Loading...
HomeMy WebLinkAboutSHIELD OPS, INC. 1INSURANCE NOT REQUIRED N-2011-059 ' ° ° ,WORK M4Y PROCEED CLERK OF COUNCIL DATE, MAY `l.? 3 ZO1? O .sRPn ?2) GREEMENT RE RESEARCH, DEVELOPMENT, USE AND PUBLICITY OF L?r 1 I3TC?l,?? GUNOPS BETA PROGRAM BY SANTA ANA POLICE DEPARTMENT C? o n?K? ?y J This Agreement (hereinafter referred to as "Agreement") is made by and between Shield Ops, Inc., a Nevada corporation having a place of business at 3541 Ocean View Blvd., Glendale, CA 91208 (hereinafter referred to as "Shield Ops") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter referred to as "Santa Ana"), both of which, collectively, are hereinafter referred to as the "Parties" to this Agreement. WHEREAS, Shield Ops has developed a beta software program that enhances investigations of gang crimes and the analysis of local firearm-related problems that it is promoting under the trademark GunOps that it would like to test and further develop on- site at a police department; and WHEREAS, Shield Ops is desirous of having the program GunOps used by multiple users of the Santa Ana Police Department for purposes of research and development based upon feedback from that use; WHEREAS, Shield Ops is also desirous of having a facility in which use of the program GunOps can be publicized and demonstrated to third parties; WHEREAS, Santa Ana is desirous of so using the program GunOps and providing such feedback and allowing Shield Ops to demonstrate and publicize the use of GunOps by Santa Ana; NOW, THEREFORE, in consideration of the following covenants and for good and valuable consideration, the receipt of which is hereby acknowledged by both Parties to this Agreement, Shield Ops and Santa Ana agree as follows: 1. DEFINITIONS. The following words shall have the following meanings when used in this Agreement: "Commercially Reasonable" means taking such steps and performing in such a manner as a well managed business would undertake where such business was acting in a determined, prudent, and reasonable manner to achieve a particular desired result for its own benefit. "Confidential Information" means any material, data, or information in whatever form or media of a Party to this Agreement that is provided or disclosed to the other, except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to the receiving Party or its employees, agents, or representatives prior to such disclosure or is independently developed by the receiving party or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by the receiving Party or its employees, agents, or representatives from a Third Party without obligations of confidentiality. Version 0930'10 "Content" means the audio and visual information, documents, software, products, and services contained or made available to Santa Ana in the course of using the Service. "Custom Programming" means any Software programming developed, authored, written, and/or created by Shield Ops or its agents or subcontractors for or on behalf of Santa Ana. "Derivative Work" means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted (including by linking a preexisting work into the Derivative Work so that a web browser would display the preexisting work within the Derivative Work), and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work. "Documentation" means all user and administrator manuals, operating instructions, installation guides, help files, and other printed, electronic, and online material generally made available to Shield Ops' licensees with respect to the Service, and all other printed, electronic, or online materials provided or made available to Santa Ana, that describe the features, functions, or operation of Service. "Effective Date" means the date the last Party to this Agreement signs below. "Enhancements" means any new Software releases, versions, improvements, modifications, upgrades, updates, fixes, and additions to the Software that Shield Ops markets or makes available to its licensees who are eligible to use the Services. Enhancements shall not include new, separate product offerings by Shield Ops or any Software that provides significant new functionality or new modules. "Intellectual Property Rights" means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. "Notice" means written notice as provided in Section 30 of this Agreement. "Personally Identifiable Information" means any information which, alone or in combination with other information, relates to a specific, identifiable individual. Personally Identifiable Information includes, but is not limited to, individual names, social security numbers, telephone numbers, home address, driver's license number, account number, email address, and vehicle registration number. Any information that can be associated with Personally Identifiable Information shall also be Personally Identifiable Information. For example, an individual's age by itself is not Personally Identifiable Information, but if such age is capable of being associated with one or more specific identifiable individuals then such age would be deemed Personally Identifiable Information. "Santa Ana Data" means any data, information, or material provided or submitted by Santa Ana to Shield Ops in the course of using the Service. "Santa Ana Network" means automated information systems, data or voice networks or telecommunications facilities or computer systems or related equipment of Version 0930'10 2 Santa Ana located at any Santa Ana facility or used by or for Santa Ana, or any part thereof, along with any data the foregoing contain. "SAPD Employees" means employees of the Santa Ana Police Department for the Term of this Agreement and any renewal period. "Service(s)" means the hosting, maintenance, support and other services provided by Shield Ops pursuant to this Agreement to allow Santa Ana web-based access to the program Gun Ops, including the Shield Ops Technology and the Content. "Shield Ops" means Shield Ops, its successors and assigns, and any of its future subsidiaries, or organizations controlled by, controlling, or under common control with it. "Shield Ops Technology" means all of Shield Ops' proprietary technology (including Software, hardware, products, processes, algorithms, user interfaces, know- how, techniques, designs, and other tangible or intangible technical material or information) made available to Santa Ana by Shield Ops in providing the Service. "Software" means computer programs and program objects of any kind (including source code and object code), program set-up and customization parameters, tools, and data and the tangible media on which any of the foregoing are recorded. Software includes all software that is utilized by Shield Ops in connection with the provision of Services to Santa Ana, including all interfaces, Shield Ops Software, Third Party Software, and Custom Programming, and all Enhancements to the foregoing. "Term" means the time from when this Agreement is executed by both Parties until June 30, 2013. "Third Party" means persons, corporations, and entities other than Santa Ana or Shield Ops. "Use" in the context of SAPD Employees using the Service means the ability to access, run, execute, and display the Software. "Virus" means an extraneous piece of computer code knowingly and maliciously inserted by any person for the purpose of causing undisclosed disruption or other harm to the operation of a computer program. 2. WEB-BASED LICENSE GRANT Subject to the terms and conditions of this Agreement, Shield Ops grants to Santa Ana a personal, non-assignable, nontransferable, nonexclusive, limited license to allow SAPD Employees to Use the Service and any Documentation provided with the Service, solely for Santa Ana's own internal purposes and only within the geographical location of the City of Santa Ana, California, during the Term of this Agreement. Also subject to the terms and conditions of this Agreement, Shield Ops grants to Santa Ana a revocable, personal, non-assignable, nontransferable, nonexclusive, limited license to allow SAPD Employees to Use the Service for purposes of demonstrating the Service, as it is used by SAPD Employees, for the purpose of exchanging such information with other qualified law enforcement personnel for the non-commercial purpose of promoting methods to fight crime and for gang enforcement activities, during the Term of this Agreement and while this limited license has not been revoked by Shield Ops. The Software will not be provided to Santa Ana in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment Version 0930'10 3 owned or otherwise controlled by Santa Ana; instead, the Software will be hosted by Shield Ops and accessed and used by Santa Ana through the use of the Internet and Santa Ana's computers. All rights not expressly granted to Santa Ana are reserved by Shield Ops and any of its licensors. 3. INTELLECTUAL PROPERTY OWNERSHIP Shield Ops (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Shield Ops Technology and any Enhancements, the Documention, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Santa Ana or any Authorized User relating to the Shield Ops Technology, Enhancements, the Documention, the Content or the Service. This Agreement is not a sale and does not convey to Santa Ana any rights of ownership in or related to the Shield Ops Technology, the Documention, the Content, the Service or the Intellectual Property Rights owned by Shield Ops. Shield Ops' name, Shield Ops' logo, and the product names associated with the Service are trademarks of Shield Ops or third parties, and no right or license is granted to use them. Santa Ana Data, or any derivatives thereof, contained in any Shield Ops repository, shall be and remain the sole and exclusive property of Santa Ana and be treated by Shield Ops as Confidential Information. Santa Ana, not Shield Ops, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Santa Ana Data, and Shield Ops shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Santa Ana Data. Santa Ana shall be entitled to an export of Santa Ana Data, without charge, upon the request of Santa Ana within thirty days of termination of this Agreement. Shield Ops is provided a license to Santa Ana Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Santa Ana Data only to the extent necessary in the provisioning of the Services and as provided for in this Agreement. The provisions of this Section shall survive the termination of this Agreement. 4. TRAINING Shield Ops shall provide Santa Ana with training services and Documentation at no cost with a view toward permitting a reasonable number of SAPD Employees to use the System. Such training services shall take place at Santa Ana's law enforcement facilities in the City of Santa Ana at a time to be defined later by mutual agreement between the Parties. 5. ACCESSIBILITY Shield Ops will make the Software available for Santa Ana's use during the Term on Santa Ana's computer systems that meet Shield Ops system recommendations for the Software. Shield Ops will use Commercially Reasonable endeavors to provide Santa Ana with secure access to the latest supported version of the Software via the Internet from the hosting facility that Shield Ops leases from a Third Party hosting vendor (the "Hosting Site") on a 24x7 basis (excludes scheduled downtime), except for Version 0930'10 4 scheduled system back-up or other on-going maintenance as required and scheduled in advance by Shield Ops unless such advance scheduling cannot be reasonably provided. Shield Ops will provide a single administrator user account for secure administrator access. Shield Ops will also provide this administrator user the necessary tools to create other users for access to the Software. 6. DATA SECURITY When present at Santa Ana's facilities or accessing Santa Ana Data, Shield Ops will observe and comply with Santa Ana's security procedures that have been communicated to Shield Ops provided such security procedures are reasonable and mutually applicable to Santa Ana personnel similarly situated. Shield Ops will establish and maintain safeguards against the destruction, loss, or alteration of Santa Ana Data in its possession or control that are no less rigorous than those maintained by Shield Ops as of the Effective Date for its own data of a similar nature. Santa Ana may keep backup Santa Ana Data in its possession if it chooses and establish backup security for Santa Ana Data. Without limiting the generality of the foregoing, Shield Ops will use Commercially Reasonable Efforts, including through systems security measures, to guard against the unauthorized access, alteration, or destruction of Santa Ana Data. Such measures will include the installation of software that: (i) requires all users to enter a user identification and password prior to gaining access to the information systems; (ii) controls and tracks the addition and deletion of users; and (iii) controls and tracks user access to areas and features of the information systems. Shield Ops personnel will not attempt to access, or allow access to, any Santa Ana Data that they are not permitted to access under this Agreement. If such access is attained, Shield Ops will immediately report such incident to Santa Ana, describing in detail the accessed Santa Ana Data, grid take Commercially Reasonable measures to stop the access, prevent recurrences, and return to Santa Ana any copied or removed Santa Ana Data. To the extent that Shield Ops or any of its personnel is provided access to any of the Santa Ana Network, the following provisions shall apply to Shield Ops and its personnel (and Shield Ops shall be responsible for its personnel's compliance therewith): (i) such access will be provided by Santa Ana solely to allow Shield Ops to provide the Services to and for Licensee and for confidential research and development with a view toward improving Services; (ii) Shield Ops shall not access or modify the Santa Ana Network or any data on the Santa Ana Network without express written authorization from Santa Ana; (iii) Shield Ops shall not break, bypass, or circumvent, or attempt to break, bypass, or circumvent, any security system or measure of Santa Ana; (iv) Shield Ops shall not obtain, or attempt to obtain, access to any hardware, program or data other than that which Shield Ops owns, is maintaining pursuant to this Agreement, or to which Shield Ops has been given access intentionally by Santa Ana; (v) Shield Ops shall observe and comply with all Commercially Reasonable security, conduct and safety measures, procedures and regulations, including encryption of data, as Santa Ana may establish or provide to Shield Ops from time to time; and (vi) in the event that Shield Ops learns that it or any of its personnel have breached any of the foregoing restrictions, Shield Ops shall (A) promptly notify Santa Ana of the details for version 0930'10 rj the same of which it is aware, and (B) cooperate as requested by Santa Ana in any investigation thereof. 7. RESTRICTIONS ON USE Use of the Services and use of the Shield Ops Technology and Documentation is restricted to use by SAPD Employees operating within the City of Santa Ana, California only, and only for Santa Ana's internal purposes. Santa Ana may not use the Services, the Shield Ops Technology or the Documentation for the benefit of any Third Party or provide service bureau or other access or use of the Services, the Shield Ops Technology or the Documentation to any Third Party. Santa Ana may not, directly or indirectly, license, sublicense, assign, distribute, transfer, sell, resell, rent, lend, lease or otherwise provide, exploit or make available the Services, the Shield Ops Technology or the Documentation (or any portion thereof, including without limitation any capacity), to any Third Party, and any attempt to do so is null and void. Santa Ana may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Santa Ana shall not (i) modify or make any Derivative Works based upon the Service, the Content or the Documentation; (ii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Santa Ana may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. Santa Ana may use the Service and Content only for Santa Ana's internal purposes and shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of Third Party privacy rights; (iii) send or store material containing software Viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) infringe on any Third Party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (v) violate any applicable law, statute, ordinance or regulation (including those regarding export control); or (vi) take any actions that are defamatory, trade libelous, threatening, harassing, or obscene. Santa Ana shall not interfere with. or disrupt the integrity or performance of the Service or the data contained therein or attempt to gain unauthorized access to the Service or its related systems or networks. Santa Ana will comply with the service usage policies of Shield Ops. Shield Ops may, in its discretion, revise these service use restrictions upon thirty (30) days' prior notice to Santa Ana. Santa Ana shall accept all Enhancements to the Service implemented by Shield Ops during the Term of this Agreement at no cost to Santa Ana. Version 0930'10 6 8. OBLIGATIONS AND RESPONSIBILITIES OF SANTA ANA Santa Ana is responsible for all activity occurring under SAPD Employees accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Santa Ana's use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Santa Ana shall: (i) notify Shield Ops immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Shield Ops immediately and use Commercially Reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Santa Ana or SAPD Employees; and (iii) not impersonate another Shield Ops user or provide false identity information to gain access to or use the Service. Santa Ana will retain responsibility for administering security within the Shield Ops applications (e.g., the granting of rights to a user for a specific form in the application). Santa Ana is responsible for maintaining its user desktops and providing SAPD Employees network access to the Software. Santa Ana is also responsible for ensuring that SAPD Employees comply with this Agreement's terms and conditions with respect to Use of the Software and Services. Santa Ana shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to Software hosted at the Shield Ops Hosting Site. Shield Ops shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Santa Ana in accessing the Internet to access the Software. Santa Ana shall provide adequate industry "best practice" standards to ensure reasonable security for integration between applications at the Santa Ana site and Software hosted by Shield Ops. Santa Ana shall provide accurate input information in the manner reasonably prescribed by Shield Ops in connection with the Software and Services provided under the terms and conditions of this Agreement. Santa Ana shall advise Shield Ops of any changes to Santa Ana's operations or other information that would require a change in the support, operation, or configuration of the hosted Software. Santa Ana shall configure necessary user accounts via the administrator account provided by Shield Ops. Santa Ana shall be responsible for ensuring that any Santa Ana Data is accurate, not corrupt in any way, and does not contain any viruses. Upon detection of any error in the Service or Shield Ops Software, at its earliest convenience, Santa Ana shall provide Shield Ops a listing of output and any other data, including databases and backup systems, that Shield Ops reasonably may request in order to reproduce operating conditions similar to those present when the error occurred. 9. SHIELD OPS' RIGHT OF ACCESS During the Term of this Agreement., Santa Ana shall allow Shield Ops reasonable access to SAPD Employees for purposes of research and development and for making improvements to the Service and Santa Ana agrees that any results of such research and development, including suggestions that may be made by SAPD Employees, shall, to the fullest extent allowed by law, be Confidential Information of Shield Ops and Shield Ops shall own any Intellectual Property Rights arising from or relating to such Confidential Information. Version 0930 O 7 During the Term of this Agreement, Licensee shall allow Shield Ops reasonable access to SAPD Employees and Santa Ana's facilities where the Service is used by SAPD Employees to demonstrate Santa Ana's use of the Service to Third Parties for purposes of promoting and marketing the Service to Third Parties and, unless impracticable, Shield Ops shall provide Santa Ana with at least seventy-four hours notice of any such desired access. If at any time during the Term of this Agreement Santa Ana believes that Shield Ops has requested unreasonable access under this paragraph, Santa Ana shall provide Shield Ops with notice of such position and all further access under this Agreement for which prior notice has not already been given by Shield Ops shall be suspended for a period of seventy-two hours or until the parties reach an agreement regarding further access. In the event that the parties cannot agree to what is reasonable access after that point, either party shall have the right to terminate this Agreement upon written notice to the other party, said termination to be effective fourteen days after giving such written notice. The parties to this Agreement recognize that persons who may be granted access under this Section may include law enforcement personnel of Third Parties as well as other non-law enforcement personnel. The parties to this Agreement also recognize that Santa Ana Data that may used by the Service may be subject to legal restrictions in terms of whether non-law enforcement personnel have access to such Santa Ana Data and, if such access is allowed, the conditions under which it may be allowed. The parties to this Agreement also recognize that the Service will be used by SAPD Employees at Santa Ana's law enforcement facilities and that Santa Ana has a legitimate concern for the safety and security of Santa Ana's employees and law enforcement facilities. Accordingly, the parties agree that any access allowed under paragraph 3 shall be predicated upon: (1) reasonable advance notice provided by Shield Ops to Santa Ana of Shield Ops' desire and intent to provide such access; (2) compliance of Shield Ops and/or any Third Parties granted such access with all requirements that Santa Ana may reasonably require to ensure that any such access does not violate any legal obligation imposed upon Santa Ana by law; and (3) compliance of Shield Ops and/or any Third Parties granted such access with all reasonable conditions Santa Ana may impose to insure the safety and security of Santa Ana's law enforcement facilities and personnel while Shield Ops and/or any Third Party are in Santa Ana's law enforcement facilities. For purposes of this subparagraph, failure of any such predicate conditions will justify denial of such access to any such person causing such failure until such time as the failure is cured but such failure shall not constitute a material breach of this Agreement. 10. SHIELD OPS' RIGHT OF PUBLICITY Shield Ops shall have the right to publicize Santa Ana's use of the Service, and the results of such use, for purposes of marketing and advertising. Shield Ops may include Santa Ana's name, logo and summary description of its use of the Service in a published licensee list. All press releases by either party will have a mutual review and written consent prior to release, which shall not be unreasonably withheld or delayed. Santa Ana agrees that Shield Ops can publish case studies and "success stories" about Santa Ana's use of Service and the results thereof on Shield Ops's web site, in its sales Version 0930'1 O $ materials and in any other media upon Santa Ana's approval, which shall not be unreasonably withheld or delayed. In addition, Santa Ana agrees to act as a reference to potential prospects of Shield Ops. 11. BENCHMARKING With respect to any benchmark reports, Santa Ana acknowledges that the contents of each benchmark report are based upon information contained in Shield Ops' database. Santa Ana acknowledges Shield Ops' claim that the contents of such database belong solely to Shield Ops and may be used by Shield Ops in future engagements for other customers. Santa Ana also acknowledges that the information contained in each benchmark report and other deliverables may become a part of Shield Ops' database and may be used in future engagements for other customers. Shield Ops cannot use any Santa Ana Data in Shield Ops' database unless such data are coded to preserve anonymity and the security of such information. Under no circumstances may Shield Ops include any Personally Identifiable Information that Santa Ana has identified as Personally Identifiable Information in the database. 12. COMMON PERSONNEL Shield Ops acknowledges that Mr. Rocky Edwards is an employee of Santa Ana and Santa Ana acknowledges that Mr. Rocky Edwards is an officer and a director of Shield Ops. Santa Ana agrees that Mr. Rocky Edwards can use the Service for purposes of his employment with Santa Ana when he is working for Santa Ana in the performance of his daily duties for Santa Ana. Both Shield Ops and Santa Ana agree that Mr. Rocky Edwards will not be the point of contact for Santa Ana to contact Shield Ops and Mr. Rocky Edwards will not be a representative of Shield Ops in any way while he is pertorming his daily duties for Santa Ana. Mr. Rocky Edwards shall be allowed to provide guidance and training as needed to assist Santa Ana on behalf of Shield Ops when he is not working on Santa Ana's time. 13. RIGHT OF SHIELD OPS TO PROVIDE SERVICE TO THIRD PARTIES Santa Ana recognizes that Shield Ops' employees performing the Services under this Agreement may perform similar services for Third Parties, and this Agreement shall not prevent Shield Ops from providing services or developing materials that are competitive with those developed or provided hereunder regardless of any similarity to such services or materials, provided, however, that Shield Ops shall not use or infringe upon any Confidential Information of Santa Ana in the performance of such services for Third Parties. 14. FEES AND PAYMENT Santa Ana shall pay Shield Ops a subscription fee of one United States Dollar ($1 .00) for the Services for the Term. Santa Ana shall also pay any taxes, whether federal, state, or local, however designated, that may be validly levied or based upon this Agreement or upon the Services and Documentation furnished hereunder, excluding, however, taxes based on or measured by Shield Ops' net income, and any taxes or amounts in lieu thereof paid or payable by Shield Ops in respect of the foregoing. Santa Ana shall have the right to Version 0930'10 9 have Shield Ops contest with the imposing jurisdiction, at Santa Ana's expense, any such taxes that Santa Ana deems are improperly levied. 15. EXCESS DATA STORAGE FEES The maximum disk storage space provided to Santa Ana at no charge shall be no less than is necessary to accommodate at least two year's worth of data or 2GB, whichever is greater. If the amount of disk storage required exceeds these limits, Santa Ana may be charged Shield Ops' cost for such additional disk storage. Shield Ops will use reasonable efforts to notify Santa Ana when the average storage used by it reaches approximately 90 percent of the maximum, at which time Santa Ana shall have thirty days to pay for the additional costs of storage or terminate this Agreement. Failure to so notify Santa Ana shall eliminate Santa Ana's responsibility for such additional storage charges." Shield Ops reserves the right to establish or modify its general practices and limits relating to storage of Santa Ana Data. 16. THIRD PARTY SOFTWARE AND LICENSE FEES Third Party Software is provided on a pass through or sublicense basis and may be subject to separate license agreements or registration requirements and limitations on copying and use and Santa Ana agrees to be bound by the terms of any such Third Party license agreements. Third Party Software shall be warranted on a pass through basis in the same manner and for the same period and extent provided by the original software manufacturer. In the event that any Third Party license fee must be paid, or becomes payable, to allow Santa Ana to Use or continue to Use Shield Ops Technology, Santa Ana shall pay such license fee or this Agreement shall be terminated. Shield Ops represents that there is no Third Party License fee that Santa Ana must pay to Use Shield Ops Technology as of the execution date of this Agreement. 17. THIRD PARTY INTERACTIONS During Use of the Service, Santa Ana may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Santa Ana and the applicable Third Party. Shield Ops and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Santa Ana and any such Third Party. Shield Ops does not endorse any sites on the Internet that may be linked through the Service. To the extent that Shield Ops provides any links to sites on the Internet to Santa Ana through the Service any such link shall be provided only as a matter of convenience, and in no event shall Shield Ops or its licensors be responsible for any content, products, or other materials on or available from such sites. Shield Ops provides the Service to Santa Ana pursuant to the terms and conditions of this Agreement. Santa Ana recognizes, however, that certain Third Party providers of ancillary software, hardware, or services may require Santa Ana's agreement to additional or different license or other terms prior to Santa Ana's use of or access to such software, hardware or services. Version 0930'1 O ? Q 18. VIRUSES Each Party will use Commercially Reasonable efforts to prevent Viruses from being coded or introduced into the computer systems used to provide or Use the Services. In the event a Virus is found to have been coded or introduced into the computer systems utilized in connection with the Services delivered by Shield Ops, Shield Ops will use Commercially Reasonable efforts to eliminate the effects of the virus at Shield Ops' expense. If Santa Ana is found to have introduced a Virus into the computer systems utilized in connection with the Services, Santa Ana will pay Shield Ops its standard hourly rates to eliminate the effects of the Virus. 19. NO AGENCY It is agreed that the relationship of Shield Ops to Santa Ana in the performance of this Agreement is as an independent contractor and that neither Shield Ops nor Santa Ana is an agent of the other Party. Each Party agrees to refrain from representing itself as being the agent of the other Party in performing or acting pursuant to this Agreement. Neither Party shall have the power or authority to bind or otherwise commit the other Party with respect to this Agreement and shall not attempt to do so. 20. REPRESENTATIONS AND WARRANTIES Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such Party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms. Shield Ops represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Shield Ops help documentation under normal use and circumstances. 21. MUTUAL INDEMNIFICATION Santa Ana shall indemnify and hold Shield Ops, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Santa Ana Data infringes the rights of, or has caused harm to, a Third Party; (ii) a claim, which if true, would constitute a violation by Santa Ana of Santa Ana's representations and warranties; or (iii) a claim arising from the breach by Santa Ana or SAPD Employees of this Agreement, provided in any such case that Shield Ops (a) gives written notice of the claim promptly to Santa Ana; (b) gives Santa Ana sole control of the defense and settlement of the claim (provided that Santa Ana may not settle or defend any claim unless Santa Ana unconditionally releases Shield Ops of all liability and such settlement does not affect Shield Ops' business or Service); (c) provides to Santa Ana all available information and reasonable assistance; and (d) has not compromised or settled such claim. Shield Ops shall indemnify and hold Santa Ana and Santa Ana's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and Version 09301 O 9 'I agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Shield Ops of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Shield Ops; provided that Santa Ana (a) promptly give written notice of the claim to Shield Ops; (b) give Shield Ops sole control of the defense and settlement of the claim (provided that Shield Ops may not settle or defend any claim unless it unconditionally releases Santa Ana of all liability); (c) provides to Shield Ops all available information and reasonable assistance; and (d) have not compromised or settled such claim. Shield Ops shall have no indemnification obligation, and Santa Ana shall indemnify Shield Ops pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Santa Ana's products, service, hardware or business process(s). 22. DISCLAIMER OF WARRANTIES SHIELD OPS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SHIELD OPS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET SANTA ANA'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SANTA ANA THROUGH THE SERVICE WILL MEET SANTA ANA'S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO SANTA ANA STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SHIELD OPS AND ITS LICENSORS. 23. INTERNET DELAYS SHIELD OPS'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SHIELD OPS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Version 0930'1 O ? 2 24. LIMITATION OF LIABILITY SHIELD OPS' MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE GREATER OF FEES PAID BY SANTA ANA DURING THE TWO-YEAR PERIOD PRECEDING NOTICE TO SHIELD OPS OF SANTA ANA'S LOSS OR THE SUM OF FIFTY THOUSAND DOLLARS, WHICHEVER IS GREATER. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 25. CONSEQUENTIAL DAMAGES WAIVER IN NO EVENT SHALL SHIELD OPS BE LIABLE TO SANTA ANA OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY SANTA ANA OR SUCH THIRD PARTY CAUSED DIRECTLY OR INDIRECTLY BY ANY BREACH OF THIS LICENSE AGREEMENT OR THE PROVISION OF ANY LICENSED SOFTWARE, MATERIALS OR SERVICES PURSUANT TO THIS LICENSE AGREEMENT, INCLUDING ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY LOSS OF OR INJURY TO EARNINGS, PROFITS OR GOODWILL, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR STRICT PRODUCT LIABILITY). THIS LIMITATION SHALL APPLY EVEN IF SHIELD OPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 26. TERM AND TERMINATION This License Agreement shall be effective as of the Effective Date and shall continue for the Term unless earlier terminated. Either Party may terminate this Agreement for the material breach of any term by the other Party if such material breach remains uncured for thirty (30) days after Notice of such breach from the non-breaching party, which Notice shall describe in reasonable detail the nature of the breach, or immediately if such material breach was the subject of a prior Notice of breach. Such termination shall be in addition to any other remedies that may be available to the non-breaching Party. Upon termination of this Agreement, Santa Ana shall immediately cease using the Service and shall return or destroy all Documentation for the Service and any copies thereof. Santa Ana shall deliver to Shield Ops within fifteen (15) days of the date of such termination certification in writing that the Documentation and all copies thereof in any form have either been returned to Shield Ops or properly destroyed. version os3o"lo 1 3 The rights and obligations contained in Sections 3 ("Intellectual Property Ownership"), 1O ("Shield Ops' Right of Publicity"), 11 ("Benchmarking"), 21 ("Mutual Indemnification"), 22 ("Disclaimer of Warranties"), 24 ("Limitation of Liability"), 25 ("Consequential Damages Waiver"), 26 ("Term and Termination") and Sections 29-35 shall survive any expiration or termination of this License Agreement. 27. ASSIGNMENT This Agreement may not be assigned or transferred by Santa Ana. This License Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and representatives. Shield Ops may assign this Agreement (i) to any entity in which Shield Ops has a greater than fifty-percent (50%) equity ownership interest or of which Shield Ops has voting control, (ii) to any entity that buys fifty-percent (50%) or more of Shield Ops' stock or all or substantially all of Shield Ops' assets, or (iii) as part of a merger, reorganization or re-incorporation. 28. FORCE MAJEURE Neither Party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or other similar causes beyond its control. In the event of any such delay, any applicable period of time for action by said Party may be deferred for a period of time equal to the time of such delay, except that a Party's failure to make any payment when due hereunder shall not be so excused. 29. NO WAIVER No omission or delay by either Party at any time to enforce or exercise any right or remedy or to require performance of any terms of this Agreement shall be construed as a waiver of any right or remedy to which such Party is otherwise entitled nor shall it affect the right of such Party to require performance thereafter. 30. NOTICE All notices, demands, or other communications herein provided to be given or that may be given by any Party to the other shall be deemed to have been duly given only when made in writing and delivered in parson or, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, as follows: Notices to Shield Ops: Mr. Roy L. Anderson Shield Ops, Inc. 3541 Ocean View Blvd. Glendale, CA 91208 Notices to Santa Ana: City Attorney's Office 20 Civic Center Plaza, M-29 Santa Ana, CA 92701 version 0930'10 14 or to such address as the parties may provide to each other in writing from time to time under this Section. 31. ENTIRE AGREEMENT This Agreement sets out the entire agreement between the Parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. This Agreement may not be altered or modified, except by written amendment which expressly.. refers to this Agreement and which is duly executed by authorized representatives of both Parties. 32. AMBIGUITIES The Parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such. agreement shall not apply to the terms and conditions of this Agreement. 33. ENFORCEABILITY Any provision of this Agreement held to be invalid under applicable law shall not render this Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. 34. GOVERNING LAW This Agreement shall be governed and enforced according to the laws of the State of California in the United States of America without regard to any principles regarding conflicts of laws that would result in the application of the laws of any other jurisdiction. 35. DISPUTE RESOLUTION Any controversy or claim arising out of this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules of American Arbitration Association in the County of Los Angeles, California, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. In such arbitration, the arbitrator shall be selected mutually 'by the Parties. During such arbitration, each Party shall have the right to engage in discovery pursuant to the statutes of the State of California, and the arbitrator(s) is/are vested with all rights held by a judge of the Superior Court of the State of California with respect to discovery, including rights to compel discovery and award sanctions. During such arbitration, each Party shall retain the right to seek appropriate provisional remedies from any court of competent jurisdiction, including but not limited to injunctions and attachments, and Shield Ops and Santa Ana hereby irrevocably agree that 'the United States District Court for the Central District of California and/or the California'. Superior Court for the County of Los Angeles shall have exclusive jurisdiction and venue over any dispute between the parties relating in any way to this Agreement. In the event that there is any dispute between the Parties, the prevailing Party shall be entitled to recover its reasonable attorney's fees and costs as an additional element of cost or damage. Version 0930'1 O 15 Shield Ops and Santa Ana hereby waive the right to a trial by jury in any action, counterclaim, proceeding or litigation arising out of, under or in connection with, or related to, the subject matter of this Agreement. This waiver is knowingly, intentionally, and voluntarily made by Shield Ops and 'Santa Ana and each Party acknowledges that neither the other Party nor any person acting on behalf of such other Party has made any representations of fact to induce this, waiver of trial by jury or in any way to modify or nullify its effect. Shield Ops and Santa Ana further acknowledge that they have been represented (or have had the opportunity to be represented) in the negotiation and execution of this Agreement and in the making of this waiver by legal counsel, selected of their own free will, and that they have ',had the opportunity to discuss this waiver with counsel 36. EXECUTION OF AGREEMENT This Agreement may be executed' in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Electronic or facsimile signatures shall have the sarrne effect as original, ink signatures. In WITNESS WHEREOF, this Agreement is executed effective as of the date on which this Agreement was last executed below. ATTEST CITY OF NTA NA `??? ice, _? ?- MARIA D. HUIZA DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: Joseph Straka Interim City VAttorney ?? 7 sy: Melissa Crosthwaite Deputy City Attorney M ENDED FOR APPROVAL: PAUL WALTERS Chief of Police S D IN c Roy n Co o Secretary a eneral Counsel Version 0930'10 16