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HomeMy WebLinkAboutMILLER MENDEL, INC.MILLER MENDEL, INC. MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT A-2017-151 This Master Software License and Services Agreement (this "Agreement") is made and entered into on June 21, 2017 ("Effective Date") between Miller Mendel, Inc., a Washington corporation with an address at 1425 Broadway, #430, Seattle, WA 98122 ("MMI"), and the City of Santa Ana, by and through the Santa Ana Police Department, with an address at 60 Civic Center Plaza, Santa Ana, CA 92701 ("Client"). MMI and Client may each be referred to individually as a "Party" or collectively as the "Parties." ^ BACKGROUND r A. MMI is a technology company with a principal market in offering software -as -a -service solutions La to governmental and private entities; u, B. Client desires to license and use MMI's software system known as the "eSOPH" or "electronic LU r 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 z o manage pre -employment background investigations of persons who apply for employment with Client. rsx.a rtw c uj a 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 and meets the criteria set forth in Section 2.2. 1.5 "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. 1.6 "Client Data" means all data and other information uploaded or transmitted to or keyed into the eSOPH System by Client or an Applicant. 1.7 "Client Specific Terms" means the terms and conditions specific to Client attached hereto as Exhibit A. 1.8 "Entry" has the meaning ascribed to it in Section 2.3.2. 1.9 "eSOPHSystem" 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 1 OF 20 Version: April 12, 2017 MILLER MENDEL, INC. 1.10 "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. 1.11 "Initial Contract Term" means the period of time commencing on the Setup Date and expiring after the number of License Terms described as the "Contract Term" stated in Exhibit A. For example, if Exhibit A specifies a contract term of three (3) years, then the Initial Contract Term would expire on the third anniversary of the Setup Date (which would also be the same day that the third (31) License Term expires). 1.12 "License Term" means the agreed period during which this Agreement is in effect determined as follows. The Initial Contract Term shall commence on the Setup Date and expire on the third anniversary thereof. Each successive renewal period thereafter shall be referred to herein as a "Renewal Term". The Initial Contract Term and/or any Renewal Terms shall define a "License Term". 1.13 "Primary Administrative User" means an Authorized User of Client's choosing 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. 1.14 "Renewal Term" has the meaning given to it in Section 4.2. 1.15 "Security Incident" means an unauthorized thud 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. 1.16 "Services" means, collectively, the provision of the eSOPH System in accordance with the SLA, related professional services, and any other services to be provided by MMI to Client pursuant to this Agreement. 1.17 "Service Level Agreement" or "SLA" means the service level obligations of MMI, and any requirements of Client, related to the access, use, operation, availability and maintenance of the eSOPH System, as set forth in the attached Exhibit B. 1.18 "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 provided in Exhibit A. 1.19 "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. 2. eSOPH SYSTEM LICENSE 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 Term in accordance with the terms and conditions of this Agreement. MMI will provide the eSOPH System to Client in accordance with the Service Level Agreement attached hereto as Exhibit B, as may be updated from time to time by MMI. 2.2 Authorized User Designation. Client shall designate all current Primary Administrative Users of the eSOPII System on the attached Exhibit A. A current Primary Administrative User may grant access to additional Authorized Users. Client shall ensure its Authorized Users' compliance with the terms of this MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 2 OF 20 Version: April 12, 2017 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. 2.3 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, MMI will 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. Client specific set-up Services may be described in the Client Specific Terms attached hereto as Exhibit A. 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 have qualified legal counsel draft a 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 a 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 MNI 's hourly rate stated in Exhibit A, 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 of this MSLA. 2.5 Acknowledgment of Ownership and Limited License Rights. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 3 OF 20 Version: April 12, 2017 MILLER MENDEL, INC. 2.5.1 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, 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. 2.5.2 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 Primary Administrative Users. Client must designate at least one Primary Administrative Users in writing to MMI, and Client may designate an additional number of Primary Administrative Users to be active at a time for a fee, as set forth in Exhibit A. Per the SLA attached hereto as Exhibit B. Primary Administrative Users are the only representatives of Client authorized to 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 and accurate list of the designated Primary Administrative User(s) with MMI, and must notify MMI within 48 hours of any change in a Primary Administrative User. Client shall be responsible for training replacements for any of Client's designated Primary Administrative User positions. If Client requests MMI provide replacement training, such training shall be provided at the rates for training set forth in Exhibit A. Per the SLA attached hereto as Exhibit B, Client shall pay MMI's then standard hourly rate for support and assistance provided to Primary Administrative User's necessitated from Client's failure to designate a properly trained person for a Primary Administrative User position. 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. MMI will make every effort to assure uptime in accordance with the Service Level Agreement (SLA) attached hereto as Exhibit B. 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, fields, and questionnaires used to collect such information are within the exclusive control of Client and its Authorized Users. Any default or sample fields, forms, or questionnaires 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. 3. FEES AND PAYMENT. 3.1 License Fees. Client will pay to MMI the set -tip fee and periodic license fees set forth in the "Client Specific Terms" attached to this Agreement at Exhibit A. All payments made to MMI by Client will be in USD. The total value of this contract for the three year period shall not exceed $50,000.00 USD. 3.2 Invoices. Invoices shall be issued in accordance with the payment due dates set forth this Agreement and Exhibit A. All taxes, 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 or invoice. Unless otherwise provided MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 4 OF 20 Version: April 12, 2017 MILLER MENDEL, INC. in this Agreement or Exhibit A, Client will pay all undisputed invoices related to this Agreement within thirty (30) days of the date of receipt thereof. 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 reason for the dispute and cite all term(s) of the Agreement that validates Client's cause for dispute. MMI and Client will attempt in good faith to resolve any dispute. If the Parties agree Client will pay any disputed amounts, MMI will re -invoice that amount and Client will pay all such amounts to MMI upon receipt of the, invoice. 3.4 Interest on past due amounts. MMI may charge interest on any overdue invoices in the amount of 18% per annum or the maximum amount permitted by applicable law, whichever is less. 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 be 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: (a) cease to perform any and all of its obligations under this Agreement; (b) if applicable, suspend or terminate any and all of Client's access to the eSOPH System, including access of its Authorized Users and Applicants, in whole or in part; and/or (c) exercise other remedies available to MMI. 4. TERM AND TERMINATION 4.1 Term. The term of this Agreement (the "Term") will commence as of the Effective Date and will continue until expiration on June 20, 2020, subject to earlier termination in accordance with Section 4.3. 4.2 Renewal.. At MMI's sole discretion, Client may renew this Agreement for additional periods (each, a "Renewal Term") by delivering written notice to MMI of Client's desire to renew. Fees and pricing for a Renewal Term shall be at MMI's then -standard rates. 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 Initial Contract Term or Renewal Term, as the case may be. 4.3.2 Either party may terminate this Agreement prior to its expiration without cause upon thirty (30) days prior written notice to the other party. (a) If Client terminates this Agreement prior to expiration of the Initial Contract Term or the then -current Renewal Term without cause, all fees for the remainder of the Initial Contract Term or then -current Renewal Term shall become due and payable, and Client shall pay all such fees in addition to any balance already outstanding within thirty (30) days after termination. (b) If MMI terminates this Agreement prior to expiration of the Initial Contract Term or the then -current 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 with 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 5 OF20 Version: April 12, 2017 MILLER 1MENDEL, 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; (e) 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 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 Party'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, MMI will not issue any refunds to Client for payments made pursuant to Section 3 of this Agreement, and Client is responsible for paying in full all undisputed invoices upon termination. Client may continue to access the information for previously entered Applicants in the eSOPH System for a period of thirty (30) calendar days. MMI reserves the right to charge for data storage fees for storage of Client's Data after termination, provided Client requests MMI retain the data on the eSOPH System. The amount billed for data storage shall be consistent with the amount(s) listed in Exhibit A. If Client does not pay any such data storage fee(s) within thirty (30) days after each due date set by MMI, MMI may, at MMI's sole discretion, permanently delete Client's Data, revoke Client's access to the eSOPH System, or both. 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 MMI and also without cause. 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, 2.4, 2.5, 3-7, and 10-12. 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 6 OF 20 Version: April 12, 2017 MILLER MENDEL. INC. 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 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 eSOPH System by other MMI client(s). I£ 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 eSOPH System, 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 the Client's Primary Administrative User or representative listed in Exhibit A to this Agreement, via telephone, and also 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 M 41'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 eSOPH 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 term 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. 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 MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 7 OF 20 Version: April 12, 2017 MILLER MENDEL, INC 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 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 Party 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 the state public records act, 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 and the SLA. 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 HIPAA, and CJIS standards, as well as any other standards stated in MMI's eSOPH Security Overview documentation. 5.14 Backups. 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 (US). Backup records that are older than one calendar week are automatically purged from MMI's production server. At least three months of backup copies are stored remotely and are automatically purged after three months. MMI uses proprietary software to monitor the automated tasks of Microsoft SQL. 5.15 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 ("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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 8 OF 20 Version. April 12, 2017 MILLER MENDEL, INC. Client may not commit any act or omission that causes MMI to violate 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 farther acknowledges and agrees that Client is solely responsible for the security of Cardholder Information that it possesses or controls. 5.16 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; or (h) Client's declining to implement two -factor authentication as described in Section 5.2. 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 -party 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 MML 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 N MI'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 Service Level Agreement attached hereto at Exhibit B. 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 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 terms of this Agreement; and MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 9 OF 20 Version: April 12, 2017 INC. 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. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY OTHER PERSON IN ANY WAY RELATED TO THE AGREEMENT, THE PERFORMANCE OF ANY WORK PURSUANT TO THIS AGREEMENT, OR USE OF ANY SYSTEM, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF, OR COULD HAVE REASONABLY FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. 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. Neither Party shall be liable to the other Party for any claim by a third party, by contribution or otherwise, except to the extent of the respective Party's relative negligence with respect to the claim(s), whether by act or omission. 8. NOTIFICATION OF THIRD 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 use or misappropriate any third -party intellectual property rights; or (e) 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 10 OF 20 Version: April 12,2017 MILLER MENDEL, INC. 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 address in the preamble of this Agreement or as otherwise specified in Exhibit A. 12. GENERAL TERMS AND CONDITIONS. 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, 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, nudes, 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 in, as applied to contracts performed therein but without reference to its choice of 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 any exhibits attached hereto contains the entire 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 MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 11 OF 20 Version: April 12, 2017 MILLER MENDEL, INC. terms and conditions of this Agreement will control. No course of dealing or usage of trade may be involved 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective duly authorized representatives. Miller Mendel, Inc. Name: Tvler Miller Title: CEO Date: May 18, 2017 For Miller Mendel, Inc., copy of Notice(s) to: Mark Beatty Rylander and Associates 406 W. 1261 St. Vancouver, WA 98660 MASTER SOFTWARE LICENSE & SERVICES AGREEMENT Version. April 12, 2017 City of Santa Ana By: � Name: Cynthia Kurtz Title: City Manager Date: For Client, copy of Notice(s) to: Chief's Office Santa Ana Police Department 60 Civic Center Plaza Santa Ana, CA 92701 PAGE 12 OF 20 MILLER i1Ic;NnEl., INCH CITY OF SANTA ANA: ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO o C4TARABOGLOSIAN y B Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: -- DAVAB ENTIN Acting Chief of Police MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PACE 13 OF 20 Version: April 12, 2017 INC. Exhibit A CONTRACT TERM, PRICING AND OTHER CLIENT SPECIFIC TERMS Unless otherwise defined herein, all capitalized terms in this Exhibit A shall have the same meaning given to them in the Master Software License and Services Agreement (the "Agreement") to which these terms are attached. 1) CLIENT NAME AND PRIMARY ADMINISTRATIVE USER. Name: Santa Ana Police Department Admin: Laura Franks Email: lfranksgsanta-ana.org Phone: (719) 245-8036 2) LICENSE TERM(S), FEES, INCLUDED DATA STORAGE FOR THE TERM. License Term(s) Fee for Entries Fee for Support Fee for Setup Data Storage June 21, 2017 — June 20, 2018 $12,757.50 for 315 Entries $1,914.00 N/A 4.7 GB June 21, 2018 — June 20, 2019 TBD TBD TBD TBD June 21, 2019 — June 20, 2020 TBD TBD TBD TBD For the License Terms listed above, the total value shall not exceed $50,000.00 USD. 2.1 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 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. 2.2 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. It's agreed additional onsite training will be billed at a minimum of 8 hours, plus travel, meal and lodging expenses. Requests must be received by MMI in writing from the User listed above in Section 1, his or her successor, or higher supervisor. MMI reserves the right to charge $200.00 USD per hour for all off-site/remote training, with a one hour minimum. 2.3 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 the User listed above in Section 1, his or her successor, or higher supervisor. 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. 2.4 Entries. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 14 OF 20 Version: April 12, 2017 MILLER MENDEL, INC. (i) Client will be invoiced for all Entries in the current License Term on the first day of training and setup. Client agrees to pay the invoice in accordance with Section 3 of the main Agreement. Client may purchase additional Entries one time during each License Term without incurring an administrative fee, however Entries added thereafter during a given License Term will automatically incur an additional twenty percent (20%) administrative fee. If the purchase is for 300 or more Entries, the administrative fee will be waived. (ii) Client may carry over the unused Entries from the previous License Term to the following License Term, 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, prior to the last day of the current License Term. There may be no gap in License Terms. No data storage credit will be carried over with unused Entries. 2.5 Data Storage Overage. At no additional fee for the current License Term, Client shall be provided with the data storage amount set forth in Section 2 above ("Included Data Storage"). Data storage space used in the current License Term in excess of this amount will be charged at the rate of $15.00 gigabyte (GB) per month. Billing intervals for Data storage will be done 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 database, only; space used for backups is not invoiced. Due to time zone differences, data usage calculations may vary by up to three hours. 2.6 Fee for Support. The fee paid for support listed above in Section 2 shall obligate MMI only to provide support as defined in Exhibit B to the Primary Administrative User listed in Section 1. If client wishes designate more than one Primary Administrative User to be active concurrently, then Client shall pay an additional 10% of the total sum of the fees listed above in Section 2, per additional Primary Administrative User position, per License Term. 2.7 Timing oflnvoices. Fees for the initial training and setup shall be invoiced upon the parties' execution of the Master Agreement. Annual fees (e.g., for Entries and any additional licensing, support, or maintenance fees) will be invoiced on or up to thirty (30) days prior to the beginning of each License Term. All other professional services fees (e.g., for additional training or corrective services) may be invoiced either in advance or after such services are performed or provided. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 15 OF 20 Version: April 12, 2017 MILLER Exhibit B SERVICE LEVEL AGREEMENT This eSOPH Service Level Agreement ("SLA") is part of a Master Software License and Services Agreement (the "Master Agreement") by and between Miller Mendel, Inc. ("MMI") and the entity identified as a Client therein ("Client"). 1. DEFINITIONS. Except for the terms defined below, all initially capitalized terms used in this SLA will have the meanings described within the body of this SLA. Capitalized terms used but not defined herein have the meanings given to them in the Master Agreement. As used herein, the following terms have the following meanings: "Available" or "Availability" 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. "Defect" means a failure of eSOPH System to substantially conform to the functional specifications set forth in the Master Agreement or the Documentation. "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. "Service Credit" means a credit or refund issued pursuant to Section 3.2 of this SLA for failure to meet the Availability standards set forth in this SLA. "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 1 year 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 of this SLA. "Support Request" means a written request for resolution of a Defect submitted by Client to MMI. "Support Services" means the support and maintenance services described in Section 2 of this SLA. 2. SUPPORT SERVICES 2.1 Scope of Support Services. MMI shall provide the following services (the "Support Services") with respect to the eSOPH System: 2.11 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 SLA. 2.1.2 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 16 OP 20 Version: April 12, 2017 MILLER MENDEL, INC. 2.2 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 operating systems, ffrewalls, or networking components; (b) Client's ongoing training needs; (c) version upgrades of 31 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 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 4 below. 2.3 MMI Support Hours. MMI will provide email support between the hours of 09:00 and 17:00 Pacific Time, Monday through Friday, excluding holidays. 2.4 Support Request Requirements. Client must comply with all of the following requirements as a condition to receiving Sport Services: 2.4.1 Attempted Resolution by Primary Administrative User(s). Client's Primary Administrative User shall act as the first line of support to troubleshoot any Defects experienced by Applicants and Authorized Users. Only when the Primary Administrative User cannot resolve the Defect should a Support Request be submitted to MML If a Defect is reported to MMI that the Primary 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, in its sole discretion, (a) refer such Defect back to the Primary Administrative User for resolution and/or (b) charge Client MMI's then -standard hourly rates for MMI's resolution of such Defect. A minimum of one hour will be invoiced, regardless of time actually needed. 2.4.2 Submission by Primary Administrative Users. All Support Requests must be submitted by and through a Primary Administrative User; MMI is not required to respond to or resolve any Support Request that is submitted by a person other than a Primary Administrative User. 2.4.3 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 2.6 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 empiereing 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 17 OE 20 Version. April 12, 2017 MILLER MENDEL, INC. 2.4.4 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. 2.4.5 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. 2.5 Response Times. MMI shall provide an initial response acknowledging each complete and validly submitted Support Request no later than 1 business day after it is received. 2.6 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 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 the table below, 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 and Definitions 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. 3. AVAILABILITY STANDARDS MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 18 OF 20 Version: April 12, 2017 MILLER 3.1 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"). 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 log -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 3.2 below. 3.2 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 Section 4 below. 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 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. 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. Availability is measured by the following formula: x= (n - y) * 100 / n "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, excluding Scheduled Downtime and downtime caused by the events set forth in Section 4 (Exclusions) below in the given calendar month. Availability Percentage of Monthly Software Fees Credited > 99.0% 0% 95.0%-<99.5% 3% 90.0%-<95.0% 5% 80.0% - < 90.0% 10% < 80.0% 15% 4. 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: (a) Client's negligence, abuse, misapplication, miscontiguration, 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; (b) 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 MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 19 OF 20 Version: April 12, 2017 MILLER MENDEL. INC. (c) 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 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. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 20 OF 20 Version: April 12, 2017 667979 Miller Mendel, Inc. Certificate of Insurance (page 1 of 1) 01/03/2017 03:59:25 PM A� & CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYYYY) /3/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorse ment(s). PRODUCER Techlnsurance 000 1101 Central Expy, South, Suite 250 •O.TechInsurance Allen, TX75013 CONTACT NAME: PHg00-068-7020 ✓ FAX ONE (877)826-9067 AIC No E-MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC# INSURER A: Beazley Insurance Company Inc. 37540 INSURED/ INSURERS: Sentinel Insurance Company, Limited 11000 INSURER C: Miller Mendel, Inc. ✓ 1425 Broadway Ste 430 Seattle, WA 98122 INSURER 0 INSURER E: INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INES LT, TYPE OF INSURANCE ADDLSUBR POLICYNUMBER POLICY EFF MMIDDIYWY POLICY EXP MMIDDM'YY LIMITS MMERCIALGENERAL LIABILITY CLAIMS -MADE ❑✓ OCCUR/ EACH OCCURRENCE $ 1,000,000 NT DAMAGE TOREoccurrence PREMISES Ea $ i,000,000 ✓ MED ESP (Any one person) $ 10,000 B STOP GAP (see below for limits) Yes 46SBMUF4112 12/26/2016 12/26/2017 PERSONAL &ADV INJURY $ 11000,000 AGGREGATE LIM IT APPLIES PER: POLICY D JECT1:1 LOG GENERAL AGGREGATE $2,000,000 GENT ✓ PRODUCTS - COMP/OP AGO $ 2,000,000 $ OTHER: AUTOMOBILE LIABILITY CEa OMBINED SINGLE LIMIT accident $ 1 000,000 71ANVAUTO BODILY INJURY (Per person) $ ALL OWNED SCHEDULED AUTOS AUTOS 46SBMUF4112 12126/2016 12/28/20tt BODILY INJURY Per accident ( ) $ B ✓ HIRED AUTOS ✓ NON -OWNED AUTOS Yes PftOPERTV DAMAGE Peracciden $ UMBRELLA LIAR H OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION$ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETORIPARTNERIEXECUTIVE OFFICER/MEMSER EXCLUDED? (Mandatory In NH) If yes, describe under STOPGAP DESCRIPTION OF OPERATIONS below NIA 46SBMUF4112 (STOPGAP) 122fi/201fi 12/26/2017 PER H. STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 ✓ E.L. DISEASE-EAEMPLOVE $ 1,000,000 I E.L. DISEASE -POLICY LIMIT $ 1,000,000 A Professional Liability(Errors and Omissions) V177W150201 12/23/2016 12/26/2017 $1,000,000/$1,000, 000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is req ulred) / City of Santa Ana is named as Additional Insured as their interests may appear in regards to general liability and automobile liability. I City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESS NTATIV✓/E {\) I n 19RR-2014 All rinhfa r... —A ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD 667979 Miller Mendel, Inc. CertlSWe Of Inswence 12118t2019 614:47 PM A� �® CERTIFICATE OF LIABILITY INSURANCE ° iy1812019 ) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Wan ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsements . PRODUCER oee M eNTechlnsurance CONTACT NAME: PHONE Ell, (800)668-7020 FA/c ryo; 877-526-9067 -echlnsurance E-MAIL riD ss; INSURE AFFORDING COVERAGE NAIC0 30 N. LaSalle, 25th Floor, Chicago, IL 60602 INSURERA: LI d's Syndicate 2623 Furlong Limited INSURED INSURER a: Sentinel Insurance Company. Limited flow INSURER C : Hartford M to OD914 Miller Mendel, Inc. 1425 Broadway Ste 430, Seattle. WA, 98122 INSURER D: INSURER E : INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1N&i LTRPOLICY TYPE INSURANCE AWL' BR POUCYEFF POUCYEXP NUMBER (MMIDDITYYYf fMWOONYYA3LIMITS B 1/ COMMERCIAL GENERAL LIABILITY CLAIMS -MADE 1 OCCUR STOP GAP (See below W limits) Yea 46SBMUF4112 1ZJ262019 12R&2020 EACH OCCURRENCE S 1.000.000 PRE ISES Ea oca S 1.000.000 NED EXP (Any an pawn) S 10,000 PERSONAL SADVINJURY S1•0•0 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY 7] JJEC LOC OTHER. GENERALAGGREGATE S2•000•ODD PRODUCTS S 2.000,000 S B LE UABIUm" UTO WNED SCHEDULED S�AUTOS AUTOS NON-0WNED _ AUTOS FA Y« ISSBMUF4112 122B2019 12262020 -01IWrr Ea am eta I OTE U S 1.000.00o BODILY INJURY(PW PMson) S BODILY INJURY(PW accdw) S PRO ERTY DAMAGE S S B ./ UMBRELLA LIAS I V EXCESS LYLE I OCCUR CWMS-MADE Ym 46SBMUF4112 1b2912f20 EACH OCCURRENCE $4,000.000 AGGREGATE S 4,000,OD0 OEO I I RETENTIONS S WORKERS COMPENSATION ANDEMPLAYERS'LIABILDY YIN C ANY PROPRIETORIPARTNER/MCUTIVE OFFICERIMEMBER EXCLUDEDT No (Ma"atory In NH) OescnOeder un IDESCRIPTION OF OPERATIONS 0.1. NIA 46WECAA9PY1 11202019 11202020 TA ERA E.L. EACH ACCIDENT $ TDOD000 EL DISEASE - EA EMPLOYEE S1,000.D00 E.L. DISEASE - POLICY UNIT S 1.0W000 A ' Professinal UatNlrty(Enas arW Omissions) V1=1e0501 M7612019 12J2&2020 Ocwn*nWAgpregNe $4.000.0001 S4,00D.000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD IN. Additional Ranaras ScbaeYN, may M Atbehee K non N"" Is required) City of Santa Ana is named as Additional Insured as their interests may appear in regards to general liability and automobile liability. ULK I IFIUA I t KULUtK %oANL.CLLA I IUN REVIEWED & APPROVED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Santa Ana THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 Civic Center Plaza y Ris MANAGEMENT DIVISION ACCORDANCE WITH THE POLICY PROVISIONS. Santa Ana, CA 92701 17 2020 N AUTHORIZED REPRESENTATIVE �—�) ©1988.2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD Beazley MediaTech THIS POLICY'S LIABILITY INSURING AGREEMENTS PROVIDE COVERAGE ON A CLAIMS MADE AND REPORTED BASIS AND APPLY ONLY TO CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD OR THE OPTIONAL EXTENSION PERIOD (IF APPLICABLE) AND REPORTED TO THE UNDERWRITERS IN ACCORDANCE WITH THE TERMS OF THIS POLICY. AMOUNTS INCURRED AS CLAIMS EXPENSES UNDER THIS POLICY WILL REDUCE AND MAY EXHAUST THE LIMIT OF LIABILITY AND ARE SUBJECT TO RETENTIONS. These Declarations along with the statements contained in the information and materials provided to the Underwriters in connection with the underwriting and issuance of this Policy, and the Policy with endorsements shall constitute the contract between the Insureds and the Underwriters. Insurer/Underwriter: Authority Reference Number: Named Insured: Named Insured Address: Notice of Claim, Loss or Circumstance: Administrative Notice Syndicate 2623/623 at Lloyd's. B6012BUSANMSL1901 Miller Mendel, Inc. 1425 Broadway Suite 430 Seattle. WA 98122 Beazley Group Attn: Cyber & Tech Claims Group 45 Rockefeller Plaza, 16th floor New York, NY 10111 cyber&techclaims@beazley.com Beazley USA Services, Inc. 30 Batterson Park Road Farmington, CT 06032 Tel: (860) 677-3700 Fax: (860) 679-0247 VED & APPROVED MAry AGEMEM DIVISION �/tAN 17 2020 F00730 022019 ed. SAMANTHA M. LAMBERT Date Issued: 18-Dec-2019 12:06:50 PM Page 1 of 4 Policy Number: Policy Form: Policy Period: Retroactive Date: Continuity Date: Optional Extension Period: Optional Extension Premium Waiting Period: Premium: F00730 022019 ed. Date Issued: 18-Dec-2019 12:06:50 PM W29133F190101 Beazley MediaTech (F00731 022019 ed.) From:26-Dec-2019 To:26-Dec-2020 Both at 12:01 AM Local Time at the Named Insured Address 26-Dec-2012 26-Dec-2014 12 Months 100% of the Annual Policy Premium 8 Hours REVIEWED & APPROVED BY ISkMANAqEMENT DIVISION JAN 17 2020 S.AMANTHA M. LAMBERT Page 2 of 4 COVERAGE SCHEDULE (Currency in USD) Limit Retention Each Claim Limit of Liability: Media, Tech, Data & Network Liability: $4,000,000 Policy Aggregate Limit of Liability: $4,000,000 Additional Defense Limit: Not Included Media, Tech, Data & Network Liability Tech & Professional Services: $4,000,000 each Claim $5,000 Tech Product: $4,000,000 each Claim $5,000 Media: $4,000,000 each Claim $5,000 Data & Network: $4,000,000 each Claim $5,000 Breach Response Breach Response Costs: $4,000,000 each incident $0 Regulatory Defense & Penalties Regulatory Defense & Penalties: $4,000,000 each Claim $5,000 Payment Card Liabilities & Costs Payment Card Liabilities & Costs: $4,000,000 each Claim $5.000 First Part Data & Network Loss Business Interruption Loss: Resulting from Security Breach: $4,000.000 each incident $5,000 Resulting from System Failure: $4,000,000 each incident $5,000 Dependent Business Loss: Resulting from Dependent Security Breach: $100,000 each incident $5,000 Resulting from Dependent System Failure: $100,000 each incident $5,000 Cyber Extortion Loss: $4,000,000 each incident $1,000 Data Recovery Costs: $4,000,000 each incident $5,000 eCrime Fraudulent Instruction: $250,000 each loss $5,000 Funds Transfer Fraud: $250,000 each loss $5,000 Telephone Fraud: $250,000 each loss $5,000 Criminal Reward Criminal Reward: $50,000 F00730 022019 ed. Date Issued: 18-Dec-2019 12:06:50 PM By R1 WED M N &EMEENT Diivis oD J N 17 2020 SAMANTHA M. LAMBERT Page 3 of 4 1. BSLMUNMA2868 Lloyd's Certificate - No policy language 2. SCHEDULE2019 Lloyd's Security Schedule 2019 3. E12287 022019 ad. Asbestos, Pollution, and Contamination Exclusion Endorsement 4. E10596 112017 ed. Choice of Law and Service of Suit 5. NMA1256 Nuclear Incident Exclusion Clause -Liability -Direct (Broad) (U.S.A.) 6. NMA1477 Radioactive Contamination Exclusion Clause -Liability -Direct (U.S.A.) 7. E02804 032011 ed. Sanction Limitation and Exclusion Clause 8. E12254 022019 ed. War and Civil War Exclusion 9. E12228 022019 ad. Aggregate/Maintenance Retention % E12266 022019 ed. Amend Definition of Fraudulent Instruction 11. E13101 082019 ed. California Consumer Privacy Act Endorsement 12. E12289 022019 ed. Computer Hardware Replacement Cost 13. E12290 022019 ed. Contingent Bodily Injury With Sublimit Endorsement 14. E12864 042019 ed. Crisis Management Expense Coverage 15. E12972 052019 ad. CryptoJacking Endorsement 16. E12269 022019 ad. GDPR Cyber Endorsement 17. E12293 022019 ad. Invoice Manipulation Coverage 18. E12716 022019 ed. Post Breach Remedial Services Endorsement 19. E13040 062019 ed. Reputational Loss 20. E12267 022019 ed. Amended Retroactive Date for Excess Limit of Liability Dated: 18-Dec-2019 At: 30 Batterson Park Road Farmington Connecticut 06032 (the office of the Correspondent) by Beaztey USA Services, Inc. (Correspondent) & APPROVED nrcMFNT DjvI510N 7 2020 F00730 -VuMA A M. LAMBERT Page 4 of 4 022019 ed. Date Issued: 18-Dec-2019 12:06:50 PM