HomeMy WebLinkAboutJTI response to Bozeman City Attorney CMS
City of Bozeman, Montana
Request for Proposal (RFP)
Bozeman City Attorney CMS
__________
Submitted by:
eProsecutor Online Case Management System
Journal Technologies, Inc.
Maryjoe Rodriguez, Vice President
915 E. 1st Street
Los Angeles, CA 90012
(213) 229-5402
mrodriguez@journaltech.com
August 27, 2021
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Attention: City Clerk
City of Bozeman
PO Box 1230
Bozeman, MT 59771
agenda@bozeman.net
RE: Bid #: RFP Bozeman City Attorney CMS
To Whom It May Concern:
I enclose the proposal to provide our browser-based eProsecutor Online case management system.
Journal Technologies, a wholly-owned subsidiary of the Daily Journal Corporation, has provided
case management systems to governmental agencies for more than 25 years and serves about 200
courts and agencies in the US and internationally.
I am authorized to answer questions regarding this proposal and negotiate and contractually
obligate the organization. We believe that certain terms and conditions require clarifications or, in
some cases, modifications as set forth in our response. My contact information follows:
Maryjoe Rodriguez, Vice President
Journal Technologies, Inc.
915 E. 1st Street
Los Angeles, CA 90012
(213) 229-5402 direct line
(213) 229-5375 fax
mrodriguez@journaltech.com
Thank you for this opportunity,
Maryjoe Rodriguez
Vice President
Journal Technologies, Inc.
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Table of Contents
Page
Cover Page ...........................................................................................................................1
Table of Contents .................................................................................................................3
Executive Summary .............................................................................................................4
Company Profile ..................................................................................................................5
Scope of Project ...................................................................................................................6
Cloud Questionnaire ..........................................................................................................12
Related Experience and References ...................................................................................14
Implementation Schedule, including Training ...................................................................16
Present and Projected Workloads ......................................................................................17
Maintenance and Support ..................................................................................................18
Price Proposal ....................................................................................................................19
Clarifications/Exceptions and Sample SaaS Agreement ...................................................20
Attachment A Form ...........................................................................................................52
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Executive Summary
Journal Technologies has provided you with the JustWare system for the last six years and have
delivered and supported case management systems to governmental law offices, prosecutors, and
other government agencies for more than 25 years. We serve about 200 prosecutors, courts and
other justice agencies in 42 states and internationally.
We propose to migrate and upgrade you to our eProsecutor Online solution, which provides similar
functionality to JustWare in a plug-n-play style package that includes all of your licenses and
hosting. eProsecutor Online is cloud-hosted and purpose-built for firms like yours that want rich,
out-of-the-box features. The system gives you:
- A secure software-as-a-service system that is accessible from a modern web browser,
including Microsoft Internet Explorer, Microsoft Edge, Google Chrome, Mozilla Firefox,
and Apple Safari. It is natively touch-screen enabled.
- Responsive web design for the portal across multiple devices including desktops, laptops,
tablets and smartphones
- Integration with Microsoft Office 365, and with email and electronic file management
- Document management and assembly features, and support for videos, photos, and audio
files that are connected to specific cases and events
- Standard workflow processes for intake, case assessment, case assignment, contracts,
claims, task delegation, investigations, and electronic discovery
- Built-in reporting tools and ability to create online reports
eProsecutor Online meets your security standards. Role-based security access controls what can
be accessed and by what role. All activities are logged and available in point-and-click audit logs.
The system uses SSL encryption for data in transit, and encryption for data at rest. The data is your
property. (Because the system resides in our cloud, it will not be connected to your Active
Directory.)
Users only need a web browser (Internet Explorer 10+, Chrome, Firefox, etc.) to access
eProsecutor Online and its portal from desktops, laptops, smartphones (iPhone, Android) and tablet
devices (iPad, Galaxy, etc.). The system's graphical user interface, including all screens and
dashboards, is natively touch screen enabled. eProsecutor Online is in the cloud using Amazon
GovCloud.
The Daily Journal Corporation, which owns Journal Technologies, brings several advantages to
the table, including significant financial resources of more than $200 million in cash and
marketable securities. The Company owns two modern office buildings near downtown Los
Angeles, an office building in Logan, Utah, and it has an office in Denver. There are about 140
employees in the publishing division of the Daily Journal who also provide support functions for
Journal Technologies which has about 190 employees.
Although the Daily Journal is a public company, control rests with the Board of Directors.
Corporate management includes Charlie Munger as Chairman of the Board. He, as vice chairman,
and Warren Buffett, as chairman, manage Berkshire Hathaway, one of the largest and most
respected companies in the United States.
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Company Profile
Journal Technologies has provided case management systems to government agencies for more
than 25 years and serves about 200 courts and justice agencies in 42 states and internationally,
including Canada and Australia.
The Daily Journal Corporation, which owns Journal Technologies, brings several advantages to
the table, including significant financial resources of more than $200 million in cash and
marketable securities. The Company owns two modern office buildings near downtown Los
Angeles, an office building in Logan, Utah, and it has an office in Denver. There are about 140
employees in the publishing division of the Daily Journal who also provide support functions for
Journal Technologies which has about 190 employees.
Although the Daily Journal is a public company, control rests with the Board of Directors.
Corporate management includes Charlie Munger as Chairman of the Board. He, as vice chairman,
and Warren Buffett, as chairman, manage Berkshire Hathaway, one of the largest and most
respected companies in the United States.
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Scope of Project
Document Management
eProsecutor Online gives you quick, easy access to your files in a robust document management
system that includes features for indexing, storing, retrieving, versioning, and generating paper-
based and electronic documents. All documents, regardless of file formats (scanned images and
electronic files such as PDF, Word, Excel, PowerPoint, Visio, text, audio, video), are easily stored,
managed, and retrieved from within eProsecutor Online for a single, centrally managed repository
that has the necessary security and automation features to support your business.
Case documents are organized and managed using a graphical, “file explorer” like interface that
lets you drag and drop an unlimited number of items to a case. You can place files into named
folders and child folders for ease of organization. Large documents of many gigabytes can be
uploaded as well.
When the user edits a document, they can upload it to the case with a single click of the Save to
Case button from the Microsoft Word ribbon tool. All revisions are saved so you can see the
document’s history, and view the document’s audit trail with a date and time stamp for each action
performed on that document record, and by whom. The resulting document can be saved as read
only.
Generating from Templates
When you generate a document from eProsecutor Online, it automatically associates with the case
and saves to the repository. Templates are created using Microsoft Word; our Fillpoints feature,
available in the Word ribbon, lets you select the right fields to place in your standard templates.
The templates let you standardize content and quickly generate documents from data already saved
to the case. The template fields are extremely flexible. They allow you to easily insert name, case
and charge data into documents.
Scanning Paper
You will be able to easily scan paper documents to cases using eProsecutor Online’s scanning
feature and either a network- or desktop-attached scanner. Scanning lets you import physical
documents, perform image enhancements, and read bar codes. There are three ways these
documents can be captured: Scan Now, Scan Later, and Bulk scanning. The combined offering
provides scanning functionality at every level.
● Scan Now is a feature that is launched directly within the eProsecutor Online document
interface. Users that are creating a document record can choose the Scan Now button to
drive a scanner that is directly attached to their PC.
● Scan Later is a feature that is used when there is a need to quickly identify the documents
with a cover page and perform the scanning in a downstream process. The user selects Scan
Later to automatically print a cover page that will tie the document to the specific case and
document record in eProsecutor Online. This way you can centralize your scanning
equipment and staff.
● Bulk Scanning lets you batch scan thousands of pages across multiple scanners. It lets you
quickly and efficiently scan large volumes of documents.
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Our approach to capturing physical documents falls under two philosophies - day forward or
backfile. All three features can be used for either strategy.
Full-Text Search and OCR
eProsecutor Online includes a full-text search feature so you can search all documents and
annotations in the repository, or on a specific case, and quickly find information embedded in
them. You can copy text from documents to the clipboard top reuse it. Many documents, including
Word and PDFs that are saved appropriately are natively searchable. For documents that are not,
eProsecutor Online includes an optical character recognition (OCR) engine that can run against
any documents as they are added to the system.
Stamps, Redaction, and Electronic Signatures
eProsecutor Online gives you easy access to configurable stamps, and each user’s signature can be
saved as a stamp to use in pdf documents. The redaction tool lets you select and stretch the
redaction an appropriate size across words, sentences, pictures and paragraphs. A search and redact
tool lets you find specific words to apply a redaction. Stamps, signatures and redactions are then
‘burned’ into the pdf, and save the stamped document as a version. The Bates Stamping feature
lets you sequentially stamp all pages in a document.
Document Viewer, Bookmarks, Links, Notes and Annotations
The system’s document viewer gives an on-screen view of the document with tools that let you
zoom in, zoom out, page through, and navigate to a specific page. A bookmarks and links button
reveals all that are captured with the document for easy navigation. The viewer lets you add
highlighted annotations to a document for private notetaking that can also be shared with other
users or user groups. Your annotations (or shared annotations) appear alongside the document, and
when selected, the system takes you to the page on which the annotation was made.
Print and Distribution
Users may also print documents, send them via internal or external email, and save the document
to the desktop or clipboard.
Conflict checking
Conflict checking based on prior attorney involvement in other cases is a standard feature and
person to person conflict relationships based on husband/wife or judge/previous law practice can
be activated or deactivated as needed. Agency conflicts based on previous prosecution of
defendants who are now victims in cases are also flagged for review. Conflict reporting is handled
by data searches defined by the agency and exportable in a variety of formats.
Electronic Discovery
Discovery is connected to the central filing cabinet of a case so that documents, files, and images
physical evidence can be assembled into a discovery packet, Bates Stamped, disclosed as
eDiscovery using the Public Portal, or copied to physical media for in-person delivery. Complete
tracking of the contents of each discovery packet, delivery and receipt of the packet, and
discoverable items not yet disclosed is a standard feature in eProsecutor Online. Using Workflow,
a new discoverable item can be automatically assigned to the pending work queue of an attorney
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or investigator for review, classification as discoverable or privileged, redaction, and disclosure,
if appropriate.
Dynamic Advanced Searching and Ad-Hoc Reporting
Along with a library of pre-defined searches, you can compose custom searches across all case
elements in the database. The criteria for these inquiries can be based upon range of parameters
you require such as case type, case number, unique person identifier, statute number or charge,
docket code, calendar date, event type, or date, etc. Search results can be sorted by column and
“drill down” into case information via hyperlinks. The search builder provides an easy to use user
interface for constructing both the search criteria and search results. Building searches does not
require database knowledge and can be done in real time. They can also be downloaded as
Microsoft Excel, .pdf, .rtf, .xml and .csv format documents.
● Saved Searches – Often times, users run certain searches more frequently than others.
eProsecutor Online provides “saved search” functionality in which an individual’s search
parameters can be saved for future use and are readily accessible from the left hand
navigation panel under “My Saved Searches.”
● Reports – eProsecutor Online provides full reporting capabilities, with possibilities to output
the reports into pdf, xls, html, xml and many other formats. eProsecutor Online supports ad-
hoc as well as batch processing of pre-designed reports. The reporting module is fully
integrated with the eProsecutor Online workflow system, which allows automatic and batch
processing of reports.
● Expression Builder - The ability to perform configurable searching and reporting in
eProsecutor Online is due to our Expression Builder utility which is the backbone of nearly
all customized inquires to the database including Searches, Reporting (including statistics),
Work Queues, Form Builder, etc. To shield users from the complexity of generating these
queries, the Expression Builder allows users to “point-and-click” their way into creating
whatever queries are necessary.
Calendaring
eProsecutor Online includes a variety of calendar views, including a team calendar that is defined
by the user, daily, weekly and monthly calendars, and an in-court calendar for attorneys to help
manage high-volume docket days. Attorney, witness and officer days off, holidays, and event
blackout days can be added to calendars and combined with business rules to manage future events.
eProsecutor Online’s Outlook interface also posts events to an attorney’s Outlook calendar.
The calendaring system provides a monthly, weekly and daily view, and can be searched by
official, attorney, facility, case type, resource, and date. The resource calendar allows users to
define the individual person calendars they want to see, save those calendars, and designate a
default resource calendar. This allows legal assistants and team members to see the schedule of
only the people they choose, and easily modify which calendars they see. The monthly view shows
at a glance the number of events scheduled in the morning and afternoon, and the number of events
that are reserved. The weekly and daily views show the events that are scheduled. The electronic
case file can be opened by clicking on the event link. Events can be scheduled, reserved, and
rescheduled; agency business and time off can be also scheduled.
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Additional eProsecutor Online Functionality
Dashboard
Every user has a dashboard which can be customized by an individual user to contain a variety of
gadgets such as current cases, upcoming events, notepad, workflow assignments/tasks and
embedded searches/reports. Gadgets can be rearranged by simply dragging them into position.
Dashboards for every attorney can contain a list of only their cases, with additional caseloads
visible to managers based on their security level.
Notes
Notes allow attorneys and others to attach detailed and searchable information to any case. Notes
are often used to organize simple reminders and memos about case information that don't require
formal database fields. Users can quickly create notes of virtually any length with high levels of
custom formatting (font, color size, indentation, bullet items, etc.). Most important, every note is
"security enabled" allowing the note author to precise control who can read/edit the note.
A popular feature of Notes is called "My Library" which acts like a repository of commonly used
notes. Individual users can build their own library of these text snippets and can "reuse" them
anywhere in the system that accepts text input. Users can create their own personal index of notes
or add notes to a common "Prosecutor Library" which can be used by the staff. All notes can be
categorized and tagged so the user can rapidly find the exact note they are looking for. My Library
allows attorneys to save their commonly used snippets of text and re-use them in any written
document.
Case Assignments
Any number of attorneys, investigators, support staff, victim advocates, etc., can be assigned to
cases. Users can be reassigned from cases (and the history of that assignment is saved). Cases
can be reassigned as a bulk operation using a search and mass update.
Checklists
eProsecutor Online’s Checklists can be used to help monitor and prepare cases. These checklists
can include the major steps in the case as well as the required documents. And checklists can be
customized with case notes. Thus, the overall status of the case can be recorded on the checklist
and viewed in the work queues by the appropriate personnel.
Joinders
eProsecutor Online has unique functionality in which a user can establish different types of links
(or “joins”) between two or more related cases. Once joined, a variety of actions can automatically
take place when records for one case are affected. For instance, the agency can identify logical
groups of cases with common staff assignments and other group-applicable business rules.
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eProsecutor Online Common Processes
eProsecutor Online uses workflow-based case management and provides manual as well as
automated workflows by nearly any data-driven parameters including work item and case type,
agency, case status or any event-driven activity. Many workflows have already been configured to
meet standard business processing needs.
The processes described below apply to all types of work items, financial processes, and civil or
criminal case types, since the base configurations are designed to handle any type of legal practice.
The configurability allows the user interface to reflect the practice methods and terminology
unique to the working group.
● Intake workflow: electronic and manual receipt of a referral, case, or assistance request
from an office, agency, or the public. New referrals are assigned to a reviewer’s work
queue for initial review and subsequent assignment to an investigator, attorney, or
paralegal, with a time standard for review and assignment.
● Case assessment workflow: review and classify matters and cases from Intake workflow.
Manual assignment to attorney and paralegal based on supervisory assessment.
● Co-Defendant or Joined defendant and plaintiff tracking if co-defendants or co-
plaintiffs are present in a single case filing.
● Conflict checking of parties, witnesses and co-defendants for prior case involvements.
● Searches
o Data Searches are configurable and can be scheduled to run automatically and
saved on a user-by-user basis. Searches can be configured with “drilldown” sub-
views to provide an extensive amount of detail.
o Specific charge or grouping of related matters: all criminal charges, case types,
matter types, with final disposition and outcomes including civil settlements, civil
and criminal recoveries, convictions, etc.
o Current cases assigned to each investigator, paralegal or attorney and age of case
from the date of the beginning of the action.
o Cases assigned to an attorney with future events listed or other type of expiration
date shown, due date, and by days to expiration of a time standard or resolution
period.
o All cases closed in a specified period, grouped by attorney, including matter type,
charge severity, showing disposition type (plea, finding, judgment, or
recommendation) for each charge or matter, with the ability to sort by each type of
resolution.
o Work items or cases opened and closed in a specific period.
o Upcoming hearings, deadlines, or trials grouped by attorney and ordered by date of
closest event to date of report.
● Discovery
o Methodology to receive case-related documents, e-mails, files, or police reports,
scan and assign to a case, notify a discovery clerk or investigator of the information
received, and in person, e-mail, or public portal disclosure of electronic or physical
discovery files to a defendant or their attorney.
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o Method of tracking disclosure of all items, with dates of disclosure, so
undiscovered/undisclosed items can be easily identified.
● Asset Forfeiture: Property seized as a result of arrests or investigations can be recorded,
including serial numbers, descriptions, and estimated or assessed values. Disposition of
forfeited property can be tracked through property sales records which can record both bids
and final sale amounts.
● Evidence and Exhibits: can be added to cases at any time and a chain of custody can be
established through tracking of dates, times, locations, and custodians in possession of the
evidence. Images of evidence can be attached for use as proxies during hearings.
● Subpoena generation process: workflow to generate physical subpoenas and
victim/interested party notification letters for specific event dates for a specific case.
● Subpoena Service: workflow to assign personal service of a subpoena to include, and
relate certificate of service to the subpoena served.
● Motions filed and legal analysis of issues: ability to associate keywords or some type of
topical organization to documents created by prosecutors so that the research can be located
at a later date when similar issues arise. Commonly referred to as a “brief bank”.
● Time standards: workflows with speedy trial calculation including excluded time
periods, reset trial periods, and the ability to track progress toward and notify persons about
upcoming due dates and missed time standards.
● Digital and electronic signatures and electronic stamping: can be configured for all
documents. Additionally, all documents are securely stored, and a complete document
history is available that logs all activity on the document such as viewing, printing, e-mail,
etc.
● Administration/Supervisor needs are met using management-specific workflow and
work queues, reports, data entry validations, and our powerful ad-hoc data Search
functionality that allows administrators to create and modify searches against virtually any
data entry field. Security can be configured in a variety of ways to share or restrict different
aspects of a case from other users.
● Case Types for eProsecutor Online include: Criminal, Asset Forfeiture, Civil Litigation
and Civil Transactions.
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Attachment C Cloud Services Questions
1. Service levels: What level of service should we expect? What is the City’s recourse for excessive
downtime? Refund of percentage of monthly fee?
Please see our Software as a Service Agreement (the SaaS Agreement) and Exhibit B thereto
(“Support Services and Security”), enclosed with our proposal.
2. Data ownership: Who owns the data we provide and what can be done with the data?
The client owns the data. As set forth in Exhibit B to the SaaS Agreement, JTI’s interaction with
customer data is strictly limited to supporting the customer’s system.
3. Data security: How secure is our data and how is it being kept secure? a. If this is a multi‐tenant
environment on the same hardware how is our data kept separate and secure from other customers,
including any PII (Personally Identifiable Information) that may be gathered? b. If PII is gathered, is it
encrypted in transit and at rest? c. If credit card transactions are occurring is your system fully PCI
compliant?
All customer Data is stored in separate databases (and per application) and different object
storages are used (e.g. S3 bucket). Yes, we are PCI compliant and PII is encrypted in transit and
at rest.
4. Data integrity: What do you do as a vendor to ensure our data maintains its integrity?
JTI adheres to the information security practices set forth in Exhibit B to the SaaS Agreement,
which practices have recently undergone a SOC‐2 Type 1 audit. JTI can share the result of this
audit with City, pursuant to the terms of a non‐disclosure agreement. Additionally, JTI passes on
to City all security warranties provided by AWS GovCloud, an isolated AWS region designed to
host sensitive data and regulated workloads in the cloud.
5. We require data centers to be located in the United States: What country will our data be located in?
USA.
6. Responding to legal demands to disclose data: What is your process when someone subpoenas or
requests our data from you as a vendor?
In the event JTI receives a subpoena or other legal demand requesting City data, JTI will adhere
to the terms of Section 8.4 (“Compelled Disclosures”) of the SaaS Agreement, which provides
that JTI will promptly notify City in such event and thereby enable City to seek a protective order
or other remedy, or alternatively waive its rights in relation to the requested data. JTI will also
provide reasonable assistance, in keeping with the terms of Section 8.4, to assist City in
opposing such disclosure or seeking a protective order or other limitation of disclosure.
Please see Section 8.4, as well as Section 8 (“Confidentiality”), for additional details regarding
JTI’s confidentiality obligations under the SaaS Agreement.
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7. Reporting: What is your protocol for data breaches?
Please see Section 2.5 (“Security Breach”) of Exhibit B to the SaaS Agreement. As set forth there,
in the event of a potential security breach, JTI will follow internal protocols for confirming if a
security breach has in fact occurred. Upon confirmation of verified security breach JTI will
promptly notify City and provide pertinent information known to JTI at that time about the
unauthorized access.
8. Disaster recovery: What protections/ protocols do you have in place to mitigate disasters?
Please see Section 2.7 (“Data Backups and Disaster Recovery) of Exhibit B to the SaaS
Agreement, which section sets forth JTI’s backup protocols and its Restore Point and Recovery
Times Objectives (2 hours or less; 24 hours or less, respectively).
9. Business continuity: If you decide to bring your business to an end what happens to our data?
Please see Section 13.2 (“Termination”) and 13.3 (“Effect of Termination or Expiration”) of the
Agreement, which provides that City may terminate the Agreement upon the insolvency,
bankruptcy or other dissolution of JTI as an incorporated entity. In the event of any such
termination, pursuant to Section 13.3, JTI will return City’s data.
10. Termination rights and consequences: What is your termination policy both for you as a vendor and
us as a customer?
Please see Section 13.2 (“Termination”) of the SaaS Agreement. Therein, both City and JTI
retain rights to terminate the Agreement either for default (after a minimum 30‐day cure
period) or convenience (upon not less than 60 days), or in the event the non‐terminating party
(i) becomes insolvent, (ii) files (voluntarily or involuntarily) a bankruptcy petition, (iii) makes or
seeks to make a general assignment for the benefit of its creditors, of (iv) applies for or has
appointed a receiver, trustee, custodian or similar agent appointed by a court of competent
jurisdiction to take charge of or sell any material portion of its property or business.
Additionally, see Section 13.3 (“Effect of Termination or Expiration”) of the SaaS Agreement for
JTI terms relating to the consequences of termination. Section 13.3 provides that (i) license,
consent, and authorization rights cease upon termination; (ii) JTI shall cease use of City data
upon termination and both return and destroy the same, (iii) City shall cease use of the SaaS.
Upon City’s termination for convenience, or JTI’s termination for City’s default (payment default
or material breach of the Agreement) City will be responsible for payment of fees that had
become due and payable at such time, and additionally such fees that are described in Section
13.3(g).
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Related Experience and References
Related Experience with Projects Similar to the Scope of Services
We have implemented case management systems for prosecutors’ offices of all sizes for over 25
years. In addition, we have provided hosted applications to customers for over a decade. This
includes prosecution systems that are tailored for an office’s unique business processes, and
baseline systems that are installed essentially out of the box with limited configuration. The latter
meets the needs of prosecutor offices that have limited, busy staff and whose personnel are usually
cross-trained to perform a wide variety of tasks (versus those with large staffs who must perform
more specialized work due to the volume of cases).
eProsecutor Online is used by the references we have provided below, and soon by several other
offices in California, Kansas, Wyoming, and Texas. Each of these contracted with us for
eProsecutor Online because of its zero project cost and excellent cloud offering.
eProsecutor, which is the configurable version, is used by the District Attorneys in Placer, Fresno,
Butte, and Tulare counties (California); Monroe County District Attorney (New York); Texas
MFCU; Fairfax County Commonwealth Attorney (Virginia); Benton County Prosecuting Attorney
(Washington); Gila District Attorney and Gilbert City Prosecutor (Arizona); and 22 counties/cities
in the State of Utah. We are implementing eProsecutor for the Salt Lake County District Attorney
(Utah), Salt Lake City Prosecutor (Utah); Imperial and San Francisco District Attorneys
(California); Benton, Clark, and Thurston County Prosecuting Attorneys (Washington), Lake and
McHenry County State’s Attorneys (Illinois), Elko County District Attorney (Nevada), the State
of Maryland Attorney General, the State of Tasmania Director of Public Prosecutions (Australia),
and many more.
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Include at least two clients for which the company has completed a JustWare conversion.
We are including two clients who are live on eProsecutor Online:
Customer: White Pine County District Attorney, NV
Customer Contact: Melissa Brown
Deputy District Attorney
801 Clark Street Number 3
Ely NV, 89301
MABROWN@whitepinecountynv.gov
(775) 289-8828
Customer Description: The White Pine District Attorney's office prosecutes all criminal
matters in the county, including traffic offenses.
Project Cost: $0
Project Dates: 2021
Project Scope: The office's eight staff started testing within a few weeks of contract
signing. The office formerly used the JustWare system, and was
hosted by JTI, so we migrated their data and set-up the system with
no IT assistance from the office. We adjusted some reports as the
DA staff tested and trained on the system. They went live in August
2021.
Customer: Eureka County District Attorney, NV
Customer Contact: Ashley Adams
eProsecutor Online Administrator
10 S Main St
Eureka, NV 89316
AAdams@EurekaCountyNV.gov
(775) 237-5315
Customer Description: The Eureka County District Attorney's office prosecute all crimes
committed in the county, including traffic offenses.
Project Cost: $0
Project Dates: 2021
Project Scope: The eProsecutor Online system was available for the staff to begin
testing within four weeks of Journal receiving the prosecutor's
database backup file. This included all data, documents and reports.
No IT assistance from the office was required. The staff then
proceeded to test and train to ensure that the staff was comfortable
with the system. The office is live as of July 2021.
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Implementation and Schedule, including training
Implementation is straightforward and quick. The system is out-of-the-box ready and available in
the cloud. Online documentation and training tools are available within the system, to assist to
setup your staff. This plug-n-play approach allows you to start using eProsecutor Online almost
immediately. There is also an optional Introductory Training option detailed in our SaaS
Agreement.
This also includes a migration tool to migrate all of your JustWare database into the new
eProsecutor Online. This easy to use tool includes a full set of instructions that will help to facilitate
a smooth transition into eProsecutor Online. The tool will convert all person data, case data,
documents, and reports.
We anticipate your implementation timeline to be 30 days. The team will consist of our
development team who has both experience in JustWare and eProsecutor Online.
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Present and Projected Workloads
Our staff has sufficient bandwidth to begin your project immediately. We anticipate that we will
have your eProsecutor Online test system ready for you, including initial converted data, within
24 hours of receiving your JustWare database file. We can provide our eProsecutor Online projects,
if selected.
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Maintenance and Support
Please see our SaaS Agreement – Exhibit B Support Services.
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Price Proposal
If the number of Authorized Users increases or decreases, the annual Fee will be adjusted pursuant
to the pricing table set forth below, but subject in all events to a minimum annual Fee of $25,000:
Annual Fees for Services Based on Number of Authorized Users (with 1TB of database storage),
includes AWS hosting fees.
Up to 10 Authorized Users $25,000
Between 11 and 20 Authorized Users $25,000 plus $2,000 per each
User over 10 Users
Between 21 and 30 Authorized Users $45,000 plus $1,500 per each
User over 20 Users
An annual CPI-U adjustment will automatically be applied to the annual Fees for each year of the
Agreement after the first year. For the avoidance of doubt, such increase will also apply to any
Fees paid by Customer for additional storage. See Agreement – Exhibit A for more Cost details.
Notes
Since governments normally have limited capital budgets, we lease our systems so that our clients
are not confronted with large initial capital investments. We have found that this model allows
the agency to plan for growth in a cost-conscious way and provides reinforcement and incentives
in a “succeed-or-lose” environment for us to provide high-quality products and continuing services
to our clients. For a highly service-oriented software agreement, the agency pays an annual fee.
The continuing licenses are subject to the payment of the annual fees. Because we lease
eProsecutor Online, it is under continuous warranty.
Because eProsecutor Online is a purely-online, SaaS offering, the transition gives you a simple
implementation with no implementation fees. Instead, upon signing our agreement, we will
provide you access credentials for a designated number of users, migrate your data, and your access
to and use of eProsecutor Online will begin.
For an annual fee, eProsecutor Online is designed to give you peace of mind, with an agreement
that includes implementation, migration, electronic discovery portal, video training, online help
documentation, and database and document storage. eProsecutor Online includes 1TB of database
storage and 1TB of document storage. Additional storage fees are listed in the Agreement – Exhibit
A.
As a general pricing interface rule, we charge $15,000 per data exchange. As we include interfaces
with eProsecutor Online as a part of the product offering, these integrations will come at no
additional cost.
We have prepared our proposal based on that the City is exempt from Federal excise taxes but is
subject to any City or local sales or use taxes. Any increase in these taxes resulting from rate
changes will be the responsibility of the City.
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Journal Technologies, Inc. (“JTI”)
Clarifications and Exceptions to the City of Bozeman (“City”)
Request for Proposal – Prosecutor Case Management Software
Enclosed with our proposal is JTI’s eProsecutor Online Software as a Service (SaaS) Agreement
(the “Agreement”), which we request be used in lieu of the draft contract included in the RFP as
Attachment B. As outlined elsewhere in this proposal, eProsecutor Online is a purely-online, SaaS
offering that provides your office a straightforward transition with no implementation fees. In
keeping with this streamlined approach to eProsecutor Online migration, the enclosed Agreement
contains terms and conditions that are in most respects fixed and not subject to negotiation, with
the exception of certain limited provisions that local or Montana law would preclude City’s
agreement thereto.
For instance, whereas Section 14.13 of the enclosed Agreement would require City and JTI to
resolve any dispute via arbitration (in order to conserve time and resources of both parties), JTI
understands that City may be unable by law to enter into binding arbitration without a subsequent
judicial resort. Additionally, whereas Section 14.12 of the enclosed Agreement stipulates that it
will be governed in accordance with California law, JTI understands that City may require this
term to be revised such that Montana law will govern the Agreement. JTI can also agree that, if
City is prevented by law from indemnifying a third-party software vendor, that any
indemnification provisions bearing upon City in the Agreement (e.g. Section 11.2) are qualified
by the prefatory language: “Except to the extent prohibited by applicable law.”
Aside from the above-referenced revisions, and notwithstanding any conflicting terms set forth in
City’s RFP, including Attachment B, JTI does not expect to revise the enclosed Agreement prior
to execution. As noted above, these terms and conditions are drafted specifically for eProsecutor
Online and govern JTI’s eProsecutor Online contracts with all of our customers.
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Journal Technologies, Inc.
Software as a Service Agreement
This Software as a Service Agreement (the “Agreement”), effective as of [DATE] (the
“Effective Date”), is by and between Journal Technologies, Inc., a Utah corporation (“Provider”),
and [CUSTOMER], a [STATE OF ORGANIZATION] [ENTITY TYPE] with offices located at
[ADDRESS] (“Customer”).
WHEREAS, Provider provides access to its Services to its customers;
WHEREAS, Customer desires to access the Services, and Provider desires to provide
Customer access to the Services, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Definitions.
“Access Credentials” means any user name, identification number, password,
license or security key, security token, PIN, or other security code, method, technology, or
device, used alone or in combination, to verify an individual’s identity and authorization to
access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration,
inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or
investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at
law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control
with, such Person. The term “control” (including the terms “controlled by” and “under
common control with”) means the direct or indirect power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting securities,
by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Authorized Users” means Customer’s employees, consultants, contractors,
and agents (a) who are authorized by Customer to access and use the Services under the rights
granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has
been purchased hereunder.
“Confidential Information” has the meaning set forth in Section 8.1.
“Customer” has the meaning set forth in the preamble.
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“Customer Data” means information, data, and other content, in any form or
medium, that is collected, downloaded, or otherwise received, directly or indirectly, from
Customer or an Authorized User by or through the Services. For the avoidance of doubt,
Customer Data does not include Resultant Data or any other information reflecting the access
or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Indemnitee” has the meaning set forth in Section 11.1.
“Customer Systems” has the meaning set forth in Section 6.2.
“Disclosing Party” has the meaning set forth in Section 8.1.
“Documentation” means any manuals, instructions, or other documents or
materials that the Provider provides or makes available to Customer in any form or medium
and which describe the functionality, components, features, or requirements of the Services
or Provider Materials, including any aspect of the installation, configuration, integration,
operation, use, support, or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section 7.1.
“Force Majeure Event” has the meaning set forth in Section 14.9(a).
“Harmful Code” means any software, hardware, or other technology, device,
or means, including any virus, worm, malware, or other malicious computer code, the purpose
or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort,
or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware,
system, or network; or (ii) any application or function of any of the foregoing or the security,
integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any
Authorized User from accessing or using the Services or Provider Systems as intended by this
Agreement. Harmful Code does not include any Provider Disabling Device.
“Indemnitee” has the meaning set forth in Section 11.3.
“Indemnitor” has the meaning set forth in Section 11.3.
“Intellectual Property Rights” means any and all registered and unregistered
rights granted, applied for, or otherwise now or hereafter in existence under or related to any
patent, copyright, trademark, trade secret, database protection, or other intellectual property
rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order,
constitution, treaty, common law, judgment, decree, or other requirement of any federal, state,
local, or foreign government or political subdivision thereof, or any arbitrator, court, or
tribunal of competent jurisdiction.
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“Losses” means any and all losses, damages, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind,
including reasonable attorneys’ fees and the costs of enforcing any right to indemnification
hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited
liability entity, governmental authority, unincorporated organization, trust, association, or
other entity.
“Process” means to take any action or perform any operation or set of operations
that the SaaS Services are capable of taking or performing on any data, information, or other
content, including to collect, receive, input, upload, download, record, reproduce, store,
organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt,
alter, translate, or make other derivative works or improvements, process, retrieve, output,
consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or
otherwise provide or make available, or block, erase, or destroy. “Processing” and
“Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware, or other
technology, device, or means (including any back door, time bomb, time out, drop dead
device, software routine, or other disabling device) used by Provider or its designee to disable
Customer’s or any Authorized User’s access to or use of the Services automatically with the
passage of time or under the positive control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in Section 11.2.
“Provider Materials” means the Services, Documentation, and Provider
Systems and any and all other information, data, documents, materials, works, and other
content, devices, methods, processes, hardware, software, and other technologies and
inventions, including any deliverables, technical or functional descriptions, requirements,
plans, or reports, that are provided or used by Provider or any Subcontractor in connection
with the Services or otherwise comprise or relate to the Services or Provider Systems. For the
avoidance of doubt, Provider Materials include Resultant Data and any information, data, or
other content derived from Provider’s monitoring of Customer’s access to or use of the
Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of
Services as employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by
or on behalf of Provider in performing the Services, including all computers, software,
hardware, databases, electronic systems (including database management systems), and
networks, whether operated directly by Provider or through the use of third-party services.
“Receiving Party” has the meaning set forth in Section 8.1.
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“Representatives” means, with respect to a party, that party’s employees,
officers, directors, consultants, agents, independent contractors, service providers,
sublicensees, subcontractors, and legal advisors; provided that in no event shall Provider be,
or be deemed to be, a Representative of Customer under this Agreement.
“Resultant Data” means data and information related to Customer’s use of the
Services that is used by Provider in an aggregate and anonymized manner, including to
compile statistical and performance information related to the provision and operation of the
Services.
“Service Allocation” has the meaning set forth in Section 3.2.
“Services” means the software-as-a-service offering described in Exhibit A.
“Subcontractor” has the meaning set forth in Section 2.6.
“Support Services” has the meaning set forth in Exhibit B.
“Term” has the meaning set forth in Section 13.1.
“Third-Party Materials” means materials and information, in any form or
medium, including any open-source or other software, documents, data, content,
specifications, products, equipment, or components of or relating to the Services that are not
proprietary to Provider.
2. Services.
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized
Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants
Customer a non-exclusive, non-transferable (except in compliance with Section 14.8) right to
access and use the Services during the Term, solely for use by Authorized Users in accordance
with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider
shall provide to Customer the Access Credentials upon execution of this Agreement. The total
number of Authorized Users will not exceed the number set forth in Exhibit A, except as
expressly agreed to in writing by the parties and subject to any appropriate adjustment of the
Fees payable hereunder.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive,
non-sublicensable, non-transferable (except in compliance with Section 14.8) license to use
the Documentation during the Term solely for Customer’s internal business purposes in
connection with its use of the Services.
2.3 Service and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision,
maintenance, and management of the Provider Materials; and
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(b) Customer has and will retain sole control over the operation,
maintenance, and management of, and all access to and use of, the Customer Systems,
and sole responsibility for all access to and use of the Provider Materials by any Person
by or through the Customer Systems or any other means controlled by Customer or any
Authorized User, including any: (i) information, instructions, or materials provided by
any of them to the Services or Provider; (ii) results obtained from any use of the Services
or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all
Processing of Customer Data by or on behalf of Provider shall be provided solely from within,
and on computers, systems, networks, and other infrastructure located in, the United States.
2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or
interest in or to (including any license under) any Intellectual Property Rights in or relating
to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by
implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the
Provider Materials, and the Third-Party Materials are and will remain with Provider and the
respective rights holders in the Third-Party Materials.
2.5 Changes. Provider reserves the right, in its sole discretion, to make any changes
to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or
enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive
strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or
performance; or (b) to comply with applicable Law. Without limiting the foregoing, either
party may, at any time during the Term, request in writing changes to the Services. The parties
shall evaluate and, if agreed, implement all such requested changes in accordance with the
change procedure set forth in Section 1.6 of Exhibit B. No requested changes will be effective
unless and until memorialized in a written change order signed by both parties and Customer
pays the applicable fees and amounts for such requested changes as set forth in such change
order.
2.6 Subcontractors. Provider may from time to time in its discretion engage third
parties to perform Services (each, a “Subcontractor”).
2.7 Suspension or Termination of Services. Provider may, directly or indirectly, and
by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or
otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of
all or any part of the Services or Provider Materials, without incurring any resulting obligation
or liability, if: (a) Provider receives a judicial or other governmental demand or order,
subpoena, or law enforcement request that expressly or by reasonable implication requires
Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any
Authorized User has failed to comply with any material term of this Agreement, or accessed
or used the Services beyond the scope of the rights granted or for a purpose not authorized
under this Agreement or in any manner that does not comply with any instruction or
requirement of any specifications provided by Provider; (ii) Customer or any Authorized User
is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities
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relating to or in connection with any of the Services; or (iii) this Agreement has expired or is
terminated. This Section 2.7 does not limit any of Provider’s other rights or remedies, whether
at law, in equity, or under this Agreement.
3. Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to,
access or use the Services or Provider Materials except as expressly permitted by this
Agreement and, in the case of Third-Party Materials, the applicable third-party license
agreement. For purposes of clarity and without limiting the generality of the foregoing,
Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the
Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or
otherwise make available any Services or Provider Materials to any Person, including
on or in connection with the internet or any time-sharing, service bureau, software as a
service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise
attempt to derive or gain access to the source code of the Services or Provider Materials,
in whole or in part;
(d) bypass or breach any security device or protection used by the Services
or Provider Materials or access or use the Services or Provider Materials other than by
an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services
or Provider Systems, any information or materials that are unlawful or injurious, or
contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise
impede or harm in any manner the Services, Provider Systems, or Provider’s provision
of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications,
Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other
intellectual property or proprietary rights notices from any Services or Provider
Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any
purpose that infringes, misappropriates, or otherwise violates any Intellectual Property
Right or other right of any third party, or that violates any applicable Law;
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(i) access or use the Services or Provider Materials for purposes of the
development, provision, or use of a competing software service or product or any other
purpose that is to the Provider’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Provider Materials beyond the
scope of the authorization granted under this Section 3.1.
3.2 Service Usage and Data Storage. Exhibit A sets forth Fees for a designated
number of Authorized Users and a specified amount of database storage (each a “Service
Allocation”), beginning with the Fees payable by Customer for the number of Authorized
Users and database storage in effect as of the Effective Date. Provider will notify Customer
in writing after Customer has reached eighty percent (80%) of its then current Service
Allocation for database storage and Customer’s Service Allocation for database storage will
automatically be expanded by one (1) terabyte and Customer’s Fees will be adjusted
accordingly at the then current annual rate in accordance with Exhibit A. Document storage
shall be charged in accordance with the terms and conditions of Exhibit A.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the
Term: (a) set up, maintain, and operate in good repair and in accordance with the specifications
set forth in Section 2.1 of Exhibit B, all Customer Systems on or through which the Services
are accessed or used; and (b) provide all cooperation and assistance as Provider may
reasonably request to enable Provider to exercise its rights and perform its obligations under
and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any
delay or failure of performance caused in whole or in part by Customer’s or any of its
Representatives’ delay in performing, or failure to perform, any of its or their obligations
under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or
threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized
Users and Representatives to, immediately: (a) take all reasonable and lawful measures within
their respective control that are necessary to stop the activity or threatened activity and to
mitigate its effects (including, where applicable, by discontinuing and preventing any
unauthorized access to the Services and Provider Materials and permanently erasing from their
systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify Provider of any such actual or threatened activity.
5. Data Backup. The Provider Systems are programmed to perform routine data backups
as set out in Provider’s backup policy as amended from time to time, a current version of which is
set forth in Section 2.5 of Exhibit B. Notwithstanding the foregoing, PROVIDER HAS NO
OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION,
DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
6. Security.
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6.1 Information Security. Provider will employ security measures in accordance
with Provider’s data privacy and security policy as amended from time to time, a current copy
of which is set forth in Section 2 of Exhibit B.
6.2 Customer Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b) all information,
instructions, and materials provided by or on behalf of Customer or any Authorized User in
connection with the Services; (c) Customer’s information technology infrastructure, including
computers, software, databases, electronic systems (including database management
systems), and networks, whether operated directly by Customer or through the use of third-
party services (“Customer Systems”); (d) the security and use of Customer’s and its
Authorized Users’ Access Credentials; and (e) all access to and use of the Services and
Provider Materials directly or indirectly by or through the Customer Systems or its or its
Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent,
including all results obtained from, and all conclusions, decisions, and actions based on, such
access or use.
6.3 Access and Security. Customer shall employ all physical, administrative, and
technical controls, screening, and security procedures and other safeguards necessary to: (a)
securely administer the distribution and use of all Access Credentials and protect against any
unauthorized access to or use of the Services; and (b) control the content and use of Customer
Data, including the uploading or other provision of Customer Data for Processing by the
Services. Customer is solely responsible for, and shall indemnify, defend, and hold harmless
Provider regarding any unlawful or accidental access to or authorized or improper disclosure
of Customer Data that results from (i) the conduct of an Authorized User or any other
Customer Representative, (ii) an unauthorized person obtaining an Authorized User’s account
credentials from such an Authorized User or Customer or its Representatives, (iii) changes
that Customer or any of its Representatives makes to the configuration of the Services or the
hosted database, or (iv) software scripts added to the Services or the hosted database by
Customer or any of its Representatives. Without limiting the foregoing, Customer and its
Representatives shall: (A) notify Provider immediately of any unauthorized use of any
password or account or any other known or suspected breach of security; (B) report to Provider
immediately and use reasonable efforts to stop immediately any copying or distribution of
content that is known or suspected by Customer or any of its Representatives or Authorized
Users; and (C) not impersonate another Authorized User or provide false identity information
to gain access to or use the Services.
7. Fees and Payment.
7.1 Fees. Customer shall pay Provider the fees set forth in Exhibit A (“Fees”) in
accordance with this Section 7.
7.2 Taxes. All Fees and other amounts payable by Customer under this Agreement
are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is
responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges
of any kind imposed by any federal, state, or local governmental or regulatory authority on
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any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s
income.
7.3 Payment. Customer shall pay all Fees set forth in Exhibit A within thirty (30)
days after the date of the invoice therefor. Customer shall make all payments hereunder in US
dollars. Customer shall make payments to the address or account specified in Exhibit A or
such other address or account as Provider may specify in writing from time to time.
7.4 Late Payment. If Customer fails to make any payment when due then, in addition
to all other remedies that may be available:
(a) Customer shall reimburse Provider for all costs incurred by Provider in
collecting any late payments, including attorneys’ fees, court costs, and collection
agency fees;
(b) if such failure continues for thirty (30) days, at any time thereafter,
Provider may, immediately upon notice to Customer, suspend performance of the
Services until all past due amounts have been paid in full, without incurring any
obligation or liability to Customer or any other Person by reason of such suspension,
and Customer shall remain responsible for all Fees incurred during the period of
suspension; and
(c) in connection with any such suspension under Section 7.4(b), Provider
may, in its sole discretion, permanently erase all Customer Data and Customer’s
Confidential Information from all systems Provider directly or indirectly controls,
including Provider’s backups, archives and disaster recovery systems, without incurring
any obligation or liability to Customer or any other Person by reason of such erasure or
otherwise.
7.5 No Deductions or Setoffs. All amounts payable to Provider under this
Agreement shall be paid by Customer to Provider in full without any setoff, recoupment,
counterclaim, deduction, debit, or withholding for any reason (other than any deduction or
withholding of tax that is required by applicable Law following notice thereof to Provider).
7.6 Fee Increases. Except as provided for in Exhibit A, and unless Provider indicates
otherwise in the manner described in the next sentence, the annual Fees payable for the
Services (based on the number of Authorized Users) and for each additional terabyte of
database storage utilized by Customer, in each case as set forth on Exhibit A hereto, will
automatically increase for each contract year after the first year in an amount calculated by
multiplying the then-current annual Fees by a fraction (i) the numerator of which is the index
number in the Consumer Price Index for All Urban Consumers (CPI-U) published by the
United States Department of Labor and pertaining to Customer’s geographic region, for the
latest month preceding the commencement of the next contract year for which data is available
and (ii) the denominator of which is said index number as of the time Customer and Provider
executed this Agreement. Provider may also elect to increase Fees for any contract year after
the first contract year of the Term by a different amount than the automatic CPI-U adjustment
described in the preceding sentence by providing written notice of such increase to Customer
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at least 90 calendar days prior to the commencement of such renewal contract year of the
Term, and Exhibit A will be deemed amended accordingly.
8. Confidentiality.
8.1 Confidential Information. In connection with this Agreement each party (as the
“Disclosing Party”) may disclose or make available Confidential Information to the other
party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means
information in any form or medium (whether oral, written, electronic, or other) that the
Disclosing Party considers confidential or proprietary, including information consisting of or
relating to the Disclosing Party’s technology, trade secrets, know-how, operations, plans,
strategies, customers, clients, and pricing, and information with respect to which the
Disclosing Party has contractual, legal or other confidentiality obligations, in each case
whether or not marked, designated, or otherwise identified as “confidential”.
8.2 Exclusions. Confidential Information does not include information that: (a) was
rightfully known to the Receiving Party without restriction on use or disclosure prior to such
information’s being disclosed or made available to the Receiving Party in connection with
this Agreement; (b) was or becomes generally known by the public other than by the
Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was
or is received by the Receiving Party on a non-confidential basis from a third party that, to the
Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any
obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by
written or other documentary records was or is independently developed by the Receiving
Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information. As a condition to being provided with
any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to
exercise its rights or perform its obligations under and in accordance with this
Agreement;
(b) except as may be permitted by and subject to its compliance with Section
8.4, not disclose or permit access to Confidential Information other than to its
Representatives who: (i) need to know such Confidential Information for purposes of
the Receiving Party’s exercise of its rights or performance of its obligations under and
in accordance with this Agreement; (ii) have been informed of the confidential nature
of the Confidential Information and the Receiving Party’s obligations under this Section
8.3; and (iii) are bound by confidentiality and restricted use obligations at least as
protective of the Confidential Information as the terms set forth in this Section 8;
(c) safeguard the Confidential Information from unauthorized use, access,
or disclosure using at least the degree of care it uses to protect its similarly sensitive
information and in no event less than a reasonable degree of care;
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(d) promptly notify the Disclosing Party of any unauthorized use or
disclosure of Confidential Information and take all reasonable steps with Disclosing
Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and
liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
(f) Notwithstanding any other provisions of this Agreement, the Receiving
Party’s obligations under this Section 8 with respect to any Confidential Information
that constitutes a trade secret under any applicable Law will continue until such time, if
ever, as such Confidential Information ceases to qualify for trade secret protection under
one or more such applicable Laws other than as a result of any act or omission of the
Receiving Party or any of its Representatives.
8.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is
compelled by applicable Law to disclose any Confidential Information then, to the extent
permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such
disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing
Party can seek a protective order or other remedy or waive its rights under Section 8.3; and
(b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost
and expense, in opposing such disclosure or seeking a protective order or other limitations on
disclosure. If the Disclosing Party waives compliance or, after providing the notice and
assistance required under this Section 8.4, the Receiving Party remains required by Law to
disclose any Confidential Information, the Receiving Party shall disclose only that portion of
the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the
Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall
use commercially reasonable efforts to obtain assurances from the applicable court or other
presiding authority that such Confidential Information will be afforded confidential treatment.
9. Intellectual Property Rights.
9.1 Provider Materials. All right, title, and interest in and to the Provider Materials,
including all Intellectual Property Rights therein, are and will remain with Provider and, with
respect to Third-Party Materials, the applicable third-party providers own all right, title, and
interest, including all Intellectual Property Rights, in and to the Third-Party Materials.
Customer has no right, license, or authorization with respect to any of the Provider Materials
except as expressly set forth in Section 2.1 or the applicable third-party license, in each case
subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved
by Provider. In furtherance of the foregoing, Customer hereby unconditionally and
irrevocably grants to Provider an assignment of all right, title, and interest in and to the
Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and Provider, Customer is and will
remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data,
including all Intellectual Property Rights relating thereto, subject to the rights and permissions
granted in Section 9.3.
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9.3 Consent to Use Customer Data; Restrictions on Use. Customer hereby
irrevocably grants all such rights and permissions in or relating to Customer Data as are
necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this
Agreement and exercise Provider’s, its Subcontractors’, and the Provider Personnel’s rights
and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations
hereunder. Provider will only Process, use, retain, or disclose Customer Data to provide the
Services, to perform Provider’s obligations hereunder and for the other permitted purposes set
forth in this Agreement, and for no other purpose whatsoever without Customer’s prior written
consent or request. Provider will not sell the Customer Data or retain, use, or disclose the
information outside of the direct business relationship between Customer and Provider.
Provider certifies that it understands the restrictions on Customer Data set forth in the
preceding two sentences and will comply with them. For the avoidance of doubt, this Section
is not intended to prevent Provider’s support personnel from accessing Customer Data for
purposes of investigating or resolving a Support Services request from Customer or its
Representatives.
10. Representations and Warranties.
10.1 Mutual Representations and Warranties. Each party represents and warrants to
the other party that:
(a) it has the full right, power, and authority to enter into and perform its
obligations and grant the rights, licenses, consents, and authorizations it grants or is
required to grant under this Agreement;
(b) the execution of this Agreement by its representative whose signature is
set forth at the end of this Agreement has been duly authorized by all necessary
corporate, governmental or organizational action of such party; and
(c) when executed and delivered by both parties, this Agreement will
constitute the legal, valid, and binding obligation of such party, enforceable against such
party in accordance with its terms.
10.2 Additional Provider Representations, Warranties, and Covenants. Provider
represents, warrants, and covenants to Customer that Provider will perform the Services using
personnel of required skill, experience, and qualifications and in a professional and
workmanlike manner in accordance with generally recognized industry standards for similar
services and will devote adequate resources to meet its obligations under this Agreement.
10.3 Additional Customer Representations, Warranties, and Covenants. Customer
represents, warrants, and covenants to Provider that Customer owns or otherwise has and will
have the necessary rights and consents in and relating to the Customer Data so that, as received
by Provider and Processed in accordance with this Agreement, they do not and will not
infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy
or other rights of any third party or violate any applicable Law.
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10.4 DISCLAIMER OF WARRANTIES. ALL SERVICES AND PROVIDER
MATERIALS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY
LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE
EXCLUDED, LIMITED OR WAIVED, PROVIDER (ON BEHALF OF ITSELF, ITS
AFFILIATES AND ITS AND THEIR REPRESENTATIVES) SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITING THE FOREGOING, NONE OF PROVIDER, ITS
AFFILIATES OR ITS OR THEIR REPRESENTATIVES MAKES ANY WARRANTY OF
ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE
REGARDING THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR
RESULTS OF THE USE THEREOF, OR THAT ANY OF THE FOREGOING WILL MEET
CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK
WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE,
ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR COMPONENTS, OR
ERROR FREE, OR THAT ANY CUSTOMER DATA WILL BE SECURE OR NOT
OTHERWISE LOST OR ALTERED. ALL THIRD-PARTY MATERIALS ARE
PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR
CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN
CUSTOMER AND THE THIRD-PARTY OWNER OR THIRD-PARTY DISTRIBUTOR
OF THE THIRD-PARTY MATERIALS.
11. Indemnification.
11.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless
Customer and Customer’s officers, directors, employees, agents, successors, and assigns
(each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer
Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer
Indemnitee) that Customer’s use of the Services (excluding Customer Data and Third-Party
Materials) in accordance with this Agreement infringes or misappropriates such third party’s
US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the
alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Provider Materials in combination with any
hardware, system, software, network, or other materials or service not provided by
Provider or specified for Customer’s use in the Documentation;
(c) modification of the Provider Materials other than: (i) by or on behalf of
Provider; or (ii) with Provider’s written approval in accordance with Provider’s written
specification;
(d) failure to timely implement any modifications, upgrades, replacements,
or enhancements made available to Customer by or on behalf of Provider; or
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(e) act, omission, or other matter described in Section 11.2(a), Section
11.2(b), Section 11.2(c), or Section 11.2(d), whether or not the same results in any
Action against or Losses by any Provider Indemnitee.
11.2 Customer Indemnification. Customer shall indemnify, defend, and hold
harmless Provider and its Subcontractors and Affiliates, and each of its and their respective
officers, directors, employees, agents, successors, and assigns (each, a “Provider
Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee
resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee)
that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on
behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data,
specifications, software, content, or technology) provided by or on behalf of Customer
or any Authorized User, including Provider’s compliance with any specifications or
directions provided by or on behalf of Customer or any Authorized User to the extent
prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer’s breach of
any of its representations, warranties, covenants, or obligations under this Agreement;
or
(d) negligence or more culpable act or omission (including recklessness or
willful misconduct) by Customer, any Authorized User, or any third party on behalf of
Customer or any Authorized User, in connection with this Agreement.
(e) unlawful or accidental access to or unauthorized or improper disclosure
of Customer Data that results from (i) the conduct of an Authorized User, (ii) an
unauthorized person obtaining an Authorized User’s account credentials from such an
Authorized User or Customer, or (iii) software scripts that are added to the Services by
Customer.
11.3 Indemnification Procedure. Each party shall promptly notify the other party in
writing of any Action for which such party believes it is entitled to be indemnified pursuant
to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the
“Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s
sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall
employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the
Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the
proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor
shall not settle any Action on any terms or in any manner that adversely affects the rights of
any Indemnitee without the Indemnitee’s prior written consent, which shall not be
unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the
defense of such Action, the Indemnitee shall have the right, but no obligation, to defend
against such Action, including settling such Action after giving notice to the Indemnitor, in
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each case in such manner and on such terms as the Indemnitee may deem appropriate. The
Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the
Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor
can demonstrate that it has been prejudiced as a result of such failure.
11.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s
opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-
party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the
Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its
option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider
Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in
part, to seek to make the Services and Provider Materials (as so modified or replaced)
non-infringing, while providing materially equivalent features and functionality, in
which case such modifications or replacements will constitute Services and Provider
Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to
all or part of the Services and Provider Materials, and require Customer to immediately
cease any use of the Services and Provider Materials or any specified part or feature
thereof.
11.5 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE
REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND
PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT
INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY
OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR
IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER
ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR
ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR DIMINUTION IN
VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR
DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF
DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF
REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION;
OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH
PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES
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OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND
NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS
ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE
AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY
OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT OF ANNUAL
FEES PAID TO PROVIDER UNDER THIS AGREEMENT FOR THE THEN CURRENT
YEAR OF THE TERM DURING WHICH THE EVENT GIVING RISE TO THE CLAIM
OCCURRED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY
FAILS OF ITS ESSENTIAL PURPOSE.
13. Term and Termination.
13.1 Term. The term of this Agreement commences as of the Effective Date and,
unless terminated earlier pursuant any of the Agreement’s express provisions, will continue
in effect until the first anniversary of such date, and shall thereafter automatically renew for
successive one-year periods (the “Term”), unless either party elects to not renew the Term
upon written notice to the other party given not less than sixty (60) days prior to the end of
the then-current Term.
13.2 Termination. In addition to any other express termination right set forth
elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to
Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure
continues more than thirty (30) days after Provider’s delivery of written notice thereof;
or (ii) breaches any of its obligations under Section 3.1, Section 6.2, Section 6.3, or
Section 8;
(b) either party may terminate this Agreement without cause by giving the
other party written notice at least sixty (60) days prior to the date of termination;
(c) either party may terminate this Agreement, effective on written notice to
the other party, if the other party materially breaches this Agreement, and such breach:
(i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days
after the non-breaching party provides the breaching party with written notice of such
breach; and
(d) either party may terminate this Agreement, effective immediately upon
written notice to the other party, if the other party: (i) becomes insolvent or is generally
unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against
it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject,
voluntarily or involuntarily, to any proceeding under any domestic or foreign
bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for
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the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee,
custodian, or similar agent appointed by order of any court of competent jurisdiction to
take charge of or sell any material portion of its property or business.
13.3 Effect of Termination or Expiration. Upon any expiration or termination of this
Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party
to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or
Customer’s Confidential Information and (i) upon Customer’s payment of the amounts
set forth in Section 2.5 of Exhibit B return to Customer, or at Customer’s written request
destroy, all documents and tangible materials containing, reflecting, incorporating, or
based on Customer Data or Customer’s Confidential Information; and (ii) permanently
erase all Customer Data and Customer’s Confidential Information from all systems
Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations
under this Section 13.3(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Provider
Materials and (i) promptly return to Provider, or at Provider’s written request destroy,
all documents and tangible materials containing, reflecting, incorporating, or based on
any Provider Materials or Provider’s Confidential Information; and (ii) permanently
erase all Provider Materials and Provider’s Confidential Information from all systems
Customer directly or indirectly controls;
(d) notwithstanding anything to the contrary in this Agreement, with respect
to information and materials then in its possession or control: (i) the Receiving Party
may retain the Disclosing Party’s Confidential Information; (ii) Provider may retain
Customer Data; (iii) Customer may retain Provider Materials, in the case of each of
subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long
as required by applicable Law; (iv) Provider may also retain Customer Data in its
backups, archives, and disaster recovery systems until such Customer Data is deleted in
the ordinary course; and (v) all information and materials described in this Section
13.3(d) will remain subject to all confidentiality, security, and other applicable
requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the
Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 13.2(b), or if
Provider terminates this Agreement pursuant to Section 13.2(b), Customer will be
relieved of any obligation to pay any Fees attributable to the period after the effective
date of such termination and Provider will refund to Customer any Fees paid in advance
for Services that Provider has not performed as of the effective date of termination;
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(g) if Provider terminates this Agreement pursuant to Section 13.2(a) or
Section 13.2(b), or if Customer terminates this Agreement pursuant to Section 13.2(b),
all Fees that would have become payable had the Agreement remained in effect until
expiration of the Term will become immediately due and payable, and Customer shall
pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of
Provider’s invoice therefor; and
(h) if Customer requests in writing at least 30 days prior to the effective date
of expiration or termination, subject to Section 13.3(d), Provider shall, within a
commercially reasonable timeframe following such expiration or termination, deliver to
Customer the then most recent version of Customer Data maintained by Provider,
provided that Customer has at that time paid all Fees then outstanding and any amounts
payable after or as a result of such expiration or termination, including any expenses
and fees, on a time and materials basis, for Provider’s services in transferring such
Customer Data.
13.4 Surviving Terms. The provisions set forth in the following sections, and any
other right or obligation of the parties in this Agreement that, by its nature, should survive
termination or expiration of this Agreement, will survive any expiration or termination of this
Agreement: Section 3.1, Section 5 (last sentence only), Section 6.2, Section 6.3, Section 8,
Section 10.4, Section 11, Section 12, Section 13.3, this Section 13.4, and Section 14.
14. Miscellaneous.
14.1 Further Assurances. On a party’s reasonable request, the other party shall, at the
requesting party’s sole cost and expense, execute and deliver all such documents and
instruments, and take all such further actions, as may be necessary to give full effect to this
Agreement.
14.2 Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be construed as creating
any agency, partnership, joint venture, or other form of joint enterprise, employment, or
fiduciary relationship between the parties, and neither party shall have authority to contract
for or bind the other party in any manner whatsoever.
14.3 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person any legal or equitable
right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice,
request, consent, claim, demand, waiver, or other communications under this Agreement have
legal effect only if in writing and addressed to a party as follows (or to such other address or
such other person that such party may designate from time to time in accordance with this
Section 14.4):
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If to Provider: Journal Technologies, Inc.
915 East First Street
Los Angeles, CA 90012
Attention: President
If to Customer: [CUSTOMER ADDRESS]
Facsimile: [FAX NUMBER]
[Email: [EMAIL ADDRESS]]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]
Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when
received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent
by a nationally recognized overnight courier, signature required; and (c) on the third (3rd)
business day after the date mailed by certified or registered mail, return receipt requested,
postage prepaid.
14.5 Interpretation. For purposes of this Agreement: (a) the words “include,”
“includes,” and “including” are deemed to be followed by the words “without limitation”; (b)
the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and
“hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a
comparable meaning when used in the plural, and vice-versa; and (e) words denoting any
gender include all genders. Unless the context otherwise requires, references in this
Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the
sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement;
(y) to an agreement, instrument, or other document means such agreement, instrument, or
other document as amended, supplemented, and modified from time to time to the extent
permitted by the provisions thereof; and (z) to a statute means such statute as amended from
time to time and includes any successor legislation thereto and any regulations promulgated
thereunder. The parties intend this Agreement to be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting an
instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and
appendices referred to herein are an integral part of this Agreement to the same extent as if
they were set forth verbatim herein, and each of them is incorporated herein by this reference.
14.6 Headings. The headings in this Agreement are for reference only and do not
affect the interpretation of this Agreement.
14.7 Entire Agreement. This Agreement, together with the Exhibits hereto,
constitutes the sole and entire agreement of the parties with respect to the subject matter of
this Agreement and supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such subject matter.
14.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or
delegate or otherwise transfer any of its obligations or performance under this Agreement, in
each case whether voluntarily, involuntarily, by operation of law, or otherwise, without
Provider’s prior written consent. No assignment, delegation, or transfer will relieve Customer
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of any of its obligations or performance under this Agreement. Any purported assignment,
delegation, or transfer in violation of this Section 14.8 is void. This Agreement is binding
upon and inures to the benefit of the parties hereto and their respective successors and
permitted assigns.
14.9 Force Majeure.
(a) No Breach or Default. In no event will either party be liable or
responsible to the other party, or be deemed to have defaulted under or breached this
Agreement, for any failure or delay in fulfilling or performing any term of this
Agreement (except for any obligations to make payments), when and to the extent such
failure or delay is caused by any circumstances beyond such party’s reasonable control
(a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion,
war, terrorism, invasion, riot or other civil unrest, pandemic, epidemic, embargoes or
blockades in effect on or after the date of this Agreement, national or regional
emergency, strikes, labor stoppages or slowdowns or other industrial disturbances,
passage of Law or any action taken by a governmental or public authority, including
imposing an embargo, export or import restriction, quota, or other restriction or
prohibition or any complete or partial government shutdown, or national or regional
shortage of adequate power or telecommunications or transportation. Either party may
terminate this Agreement if a Force Majeure Event affecting the other party continues
substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused
by a Force Majeure Event, the affected party shall give prompt written notice to the
other party stating the period of time the occurrence is expected to continue and use
commercially reasonable efforts to end the failure or delay and minimize the effects of
such Force Majeure Event.
14.10 Amendment and Modification; Waiver. No amendment to or modification of
this Agreement is effective unless it is in writing and signed by an authorized representative
of each party; provided, however, that Provider may amend or modify the terms of Exhibit B
at any time upon written notice to Customer of such amendment or modification. No waiver
by any party of any of the provisions hereof shall be effective unless explicitly set forth in
writing and signed by the party so waiving. Except as otherwise set forth in this Agreement,
no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising
from this Agreement will operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power, or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.11 Severability. If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. Upon such determination that any term or
other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the parties as closely as
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possible in a mutually acceptable manner in order that the transactions contemplated hereby
be consummated as originally contemplated to the greatest extent possible.
14.12 Governing Law. This Agreement is governed by and construed in accordance
with the internal laws of the State of California without giving effect to any choice or conflict
of law provision or rule that would require or permit the application of the laws of any
jurisdiction other than those of the State of California.
14.13 Dispute Resolution. Any dispute arising under or related to this Agreement shall
be resolved exclusively as follows, with the costs of any arbitration to be shared equally by
both parties. The parties shall first attempt to resolve amicably the dispute by meeting with
each other, by telephone or in person at a mutually convenient time and location, within thirty
(30) days after written notice of a dispute is delivered from one party to the other. Subsequent
meetings may be held upon mutual agreement of the parties. Any dispute that is not otherwise
resolved by meeting or mediation shall be exclusively resolved by arbitration between the
parties in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS, with
the arbitration to be conducted in Los Angeles, California, or another location mutually agreed
by the parties. The results of such arbitration shall be binding on the parties, and judgment
may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party
may seek interim injunctive relief from any court of competent jurisdiction.
14.14 Equitable Relief. Each party acknowledges and agrees that a breach or
threatened breach by such party of any of its obligations under Section 8 or, in the case of
Customer, Section 3.1, Section 4.3, or Section 6.2, would cause the other party irreparable
harm for which monetary damages would not be an adequate remedy and that, in the event of
such breach or threatened breach, the other party will be entitled to equitable relief, including
a restraining order, an injunction, specific performance, and any other relief that may be
available from any court, without any requirement to post a bond or other security, or to prove
actual damages or that monetary damages are not an adequate remedy. Such remedies are not
exclusive and are in addition to all other remedies that may be available at law, in equity, or
otherwise.
14.15 Counterparts. This Agreement may be executed in counterparts, each of which
is deemed an original, but all of which together are deemed to be one and the same agreement.
A signed copy of this Agreement delivered by facsimile, email, or other means of electronic
transmission is deemed to have the same legal effect as delivery of an original signed copy of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
JOURNAL TECHNOLOGIES, INC.
[CUSTOMER NAME]
By:_______________________________
Name: ____________________________
Title: _____________________________
By:_______________________________
Name: ____________________________
Title: _____________________________
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EXHIBIT A
FEES
eProsecutor® Online
1. Software as a Service Offering: eProsecutor® Online. Annual Fees include access to the
Services, 1 terabyte (“TB”) of database storage, maintenance updates, upgrades, and Support
Services as described in this Agreement. Document storage is billed accordance to the rate table
in Section 2.
2. Annual eProsecutor® Online Fees: [$##,000] (and adjusted for any CPI increase after the
first year), which includes access to the Services for [##] Authorized Users and 1 TB database
storage. Each additional TB of database storage utilized by Customer shall cost $4,000 annually
per TB and shall be added to Customer’s annual Fee, and such additional amount shall be
payable within 30 days following the date of Provider’s invoice therefor provided pursuant to
Section 3.2 of this Agreement.
Document storage shall be charged in accordance with Customer’s usage, and pursuant to the
table set forth below (A. Document Storage). Document storage incorporates two access tiers:
Frequent Access and Infrequent Access. Documents that have not been accessed for a minimum
of thirty (30) days are automatically moved to the Infrequent Access tier. If the document is
requested it will be moved back to the Frequent Access tier and the lifecycle begins again. Each
document object can be up to 5TB in size and is replicated automatically across multiple data
centers for redundancy.
All Document Storage fees are NON-REFUNDABLE for any reason. Provider will NOT refund,
and will not be obligated or required to refund, any storage fees under any circumstances.
Document storage fees are subject to change throughout the course of the Agreement upon 60
days prior notice by Provider.
A. DOCUMENT STORAGE
1. PRICING/FEES
Service Price per month
Storage - Frequent Access Tier $0.093 per GB
Storage – Infrequent Access Tier $0.055 per GB
Storage usage is calculated in binary gigabytes (GB), where 1GB is 1,073,741,824 bytes. This unit of measurement
is also known as a gibibyte (GiB), defined by the International Electrotechnical Commission (IEC)
2. PAYMENTS
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Provider automatically bills Customer on a monthly basis for Document Storage.
Customer has two options for paying monthly fees:
Option #1: Invoice
Customer will be sent a monthly invoice for average daily storage usage. Customer
may use ACH to make monthly invoice payments.
Option #2: Automated
Customer may opt to automatically pay monthly storage by setting up an automatic
online payment plan with Provider. If Customer is interested in using this method of
payment, Customer should contact Provider using the contact information set forth in
Section 14.4.
B. DATABASE STORAGE
1. PRICING/FEES
Description Price per month
First 1TB Included
Cost per year for each additional TB $4,000
2. PAYMENTS
If database storage is either (i) automatically expanded or (ii) Customer requests purchase of
additional storage, Customer will be invoiced immediately with the prorated rate calculated to
the end of the annual Term renewal period. Thereafter the additional storage is billed annually
as part of the Services Fee.
C. INCREASE OR DECREASE OF AUTHORIZED USERS
If the number of Authorized Users increases or decreases, the annual Fee will be adjusted
pursuant to the pricing table set forth below, but subject in all events to a minimum annual Fee of
$25,000:
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Fees for Services Based on Number of Authorized Users (with 1TB of database storage)
Up to 10 Authorized Users $25,000
Between 11 and 20 Authorized Users $25,000 plus $2,000 per each
User over 10 Users
Between 21 and 30 Authorized Users $45,000 plus $1,500 per each
User over 20 Users
An annual CPI-U adjustment will automatically be applied to the annual Fees for each year of
the Agreement after the first year. For the avoidance of doubt, such increase will also apply to
any Fees paid by Customer for additional storage provided pursuant to Section 3.2 of this
Agreement.
3. Optional Introductory Training Fees. After Customer has received Access Credentials,
Customer may elect to purchase an online training session (“Introductory Training”) from
Provider as to use of the Services for an additional Fee of $5,000 per session. Such Introductory
Training would be available to designated trainees, and would entail a structured curriculum and
a defined maximum number of hours, as determined by Provider and indicated on Provider’s
website. Fees for the Introductory Training, if requested by Customer, will be added to the
annual Fees set forth above in the initial invoice sent to Customer, or shall be invoiced separately
in an invoice for the Introductory Training if the request is made following Provider’s issuance
of the initial annual Fee invoice.
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EXHIBIT B
SUPPORT SERVICES AND SECURITY
1. Support Services
1.1 Support Services Availability. Support Services are available by e-mail or internet
submission from 5:00 am to 7:00 pm Mountain time, Monday through Friday, except for federal
holidays. Provider shall make commercially reasonable efforts to provide an initial response to
Support Services requests within four (4) hours of first contact.
Email: Support@JournalTech.com
a. Outages. Outages of the Services may be reported by telephone at the number below:
Telephone: 1-877-587-8927
1.2 Self-help Resources. Many self-help resources have been built into the Services, using
which Customer should be able to resolve many questions or issues with the Services without
additional assistance from Provider. Customer should initially consult these resources and
Provider may direct Customer to these resources in the event Provider believes they can lead to
full resolution of a Support Services request. The self-help resources include the following:
a. In-line Help Text: All forms entailed in the Services include issue-specific guidance
b. Consolidated Documentation: Provides guidance as to all aspects of the Services
c. Self-Training Videos: A library of issue-specific video demonstrations
1.3. Incident Category. Upon receiving a request for Support Services, Provider shall, in its
good faith discretion, categorize the request pursuant to the criteria below:
Incident Category
Description
1 – Service Failure or
Severe Degradation
This status represents a complete loss of the Services and no
workaround exists. This status only applies to applications that are in
production.
2 – Mild Degradation A fault causing the Services not to operate in accordance with
specifications, but usable with a minimum to moderate level of
difficulty.
3 – General Issue or
Services Enhancement
Includes product questions and feature requests. This category includes
all requests relating to applications that are not in production.
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1.4 Resolution. Upon categorizing a Support Services request according to the above criteria,
Provider shall take commercially reasonable steps toward resolving a given request in the
manner described below:
Incident Category
Nature of Resolution
1 Provider will take steps to resolve Category 1 requests as quickly as is
commercially reasonable. Provider will help with workarounds and bug
reporting. Provider will give Customer reasonable updates.
2 Provider will help with workarounds and bug reporting. Critical bugs will
generally be fixed in Provider’s next regular maintenance release. Non-critical
bugs will be scheduled according to a variety of considerations.
3 Where applicable Provider will direct Customer to self-help materials as to
Services questions. Provider will consider feature requests and act upon such
requests as Provider in its discretion deems appropriate.
1.5. Conditions to Receive Support.
a. Customer must designate at least one and as many as three system administrators, each
of whom shall be an employee or contractor of Customer. Only a designated system
administrator may request Support Services. It is the responsibility of Customer to
instruct Authorized Users to route Support Services requests through system
administrators. Additionally, system administrators will resolve issues raised by
Authorized Users wherever possible and will direct Authorized Users to the self-help
resources listed above in the event such resources may provide such resolution.
b. Customer must provide Provider with accurate screen shots or other files and
documentation as required for each Support Services request.
1.6. Additional Work. Additional work, not specifically referenced above as part of the Support
Services, may be requested by Customer. Provider, in its sole discretion, may elect to perform
such additional work, for additional fees as mutually agreed to in a separate statement of work
that shall be accompanied by a professional services agreement.
1.7. Maintenance and Software Updates. Provider will generally provide any updates or
enhancements as part of regular maintenance releases. As referenced above, resolution of
Category 2 incidents will generally occur as part of such regular releases.
a. Weekly Maintenance Window: The Services will be subject to a maintenance
window each Wednesday evening (9:00PM Wednesday to 4:00AM Thursday, Mountain
Time) or at such additional times as may be separately agreed between Provider and
Customer. The Services maintenance window may include loss of network access, the
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servers, and the operating system during such window. The Services will not always be
disrupted during each weekly maintenance window.
b. Extended Maintenance Outage. If Provider requires additional time for maintenance
or installation, Provider shall provide written notification to Customer at least 24 hours
prior to implementing an extended maintenance outage. Provider’s notice shall explain
the nature and expected duration for the extended maintenance outage.
c. Critical Security Maintenance. The Services shall be subject to immediate security
maintenance with less than 24-hour notice given to the Customer in the event a critical
software vulnerability needs to be patched.
2. Security
2.1 Customer Responsibilities. In addition to Customer’s obligations set forth elsewhere in this
Agreement, Customer’s additional responsibilities with respect to the Services are as follows:
a. Provide a secure internet connection between Authorized Users and the Services that
meets necessary bandwidth requirements.
b. Customer shall (i) notify Provider immediately of any unauthorized use of any
password or account or any other suspected breach of security known to Customer, (ii)
report to Provider immediately and use reasonable efforts to stop immediately any
unauthorized copying or distribution of content that is known or suspected by Customer
or Authorized Users; and (iii) not impersonate another Authorized User or provide false
identity information to gain access to or use the Services.
c. Accept that Customer and any and all third parties associated with Customer (i) will
never have direct, privileged access to Provider’s hosted infrastructure (servers, database,
file storage, monitoring, dashboards, etc) and accordingly (ii) are restricted from
installing or requiring installation of third-party software.
d. Accept that each hosted instance allows for one (1) terabyte of database storage.
Customer will be notified when database storage usage thresholds exceed 80% of the
then available storage and the database storage will be automatically expanded in
accordance with Exhibit A. Additional database storage may be pre-purchased at any
time.
e. Have and maintain the workstation configuration requirements as required by Provider;
the current list of such requirements is set forth below but will be periodically updated on
Provider’s website:
Component Minimum Specification
Processor 1 @ 2.0 Ghz or faster
Hardware Mouse/trackpad, keyboard
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Memory 4 GB minimum (8+ GB preferred)
Monitor Size Minimum resolution: 1600x1200
Video Card Standard
Disc space 100 GB minimum
Network interface Secure internet connection
Operating system/version Supported OS from Microsoft or Apple
Other required software and versions Support browser versions of Customer’s choice from the following list:
Microsoft IE, Microsoft Edge, Firefox, Google Chrome, Apple Safari.
Java Runtime Environment 8 only for automated printing and scanning.
Third-party applications and versions,
what they are used for
MS Word, Adobe (This is for viewing and generating documents in
Word and PDF format)
2.2 Secure Hosted Environment. Provider leverages world class cloud infrastructure providers
like Amazon Web Service (AWS) and Microsoft Azure to host Customer data and software.
These companies provide state-of-the-art compute power, storage and security. Provider’s cloud
hosting service results in a higher level of security, availability, fault tolerance and disaster
preparedness than is generally available with on-premise solutions.
AWS offers an environment specifically for government applications called AWS GovCloud
(US). GovCloud is an isolated AWS region designed to host sensitive data and regulated
workloads in the cloud, helping customers support their U.S. government compliance
requirements, including the International Traffic in Arms Regulations (ITAR) and Federal Risk
and Authorization Management Program (FedRAMP). GovCloud is operated solely by
employees who are vetted U.S. Citizens on U.S. soil. Root account holders of AWS accounts
must confirm they are U.S. Persons before being granted access credentials to the region. All
GovCloud data centers are in the continental United States. GovCloud, in conjunction with other
security and procedural practices, helps to create a JTIS and FIPS 140-2 compliant environment.
More information about GovCloud is available at https://aws.amazon.com/govcloud-us/
Microsoft Azure provides similar services and security.
2.3 Data Security. Provider builds the Services to meet data security standards and best
practices set forth by the U.S. Department of Justice Criminal Justice Information Services
(CJIS) Security Policy. Provider also references Security Control Mapping of CJIS Security
Policy Version 5.9 Requirements to NIST Special Publication 800-53 Revision 5 a mapping
represents a "best fit" correlation between the CJIS Security Policy controls and NIST federal
controls.
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Data at Rest – The database in Provider’s hosted solution is attached to an encrypted volume
with a data key using the industry-standard AES-256 algorithm.
Data in Transit – Customer is hosted in AWS GovCloud (US). The connection to Customer’s
location is established using a site-to-site virtual private network (VPN) or over HTTP or TLS
(HTTPS). When CJI is transmitted outside the boundary of a physically secure AWS data center,
the transmission is encrypted utilizing FIPS 140-2 compliant ciphers with a symmetric cipher
key strength of at least 128-bit strength.
2.4 Security Testing. Provider runs nightly vulnerability scans on its hosted infrastructure. This
includes scans for vulnerabilities such as OWASP exploits, weak authentication, operating
system and application versions, etc. It also checks for suspicious behaviors (or indicators of
compromise) which are programs or people doing activity they don't normally do such as
escalating privileges, logging into a server a named user never uses, accounts running scripts
they previously did not, etc.
Provider undergoes monthly, internal penetration and vulnerability tests across its product lines
using NIST 800-30 to assess the overall risk of any vulnerabilities found. Guidance for
vulnerability tests come from the OWASP Application Security Verification Standard (ASVS)
4.0.
Provider has completed a System & Organization Control (SOC) 2 Type 1 audit, an independent
third-party examination of Provider’s information security controls. Provider can make available
to Customer SOC reports upon Customer's reasonable request therefor, subject to the
confidentiality provisions of this Agreement and any other procedures Provider may deem
necessary to protect the security of such reports.
2.5 Security Breach. A security breach is an incident that results in unauthorized access to
data, applications, networks or devices. In the event of a potential security breach, Provider will
follow its Security Incident Response Plan. If a verified security breach occurs Provider will
promptly notify Customer IT representatives or CSO.
2.6 Data Ownership. All the hosted Customer Data remains Customer’s property during and
after the lifetime of the hosting contract. Provider interaction with Customer Data is strictly
limited to supporting Customer's operation.
2.7 Data Backups and Disaster Recovery. Provider backs up Customer’s production database
redundant storage available in multiple availability zones. At the end of the day, the final backup
is archived, and the other hourly backups are overwritten the next day. Provider maintains
fourteen days of archival data backup.
This gives Provider a Restore Point Objective (RPO) of two hours or less.
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Provider snapshots Customer's running Compute Instances (CI) once every 24 hours and rotates
the CI backups every 14 days.
All backups and snapshots are encrypted at rest.
In a disaster scenario, should Customer’s compute instances in the primary availability zone
cease to respond for two hours Provider begins to restore from backups and snapshots to a
different availability zone.
Provider's DR Restore Point Objective (RPO) is two hours or less and Provider’s Recovery Time
Objective (RTO) is twenty-four hours or less.
Copies of the systems database are available upon request for a transfer fee of $300 dollars and
are provided as an MS SQL Backup file. Backup requests take 3 business days to process and
will be made available on a secure transfer site for download.
Copies of the systems complete document file store are available upon request for a transfer fee of
$40/Day + $0.20 USD/GB with a minimum of 10 calendar days to complete extraction. Shipping
and handling will be added. For this extraction, all documents and other digital files stored in the
case management system will be copied to an encrypted hard drive and delivered via a certified
carrier. Transfer fee is subject to price change throughout the course of this agreement upon 60
days prior notice.
2.8 Cloud Maintenance. Provider (i) installs operating system (OS) updates as needed during
maintenance windows and (ii) installs critical OS updates within 24-48 hours of a CVSS score of
7 or above
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Attachment A
NONDISCRIMINATION AND EQUAL PAY AFFIRMATION
name of entity submitting) hereby affirms it will
not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national
origin, or because of actual or perceived sexual orientation, gender identity or disability and
acknowledges and understands the eventual contract will contain a provision prohibiting
discrimination as described above and this prohibition on discrimination shall apply to the
hiring and treatments or proposer’s employees and to all subcontracts.
In addition, ____________________________________(name of entity submitting) hereby
affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana
Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices”
website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices
publication and has read the material.
Name and title of person authorized to sign on behalf of submitter
Journal Technologies, Inc.
Journal Technologies, Inc.
Maryjoe Rodriguez, VP
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