetary value to any employee or agent of MMI as an inducement to do business with MMI. Client further
warrants its Authorized Users have not, and will not engage in any collusion with any other potential supplier to
secure this Agreement.
6.2 MMI represents and warrants that:
6.2.1 MMI has full right, power and authority to enter into and perform its obligations
according to the terms of this Agreement;
6.2.2 To MMI's knowledge, the Software complies with all applicable national, state, and local
laws and regulations and, to MMI's knowledge, does not contain any material that infringes, violates, or
misappropriates the Intellectual Property Rights of any third party, and (ii) to the extent the Software contains any
materials subject to third party rights, MMI has obtained any and all necessary clearances, releases, approvals,
licenses, or consents from third parties and made any and all required payments to third parties (including without
limitation to unions or guilds) so that Client and its Authorized Users can exercise the rights and licenses
authorized under this Agreement;
6.2.3 For the Term of this Agreement, the eSOPH System will operate substantially in
conformance with any written specifications contained in any Documentation and in this Agreement, including
the Client Specific Terms of the Quote. MMI's sole obligation to Client and Client's sole remedy under this
warranty is to correct the eSOPH System so it will perform within any represented specifications or refund the
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MILLER MENDEL. INC.
related license fee, whole or in part. This warranty is void if any unauthorized modifications are made to the
eSOPH System or if the eSOPH System is not used in compliance with the terns of this Agreement; and
6.2.4 Except for the limited warranty provided in this Agreement, the eSOPH System and any
other MMI products and services are provided "As Is" and MMI disclaims all warranties, express or implied, that
may arise either by the Parties' agreements or by operation of law, including without limitation any warranty of
merchantability or fitness for a particular purpose. MMI does not warrant the operation of the eSOPH System
shall be error or "bug" free or that the eSOPH System will meet the requirements or expectations of Client, its
Authorized Users or Applicants.
7. MUTUAL INDEMNIFICATION; ASSUMPTION OF RISK; LIMITATION OF LIABILITY
7.1 Mutual Indemnification. Each Party (the "Indemnifying Party") shall indemnify, defend and
hold harmless the other Party (the "Indemnified Party"), including each of the Indemnified Parry's respective
Affiliates officers, directors, shareholders, employees, representatives, agents, successors and assigns (each an
"Indemnified Person"), from and against all claims by any third party asserted in any cause of action, and including
any damages, penalty, cost or expense (including reasonable attorneys' and witnesses' fees and costs), to the extent
such cause of action arises from (a) the Indemnifying Party's gross negligence or willful misconduct in performing
any of its obligations under this Agreement, or (b) a material breach by the Indemnifying Party of any of its
representations, warranties, covenants or obligations under this Agreement; PROVIDED, however, such
indemnity shall not extend to claims arising from any breach of this Agreement or willful or negligent act by the
Indemnified Party or an Indemnified Person of the Indemnified Party, and provided that: (i) the Indemnified
Person promptly notifies the Indemnifying Party of the claim in writing; and, (ii) the Indemnified Person and
Indemnified Party provide the Indemnifying Party with the assistance, information and authority necessary to
perform the Indemnifying Party's obligations under this Section. The Indemnified Person shall be entitled to
participate at its option and expense through counsel of its own selection, and may join in any legal actions related
to any such claims, demands, losses, damages, costs, expenses and penalties. The Indemnifying Party shall not
enter into any settlement which includes an admission of negligence or wrongdoing by any Indemnified Person,
without the prior written consent of such Indemnified Person.
7.2 Assumption of Risk; Limitation of Liability. Each Party shall be solely liable for third party
claims arising from any willful or negligent act or failures to act, or the errors or omissions, of the Party's owners,
officers, employees, agents or contractors. Excepting for the breach provisions of this Agreement, neither Party
to this Agreement, nor any of such Parties' respective Affiliates, trustees, directors, officers, employees, fellows
or agents shall be responsible or liable to the other Party for any injury, loss, or damage of any kind, including but
not limited to indirect, special, incidental consequential, punitive damages or lost profits, relating to design,
development, specification, manufacture, production or use of the eSOPH software and services or any part
thereof. The limitations on liability of the previous sentence shall apply even though a Party may have been
advised of the possibility of such injury, loss or damage. This paragraph shall not apply to an Indemnifying
Parry's obligation to indemnify an Indemnified Person under this Section or any obligations to maintain specific
insurance requirements pursuant to any provision of this Agreement. Nothing in this Agreement shall be construed
to limit any remedies available to the Parties in law or equity, including but not limited to injunctive relief.
8. NOTIFICATION OF TIUR -PARTY ACTION OR CLAIM. Client shall notify MMI of any third
party lawsuit, action, and proceeding or claim brought or threatened by a third party against Client or its employee,
subcontractor, or other representative or agent based in part on Client's or an Applicant's use of the eSOPH
System, including without limitation (a) claims regarding privacy, security, collection, use, processing, or
disclosure of Client Data collected through or stored by the eSOPH System, (b) and claims where it is reasonably
likely that MMI will be named as a party or witness.
9. CORRECTIVE ACTIONS. If all or any part of the Software is held, or MMI determines that it could
be held, to infringe, wrongfully use or misappropriate any third -party intellectual property right, MMI at no cost
to Client: (a) will procure for Client the right to continue using the eSOPH System in accordance with its rights
under this Agreement; (b) replace the item with a substantially equivalent item that does not infringe, wrongfully
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 16 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)
MILLER MENDEL. INC.
use or misappropriate any third -party intellectual property rights; or (c) modify the item (without material loss of
functionality) so that it no longer infringes, wrongfully uses or misappropriates any third -party intellectual
property right. If MMI is unable to successfully accomplish any of the actions described above after using its
commercially reasonable best efforts to accomplish each of them in a timely manner, then MMI will refund to
Client a pro -rated amount of the license fees paid by Client hereunder in connection with the unused portion of its
licensed rights to the eSOPH System under this Agreement. The remedies set forth in this Section 9 are Client's
sole and exclusive remedy and MMI's sole obligation with respect to breach of the warranty contained in Section
6.2.2.
10. INSURANCE
10.1 Throughout the Term MMI, at its sole expense, will carry and maintain: (a) Commercial General
Liability Insurance in the amount not less than $1,000,000 combined single limit per occurrence, $2,000,000
aggregate; (b) Stop Gap/Employer's Liability Insurance in the amount not less than $ 1,000,000 per incident; (c)
Professional Liability Insurance in the amount not less than $1,000,000 per claim and in the aggregate; and (d)
"Cyber" Insurance in the amount not less than $1,000,000 combined single limit occurrence, $2,000,000 aggregate.
MMI will have Client added to the MMI Insurance policy and issue a certificate to Client at Client's request. If
Client has requested to be added to the policy, MMI will provide to Client a new certificate, each year, if requested
by Client.
10.2 Client represents it is self -insured or has appropriate insurance to fulfill and maintain its obligations
and duties under this Agreement.
11. NOTICES. All notices and requests in connection with this Agreement will be deemed given as of the
day they are received either by messenger, delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested, and addressed to MMI or Client at the following
addresses:
For Miller Mendel, Inc., copy of Notice(s) to
Mark Beatty
Rylander and Associates
406 W. 12" St.
Vancouver, WA 98660
12. GENERAL TERMS AND CONDITIONS
For Client, copy of Notice(s) to:
Chief s Office
Santa Ana Police Department
60 Civic Center Plaza
Santa Ana, CA 92701
12.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other
Party, which such consent may not be unreasonably withheld. Subject to this Section 12.1, this Agreement will inure
to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective Parties.
12.2 Compliance With Laws. Each Party will, at its expense, obtain all permits and licenses, pay all
fees, and comply with all federal, state and local laws, ordinances, rules, regulations, codes and orders applicable to
its performance under this Agreement.
12.3 Construction. If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, then that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will
continue in full force and effect. No waiver of any breach of any provision of this Agreement will constitute a waiver
of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be
effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement
has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either party.
12.4 Governing Law. This Agreement will be governed by, and construed in accordance with the laws
of the state Client is located within, as applied to contracts performed therein but without reference to its choice of
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 17 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)
law rules, or the federal laws as applied to contracts performed with the United States government. This Agreement
will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the
application of which is expressly disclaimed.
12.5 Headings. The headings and sections in this Agreement and any exhibit, are for convenience and
will not be construed to define or limit any of the terms or affect the meaning or interpretation of this Agreement
and any exhibit.
12.6 Independent Contractor. MMI and Client are independent contractors under this Agreement, and
nothing in this Agreement may be construed to create a partnership, joint venture, franchise or agency or fiduciary
relationship between them. Neither Party has any authority to enter into agreements or make any representations of
any kind on behalf of the other Party.
12.7 Nonexclusive Agreement. It is expressly understood and agreed that this Agreement does not grant
to Client any exclusive privileges or rights, and MMI may contract with other clients and customers.
12.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together will constitute one and the same instrument. The parties agree that
any facsimile copy, including those exchanged electronically as a .pdf, of a signed counterpart of this Agreement
will be treated the same as a signed original of this Agreement.
12.9 Entire Agreement. This Agreement together with the Quotes and any exhibits attached hereto
contains the entire agreement and understanding of the Parties with respect to the transactions and matters
contemplated herein, supersedes all prior and contemporaneous agreements or negotiations between Client and MMI
concerning the subject matter hereof, and cannot be amended except by a writing dated subsequent to this Agreement
and signed by both Parties. To the extent the terms and conditions of this Agreement conflict with the terms and
conditions of an exhibit, the terns and conditions of this Agreement will control. Terms and/or conditions listed in
purchase orders(s) from Client that are in conflict with or in addition to the terms of this Agreement are not accepted
by MMI. No course of dealing or usage of trade may be invoked to modify the terms and conditions of this
Agreement.
12.10 Copies Shall Be Considered Originals. Any complete, legible signed copy of this Agreement shall
be considered an original.
12.11 Signing Authority. Client represents and warrants the person executing this Agreement is a duly
authorized officer or representative of the Client, and has full authority to execute this Agreement, including
any amendment thereto, for and on behalf of Client. Client understands that it is fully responsible to
ensure the authority of its signatory under to this Agreement and is responsible for any actual
or consequential damages incurred by MMI in the event of a breach of this Section by Client.
12.12 Cooperative Agreement. The provisions of this Agreement will be extended to other city, county
or state governmental entities within the state the Client is located, at then -current pricing. Governmental entities
wishing to use this Agreement (hereinafter referred to as the "Cooperative Entity") will be responsible for obtaining
a Quote specific to their entity, issuing their own purchase documents/price agreements, providing for their own
acceptance, and making any subsequent payments in accordance with the Terns of this Agreement. To determine
pricing for Cooperative Entities, MMI will use the then current pricing formula used for all Cooperative Entities
within the state Client is located within. The Cooperative Entity wishing to use this Cooperative Agreement must
execute with MMI a supplemental Agreement with at least one paragraph specifying they wish to use this
Cooperative Agreement and agree to be bound by the terms of the Cooperative Agreement. The Agreement with the
Cooperative Entity electing to use this Cooperative Agreement shall include language that MMI shall hold harmless
and defend Client (as defined on the first paragraph of page 1 of this Agreement) from all claims, demands, actions
or causes of actions of every kind resulting directly or indirectly, arising out of, or in any way connected with the
use of this Cooperative Agreement. Failure to include such language will be considered a material breach of this
Agreement and grounds for immediate Agreement termination. Cooperative Entities are responsible for obtaining
all certificates of insurance and bonds required. MMI is responsible for providing each Cooperative Entity a copy
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 18 OF 21
Version: Tune 1, 2019— Santa Ana Specific (See Addendum)
MENDEL, INC.
of this Agreement upon request by the cooperative entity. Client makes no guarantee of usage by other users of this
Agreement. The extension of the terms of this Agreement to other entities pursuant to this clause shall be subject to
MMI's discretion as to whether MMI has capacity and ability to do so, including but not limited to personnel,
management, equipment, technical and/or financial limitations.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective duly
authorized representatives.
Miller Mendel, Inc.
By:
Name: Tyler Miller
Title: CEO
Date: May 28, 2020
ATTEST:
of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
TAMARA BOGOSIAN
Assistant City Attorney
Client: City of Santa Ana
By.
AT
Name: Kristine Ridge
Title: City Manager
Date:
RECOMMENDED FOR APPROVAL:
1DMI
of Police
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 19 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)
INC.
EXHIBIT A
ADMINISTRATIVE USERS
The Client hereby designates the following person(s) as Client's Administrative Users. This listing is a complete
listing of all Administrative Users, and completely replaces any prior completed Exhibit A.
Note: Client may give multiple people "admin" permission within the system, at Client's control and discretion.
This form designates only those Administrative Users who may contact MW for Support purposes.
PRIMARY ADMINISTRATIVE USER:
Name:
Title/Position:
Email:
Primary Phone:
OTHER ADMINISTRATIVE USERS (ADDITIONAL FEES APPLYI:
Name:
Title/Position:
Email:
Primary Phone:
Name:
Title/Position:
Email:
Primary Phone:
Name:
Title/Position:
Email:
Primary Phone:
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 20 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)
MILLER MENDEL. INC.
ADDENDUM TO
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT ("MSLSA")
BETWEEN
MILLER MENDEL AND THE CITY OF SANTA ANA
The Parties agree the following Terms of the Master Software License and Services Agreement (or "MSLSA")
are hereby revised as follows and incorporated by reference into the MSLSA.
The following terms are hereby amended to read as follow and incorporated into to the MSLSA:
4.3.2 Either Party may terminate this Agreement prior to expiration of a License Tenn without cause
upon thirty (30) days prior written notice to the other Party, provided that:
(a) If Client terminates this Agreement prior to expiration of the current License
Tern or current Renewal Tern without cause, all fees for the remainder of the respective License Term or Renewal
Term listed in Table 3.2 (License Term Fees and Credits) shall become due and payable. Client shall pay all such
fees in addition to any balance already outstanding within thirty (30) days of receipt of invoice.
(b) If MMI terminates this Agreement prior to expiration of the License Term or
Renewal Term without cause, MMI will issue Client a refund for up to 25% of the remaining Entries, minus any
outstanding charges owed by Client. MMI does not issue refunds in greater amounts, or for other circumstances,
due to the upfront expenses MMI sustains from continuous maintenance of the eSOPH System.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective duly
authorized representatives.
Miller Mendel, Inc.
Client: City of Santa Ana
By: see signatures on page 19
Name: Tyler Miller Name:
Title: CEO Title:
Date: May 28, 2020 Date:
MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 21 OF 21
Version: June 1, 2019 — Santa Ana Specific (See Addendum)