HomeMy WebLinkAbout22- Professional Services Agreement - Journal Technologies - Case Management Software for the City Attorney's Office1
Journal Technologies, Inc.
Software as a Service Agreement
This Software as a Service Agreement (the “Agreement”), effective as of the date of last
signature below (the “Effective Date”), is by and between Journal Technologies, Inc., a Utah
corporation (“Provider”), and the City of Bozeman, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana (“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 relating to or in connection with any of the Services; or (iii) this Agreement has expired or is
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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) intentionally 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) intentionally 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;
(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
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(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 2.7 of Exhibit B.
6. Security.
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,
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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 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)
changes that Customer or any of its Representatives makes to the configuration of the Services or the hosted database, or (iii) 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 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.
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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 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
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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; (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; or (e) information subject to the open and public records laws of the State of Montana; provided that the Receiving Party will
follow the procedures set forth in Section 8.4 (“Compelled Disclosures”) upon receiving a
request for information via the public record laws or the State of Montana.
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;
(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.
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(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.
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
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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.
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
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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 and Insurance.
11.1 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
(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
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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
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
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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.
11.5 Insurance. Provider shall at Provider’s expense secure insurance coverage through an
insurance company or companies duly licensed and authorized to conduct insurance business in
Montana which insures the liabilities and obligations specifically assumed by the Provider in this
Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed
by the Provider in this Section. The insurance shall cover and apply to all claims, demands, suits,
damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered
by Customer without limit and without regard to the cause therefore and which is acceptable to the
Customer. Provider shall furnish to the Customer an accompanying certificate of insurance and
accompanying endorsements in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability (for non-owned and hired automobiles) - $1,000,000 property
damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
• Cyber Liability Insurance – $1,000,000 per occurrence. This policy may be independent or specifically covered in the General Liability Insurance policy and shall cover data breaches and cyberattacks.
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The above amounts shall be exclusive of defense costs. Customer shall be endorsed as an
additional or named insured on a primary non-contributory basis on the Commercial General,
Employer’s Liability, Automobile Liability, and Cyber Liability policies. The insurance and
required endorsements must be in a form suitable to Customer and shall include no less than a
thirty (30) day notice of cancellation or non-renewal. Provider shall notify Customer within two
(2) business days of Provider’s receipt of notice that any required insurance coverage will be
terminated or Provider’s decision to terminate any required insurance coverage for any reason.
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 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
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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
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) will in consultation with Customer return Customer Data in MS-SQL format and/or 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;
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(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) Customer may retain Provider Materials, in the case of each of subclause (i), and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) 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 including
indemnification;
(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(c), 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;
(g) if Provider terminates this Agreement pursuant to Section 13.2(a) or
Section 13.2(c), 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.
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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):
If to Provider: Journal Technologies, Inc. 915 East First Street Los Angeles, CA 90012
Attention: Maryjoe Rodriguez, President
If to Customer: City of Bozeman City Attorney’s Office P.O. Box 1230 Bozeman, MT 59771-1230 Email: hbienvenue@bozeman.net
Attention: Heather Bienvenue, Office Manager
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
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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. Provider agrees to be bound by its responses to the Customer’s Cloud Questionnaire, incorporated into and attached to this Agreement as Attachment C and made part of this
Agreement. Such responses constitute material consideration for the Customer to enter into
this Agreement and the responses are material representations regarding the Provider’s performance.
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 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
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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 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 laws of the State of Montana.
14.13 Dispute Resolution. 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.
If the parties are unable to resolve the dispute sixty (60) days after the dispute was first raised
in writing, then the parties shall submit the dispute to mediation by an organization or company specializing in providing neutral, third-party mediators. Customer shall be entitled to select either (i) the location of the mediation or (ii) the organization or company, and Provider shall select the other. The mediation shall be conducted within sixty (60) days of the
date the dispute is submitted to mediation, unless the parties mutually agree on a later date.
Any dispute that is not otherwise resolved by meeting or mediation may only be resolved in a court of competent jurisdiction in compliance with the Governing Law provisions of this Agreement. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction.
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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.
15. Nondiscrimination and Equal Pay: Provider agrees that all hiring by Provider of persons performing this Agreement shall be on the basis of merit and
qualifications. Provider will have a policy to provide equal employment opportunity in
accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Provider will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age,
marital status, national origin, actual or perceived sexual orientation, gender identity,
physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Provider shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder.
Provider represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Provider must report to the City any violations of the Montana Equal Pay Act that Provider has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement.
Provider shall require these nondiscrimination terms of its subcontractors providing
services under this Agreement.
15.1 Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA.
[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.
CITY OF BOZEMAN
By:_______________________________
Name: Maryjoe Rodriguez
Title: President
By:_______________________________
Name: ____________________________
Title: _____________________________
Date: _____________________________ Date: _____________________________
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City Manager
Jeff Mihelich
9/15/2022
24
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: $25,000 (and adjusted for any CPI increase after the first
year), which includes access to the Services for up to 10 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 – Archive Access Tier $0.0278 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)
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2. PAYMENTS
Provider automatically bills Customer annually for Document Storage at the end of
each year of the Term; provided, however that once Customer’s total Document
Storage usage reaches a threshold of two (2) TB, Customer will begin receiving
monthly invoices for Document Storage. The storage threshold determining the
timing of Customer’s payments (annually or monthly) is subject to change upon 30
days prior notice. Customer has two options for paying these fees:
Option #1: Invoice
Customer will be sent an invoice for average daily storage usage. Customer may use
ACH to make invoice payments.
Option #2: Automated
Customer may opt to automatically pay storage fees 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
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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:
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 a remote 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
Memory 4 GB minimum (8+ GB preferred)
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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.
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.
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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.
Provider snapshots Customer's running Compute Instances (CI) once every 24 hours and rotates
the CI backups every 14 days.
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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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