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HomeMy WebLinkAbout17-152 - Miller Mendel Inc - Electonic Statement of Personal History / eSoph - Software License and Service Aggrement-17-152 Contract Appoval N/A1 MILLER MENDEL, INC. MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT This Master Software License and Services Agreement (this "Agreement") is made and entered into on the last date signed below ("Effective Date") between Miller Mendel, Inc., a Washington corporation with an address at 1425 Broadway, #430, Seattle, WA 98122 ("MMI"), and City of Tukwila, by and through the Tukwila Police Department, with an address at 6200 Southcenter Blvd., Tukwila, WA 98188 ("Client"). MMI and Client may each be referred to individually as a "Party" or collectively as the "Parties." BACKGROUND A. MMI is a technology company with a principal market in offering software -as -a -service solutions to governmental and private entities; B. Client desires to license and use MMI's software system known as the "eSOPH" or "electronic Statement Of Personal History." The eSOPH System (defined below) is a web -based software system designed and developed to assist with pre-employment background investigations. The eSOPH System allows Client to manage pre-employment background investigations of persons who apply for employment with Client. C. MMI is willing to allow Client and its Applicants to use the eSOPH System in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the Parties, each intending to be legally bound hereby, do promise and agree as follows: AGREEMENT 1. DEFINITIONS. Except for the terms defined below, all initially capitalized terms used in this Agreement will have the meanings described within the text of this Agreement. As used herein, the following terms have the following defined meanings: 1.1 "Applicant" means a registered end-user that accesses the eSOPH System at the request of a Client to input or upload data or documents for the purpose of Client's management of one or more pre- employment background investigations. 1.3 "Applicant Data" means any data transmitted by Applicant to the eSOPH System. 1.4 "Authorized User" means any user, excluding Applicant(s), who accesses the eSOPH System on behalf of Client and meets the criteria set forth in Section 2.2 (Authorized User Designation). 1.5 "Available" means that the eSOPH System is: (a) available and accessible for use via the web - based interface provided by MMI, provided that Client has an operational Internet connection and all compatible hardware and software, including web browsers, required to access and use the eSOPH System; and (b) functioning in substantial compliance with the Master Agreement and the Documentation. 1.6 "Availability" shall have the meaning described in Section 2.14 (Availability Standards). 1.7 "Client" means the entity stated in the first paragraph at the top of this page, licensed to use the eSOPH System in accordance with the terms and conditions of this Agreement. 1.8 "Client Data" means all data and other information uploaded or transmitted to or keyed into the eSOPH System by Client or an Applicant. 1.9 "Client Specific Terms" means the terms and conditions specific to Client included in a Quote. 1.10 "Defect" means a failure of eSOPH System to substantially conform to the functional specifications set forth in the Master Agreement or the Documentation. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 1 OF 18 Version: June 14, 2017 I�� 04. a an 'nom -L'S MILLER MENDEL, INC. 1.11 "Documentation" means any training materials, product descriptions, technical descriptions, flow charts, or other written or other tangible documentation provided or made available to Client by MMI that describes or depicts the functionality of the eSOPH System. 1.12 "Entry" has the meaning ascribed to it in Section 2.3.2. 1.13 "eSOPH System" means MMI's "electronic Statement Of Personal History" web -based software system designed and developed to assist with pre-employment background investigations, and all related Software. The eSOPH System allows MMI' s clients to manage pre-employment background investigations of persons who apply for employment and volunteer positions with Client. 1.14 "Intellectual Property Rights" means all intellectual property rights throughout the world, whether existing under intellectual property, unfair competition or trade secret laws, or under statute or at common law or equity, including but not limited to: (i) copyrights, trade secrets, trademarks, trade names, patents, inventions, designs, logos and trade dress, "moral rights," mask works, rights of personality, publicity or privacy, and any other intellectual property and proprietary rights; and (ii) any registration, application or right to apply for any of the rights referred to in this clause; and (iii) any and all renewals, extensions and restorations thereof, now or hereafter in force and effect. 1.15 "License Term" shall have the meaning given in Section 4.1 (Term). 1.16 "Primary Administrative User" means an Authorized User of Client's choosing who is authorized to grant initial eSOPH System login and password credentials to another Authorized User to access and use the eSOPH System and either (a) has completed an initial training session provided by MMI on or around the Setup Date or (b) is a successor designated by Client and qualifies in accordance with Section 2.6 (Primary Administrative Users). 1.17 "Quote" means the written quotation delivered by MMI to Client, prior to entering this Agreement, for all License Fees, Setup Fees and Support Services and other costs and fees agreed by the Parties, applicable during the License Term. Each Quote agreed by the Parties is hereby incorporated into this Agreement, and the terms of the current Quote are hereby made material terms of this Agreement which shall supersede any conflicting prior terms. 1.18 "Security Incident" means an unauthorized third party gaining access to Client Data in MMI's storage, possession, or care if it was accessed in unencrypted readable form and either (a) it creates a substantial risk of harm to Client or any individual(s) or (b) applicable law requires notification to individuals' whose personal information was accessed. 1.19 "Services" means, collectively, the provision of the eSOPH System in accordance with the Section 2.9 (Support Services), related professional services, and any other services to be provided by MMI to Client pursuant to this Agreement. 1.20 "Service Credit" means a credit or refund issued pursuant to Section 2.14.2 (Uptime Guarantee; Remedies for Excessive Downtime) for failure to meet the Availability standards set forth in Section 2.14 (Availability Standards). 1.21 "Setup Date" means the day of activation and setup of Client's access to the eSOPH System, which will occur on the first day of training unless otherwise specified and agreed to in writing by the Parties. 1.22 "Software" means the eSOPH System, related proprietary software owned by MMI, and any third -party software required to operate the eSOPH System, all in machine readable, object code form, together with all enhancements, modifications, corrections and amendments thereto. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 2 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 1.23 "Software Fees" means fees paid for Entries, licensing fees for access to the eSOPH System, and any fees paid for maintenance and support allocable to a given calendar month. Such fees that are paid on an annual basis shall be pro -rated (e.g., fees paid for a 1 year License Term shall be divided by 12 to determine the monthly amount) Software Fees allocable to a given month. Software Fees excludes fees paid for professional services (e.g., training, customization, set-up, or installation) and fees paid for corrective work outside the scope of the Support Services described in Section 2.9 (Support Services). 1.24 "Support Request" means a written request for resolution of a Defect submitted by Client to MMI. 1.25 "Support Services" means the support and maintenance services described in Section 2.9 (Support Services). 2. eSOPH SYSTEM LICENSE AND SUPPORT SERVICES 2.1 License Grant. MMI hereby grants to Client a revocable, limited license to access and use the eSOPH System commencing on the Setup Date and for the remainder of the License Term in accordance with the terms and conditions of this Agreement. MMI will provide the eSOPH System to Client in accordance with the Quote for the then -current License Term and terms of this Agreement (or any applicable successor Agreement). 2.2 Authorized User Designation. Client shall designate all current Primary Administrative Users of the eSOPH System in accordance with Section 2.6 (Primary Administrative Users). A current Primary Administrative User may grant access to additional Authorized Users. Client shall ensure its Authorized Users' compliance with the terms of this Agreement, and Client assumes and accepts all responsibility and all liability for each of Client's Authorized Users, and any user whom the Client, or Client's Authorized Users, grants eSOPH System access, including all their acts or omissions while accessing and using the eSOPH System and/or any information obtained through such access and use. 2.3 Set -Up and Use of the eSOPH System. 2.3.1 Upon execution of this Agreement by both parties and MMI's receipt of a purchase order issued by Client in accordance with Section 3 (Fees and Payments), MMI will commence work with Client to establish Client's account on the eSOPH System and provide in-person setup and training for Client's access and use of the eSOPH System. 2.3.2 For each Applicant, an Authorized User (with appropriate permission levels set in the eSOPH System), must create an entry method into the eSOPH System for the Applicant. One method is by entering the Applicant's legal name and other identifying information into the eSOPH System. This is considered an "Entry." An Authorized User, may then grant access to the eSOPH System to the Applicant, who may use it to submit information to assist Client in executing its background investigation of such Applicant. The second entry method is for an Authorized User, to create an access code within the eSOPH System. The access code, if given out to Applicants, will allow those Applicants with the access code to access the system with no further data entry by any Authorized User. The Applicant(s) then has/have access to the eSOPH System to submit information to assist Client in executing its background investigation of such Applicant(s). Each Applicant who accesses the system via the access code option will also be considered an "Entry". Any Authorized Users may access and use the eSOPH System for the purpose of adding information, and accessing and reviewing information submitted by Applicant(s). Any Authorized User, including Applicants, must be capable of entering into legally binding agreements. 2.3.3 If Client desires to have Users under the age of 18 access and use the eSOPH System, Client will, at Client's sole expense and risk, provide a legally sufficient release agreement to be executed by the minor's legal guardian(s), prior to the minor's access to the eSOPH System. The release must include language legally sufficient to hold MMI harmless and release MMI of all liability. Client agrees it is solely responsible, and will retain all executed release agreements, and will provide MMI a fully legible copy of the requested release MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 3 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. agreement(s), if so requested by MMI, within five calendar days of MMI's request. Client is solely responsible for researching and complying with all laws regarding a minor's access to and use of the eSOPH System. Client agrees to defend, indemnify and hold MMI harmless from all claims and damages relating to a minor's use of the eSOPH system. 2.4 Restrictions on Use. 2.4.1 Except as expressly permitted below, Client (including its Authorized Users) is strictly forbidden from entering at any time fictitious data (e.g., names, social security numbers, addresses, phone numbers or other data) into the eSOPH System for "testing," "training," or any other purpose. MMI reserves the right to invoice Client at MMI's then -standard hourly rate, for the removal of any fictitious data entered by any Authorized User. MMI will provide to Client a "fake" applicant name and the other information necessary to conduct training and testing with its Authorized Users, at Client's request. MMI will remove the "fake" applicant from the eSOPH System, after requested by Client, at completion of Client's testing or training. 2.4.2 Client may use the eSOPH System only to aid in pre-employment background investigations for those Applicants who have applied for employment or a volunteer position within the Client's specific government agency (e.g., state government, township, county, city, and village). Client may not use the eSOPH System on behalf of other government agencies or entities. MMI reserves the right to invoice Client all fees equivalent to if the other entity were a direct Client of MMI. Client agrees to pay the fees in accordance with Section 3 (Fees and Payments). 2.5 Acknowledgment of Ownership and Limited License Rights. As between MMI and Client, MMI is the sole and exclusive owner of the eSOPH System (including all updates), Documentation, and all Intellectual Property Rights associated therewith. The eSOPH System is licensed not sold, to Client. Client shall have only the rights specifically granted by MMI under this Agreement. No additional rights are granted or may be inferred. Client shall not: (i) make any modifications to any portion of the eSOPH System to which it is not intended to have access, via the user interface; (ii) attempt to reverse engineer, disassemble, reverse translate, decompile, decode or copy any portion of the eSOPH System; (iii) remove any patent, trademark, service mark or copyright notices which MMI places on the eSOPH System; or (iv) take any other actions inconsistent with the limited rights granted by this Agreement. 2.5.1 Client shall immediately notify MMI of any activity to which it becomes aware which may constitute infringement or attempted infringement of MMI's rights in and to the eSOPH System, including violations of intellectual property law(s). Client shall provide MMI with all reasonable assistance necessary or desirable for MMI to protect any of its rights, including without limitation its Intellectual Property Rights, in connection with the eSOPH System and agrees, upon written request from MMI, to furnish any and all records and information regarding the party suspected of infringement. 2.6 Primary Administrative Users. Client must designate at least one Primary Administrative User ("PAU") in writing to MMI, and Client may designate an additional number of Primary Administrative Users to be active at a time for an additional fee. Client must designate all PAUs using the Designation Form attached hereto as Exhibit A, which is hereby incorporated into this Agreement. As detailed below, Primary Administrative Users are the only representatives of Client authorized to submit support requests to MMI, and they are responsible for troubleshooting all Authorized User and Applicant issues prior to submitting support requests to MMI. Client is responsible for maintaining a current and accurate list of the designated Primary Administrative User(s) with MMI, and must notify MMI within 48 hours of any change in a Primary Administrative User by delivering to MMI an updated and properly signed Designation Form. Client shall be responsible for training replacements for any of Client's designated Primary Administrative User positions. If Client requests MMI provide replacement training, such training shall be provided at MMI's then -standard rates for training. Client shall pay MMI's then standard hourly rate for support and assistance provided to Primary Administrative User's necessitated from Client's failure to designate a properly trained person for a Primary Administrative User position. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 4 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 2.7 System Updates. The eSOPH System may be updated on an as -needed basis by MMI or MMI contracted service providers. Client may need to update its Internet browsers, connections, Internet service, and some hardware from time to time to permit ongoing compatibility with the eSOPH System. 2.8 Sample Forms. The scope, content, format and other details of information and materials requested from Applicants through eSOPH as well as the forms and fields used to collect such information are within the exclusive control of Client and its Authorized Users. Any default or sample forms or fields provided or pre -loaded on the eSOPH System ("Sample Forms") are provided by MMI "as is" with no warranty of any kind, express or implied. If Client uses such Sample Forms, Client does so at Client's own risk, and Client is solely responsible for evaluating such Sample Forms' suitability for Client's purposes and making any necessary or appropriate changes, including without limitation changes required for compliance with laws and regulations that apply to Client. 2.9 Support Services. MMI shall provide the following services (the "Support Services") with respect to the eSOPH System: 2.9.1 MMI will use its commercially reasonable efforts to: (i) maintain the eSOPH System so that it operates without Defects; (ii) host and make the eSOPH System Available at all times excluding Scheduled Downtime; and (iii) cure or minimize the adverse impact of any Defect as soon as is reasonably practicable after such Defect is reported in accordance with this Section 2.9 (Support Services). 2.9.2 Subject to Client's maintaining suitable environments and systems that are compatible, MMI shall provide, install, and implement, as they become available, any bug fixes of the eSOPH System that are provided by MMI free of additional charge to all licensees of the eSOPH System. 2.9.3 Excluded Services. The Support Services do not include any of the following: (a) configuration of other applications required to access eSOPH System, including, but not limited to Client's operating systems, firewalls, or networking components; (b) Client's ongoing training needs; (c) any version upgrades of Client's 3rd party software used in connection with the eSOPH System; (d) enhancements, modifications, or customization to the eSOPH System performed at the Client's request and not intended to resolve a Defect; (e) any version or release of the eSOPH System that MMI may issue as a separate edition, including an alternative or premium version of eSOPH System for which additional fees may be required to access; or (f) resolution of Defects caused by any of the events described in Section 2.13 (Exclusions), below. 2.9.4 MMI Support Hours. MMI will provide email support between the hours of 09:00 and 17:00 Pacific Time, Monday through Friday, excluding holidays. 2.10 Support Request Requirements. Client must comply with all of the following requirements as a condition to receiving Sport Services: 2.10.1 Attempted Resolution by Primary Administrative User(s). Client's Primary Administrative User shall act as the first line of support to troubleshoot any Defects experienced by Applicants and Authorized Users. Only when the Primary Administrative User cannot resolve the Defect should a Support Request be submitted to MMI. If a Defect is reported to MMI that the Primary Administrative User, based on the initial training provided by MMI concurrent with setup of Client's account to access the eSOPH Platform, should have been able to resolve without MMI's assistance, MMI may refer such Defect back to the Primary Administrative User for resolution. 2.10.2 Submission by Primary Administrative Users. All Support Requests must be submitted by and through a Primary Administrative User; MMI is not required to respond to or resolve any Support Request that is submitted by a person other than a Primary Administrative User. 2.10.3 Information Required in Support Request. Each Support Request must include the following information, at a minimum ("Minimum Required Information"): MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 5 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. (a) Client's reasonable, good faith classification of the priority (High, Medium, or Low) of the reported Defect in accordance with the priority levels and definitions contained in Section 2.12 (Resolution Targets and Priority Levels), below, with explanation; (b) Names of Applicants, References and Authorized Users involved with clear notation of their title; (c) Date and time of each occurrence; (d) Computer operating system used by party experiencing the defect; (e) Name of internet browser and version; (f) Specific steps to allow MMI personnel to recreate the issue; (g) Exact wording of any error message received, URL or name of page it was received on, or a screen shot of the error; (h) A description of all steps previously completed to resolve the defect; and (i) If MMI has permission to contact the party directly, if needed. Include contact information. 2.10.4 Additional Information. In addition to the Minimum Required Information listed above, Client shall promptly provide MMI with such other information, files, and records related to the Defect that MMI reasonably requests. 2.10.5 Access to Systems. Subject to Client's applicable security requirements, Client shall provide MMI with access to and use of all systems and environments determined necessary by MMI to provide timely Support Services pursuant to these terms. If Client is unable to provide access, the Parties agree MMI may decline to fix the defect if a reasonable alternative is not available to MMI. 2.11 Response Times. MMI shall provide an initial response acknowledging each complete and validly submitted Support Request no later than 1 business day after it is received. 2.12 Resolution Targets and Priority Levels. MMI will prioritize resolution of Defects according to their severity, and not necessarily based on the order in which they were reported. Defects reported in Support Requests shall be classified using the priority levels and definitions set forth in the table below. Although Client is required to propose a priority level in its Support Request, MMI may reclassify the priority level of a Defect in its sole reasonable discretion, and such determination by MMI shall be final and controlling. MMI shall use its best commercially reasonable efforts to cure Defects within the target resolution times set forth in the table below, which periods of time shall commence when a Support Request containing all Minimum Required Information is submitted. MMI shall have no obligation to respond to or resolve a Support Request (other than notifying Client that the Support Request is incomplete) unless and until all Minimum Required Information is provided. "Priority Levels" are defined in the following Table: Priority Description Target Resolution Time High: A Defect is High priority if it (a) prohibits utilization of 24 hours Complete some or all functionality of the eSOPH System by all or outage or most Authorized Users or Applicants; (b) has a serious severe impact potential impact to Client's business (e.g., an impacted to Client's business function is halted completely); and (b) no business function reasonably effective workaround is available. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT Version: June 14, 2017 PAGE 6 OF 18 MILLER MENDEL, INC. Medium: A Defect is Medium priority if it has a moderate impact on 3 Business Days Partial outage Client's business or it has a potentially serious impact but or a a reasonably effective workaround is available. For workaround example, a Defect would have Medium priority if it only a available small group of Authorize Users or Applicants are affected, or an impacted business function is not halted completely but is merely inconvenienced, or the issue can otherwise be circumvented by a reasonably effective and available workaround (e.g., use of a different web browser), other work functions can be completed in the meantime. Low: Cosmetic A Defect is Low priority it is merely cosmetic or has a 10 Business Days Issue, cosmetic negligible impact to Client's business functions, or other defect work functions can be completed in the meantime. 2.13 Exclusions. MMI shall not be responsible for resolving and expressly disclaims liability and responsibility for lack of Availability or Defects to the extent caused by any of the following: 2.13.1 Client's negligence, abuse, misapplication, misconfiguration, or misuse of eSOPH System, including use of the eSOPH System in violation of the Master Agreement or any written instructions provided by MMI to Client from time to time; 2.13.2 Use of eSOPH System with any hardware, operating system version or network environment that is not supported by MMI, or other problems resulting from defects in Client's or a third party's software or hardware; or 2.13.3 Problems with Client and/or its Authorized Users' telecommunications systems, Client and/or its Authorized Users' internet service provider, or the public internet to the extent affecting internet performance on a general basis (e.g., such as a regional outage), natural disasters, denial of service attacks, acts of terrorism, labor strikes, any other force majeure event, or any other event reasonably beyond MMPs control. 2.14 Availability Standards 2.14.1 Scheduled Downtime. MMI shall strive to avoid and minimize disruptions to the availability and functioning of the eSOPH System. The eSOPH System may be unavailable for scheduled backup and system maintenance ("Scheduled Downtime") during off-peak hours between the hours of 22:00 and 03:00 am PST (the "Maintenance Window"). On a limited and discretionary basis, MMI may adjust the Maintenance Window to occur between the hours of 19:00 and 03:00 am Pacific Time by providing Client with at least 24 hours' notice posted on the log -in screen of the eSOPH System. MMI shall use its best commercially reasonable efforts to schedule all planned downtime during such Maintenance Window. If emergency maintenance must be performed on the eSOPH System which, in MMI's sole discretion, cannot wait until the normal Maintenance Window, MMI will promptly notify Client of such lack of Availability (in advance, if possible) and undertake reasonable commercial efforts to minimize the impact and duration of any such maintenance activity. Any such downtime for maintenance occurring outside the Maintenance Window shall not be deemed Scheduled Downtime for purposes of calculating the Availability percentage described in Section 2.14.3, below. 2.14.2 Uptime Guarantee; Remedies for Excessive Downtime. MMI shall provide Availability of the eSOPH System at least 99% of the time, excluding Scheduled Downtime and lack of Availability caused by the events described in Sections 2.13 and 2.14.3. In the event the Availability of the eSOPH System falls below 99% in any calendar month, MMI will issue to Client a service credit ("Service Credit") in the form of additional Entries equal to the percentage of Entries purchased by Client for the calendar month (Entries per current License Term divided by the total months in the respective License Term) set forth in the table below MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 7 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. corresponding to the actual Availability of the Software. To receive Service Credits, Client must submit a written request to MMI within 15 days after the end of the calendar month in which the eSOPH System failed to achieve 99% Availability, or Client's right to receive Service Credits with respect to such unavailability will be waived by Client. The remedies stated in this Section are Client's sole and exclusive remedies and MMI' sole and exclusive obligations for service interruption or lack of Availability. 2.14.3 Availability is measured by the following formula: x= (n - y) * 100 / n where: "x" is the Availability percentage; "n" is the total number of hours in the given calendar month minus Scheduled Downtime; and "y" is the total number of downtime hours exclusive of Scheduled Downtime and downtime caused by the events set forth in Section 2.13 (Exclusions) in the given calendar month. Availability Percentage of Monthly Software Fees Credited > 99.0% 0% 95.0% - < 99% 3% 90.0% - < 95.0% 5% 80.0% - < 90.0% 10% 3. FEES AND PAYMENT. 3.1 License, Setup and Support Fees. Client will pay to MMI the amounts set forth in the Quote for the applicable License Term in accordance with Section 3.2. Quotes shall be based upon MMI's then -current rates and/or the Client Specific Terms agreed to by the Parties and stated in this Agreement. All payments made to MMI by Client will be in USD. 3.1.1 Client Set-up. Upon receipt of this fully executed Agreement and Client's purchase order, MMI will begin the set-up process of Client on the eSOPH System in accordance with the terms of the Agreement. If Client requests the setup date and time be changed from what was originally stated by Client, Client is responsible for reimbursing MMI for all costs MMI incurs in making the travel arrangement adjustments. Additionally, Client will also be responsible for paying a $200.00 travel arrangement change fee to MMI. MMI will provide records showing the costs MMI incurred. 3.1.2 License and Support. Client shall be invoiced annually for Support Fees during the License Term as set forth in the related Quote. 3.1.3 Additional Training. After the initial training (up to two days/16 hours) has been completed, additional training requested by Client will be billed to Client at a rate of $200.00 USD per hour. Additional onsite training will be billed at a minimum of 8 hours, plus travel, meal and lodging expense accommodations which are reasonable under government agency standards and practices. Requests must be received by MMI in writing from the Primary Administrative User on file with MMI, or higher supervisor. MMI reserves the right to charge $200.00 USD per hour for all off-site/remote training, with a one hour minimum. 3.1.4 Corrective Services. MMI reserves the right to Invoice Client $200.00 USD per hour for any corrective services Client requests. Corrective Services are typically services needed by Client from MMI to correct a mistake made by Client's Authorized Users, which cannot be corrected by Client through the User Interface. Requests must be received by MMI in writing from the Primary Administrative User on file with MMI, or higher supervisor. A one hour minimum will be charged for Corrective Services performed by MMI, which do not require travel. Corrective Services which requires MMI to travel will be billed at $200.00 USD per hour, with an eight (8) hour minimum charge, plus all costs and expenses. 3.1.5 Entries. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 8 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. (a) Client will be invoiced for Entries requested and agreed in the Quote immediately following MMI adding the Entries to the Client's account. Client may purchase additional Entries one time at the then -current rate during the active License Term without incurring an administrative fee. Entries added thereafter during a given License Term will automatically incur an additional twenty percent (20%) administrative fee in addition to the Entries purchase fee. If the purchase is for 300 or more Entries, the administrative fee will be waived. (b) Client may carry over the unused Entries from a License Term to the following License Term only when eligible. To be eligible, MMI must receive full payment of any outstanding balances and a written request for the used Entries to carry over the new License Term. To avoid interruption of service, Client must notify MMI of the request to carry over unused Entries at least five business days of the current License Terms' expiration. Data storage credit will not be carried over. (c) For Quotes that, at Client's request, include multi-year License Terms wherein Client has agreed to purchase and maintain an agreed amount of Entries for the duration of the License Term at a guaranteed fixed-rate price, if Client fails to timely pay the annual invoice for those Entries pursuant to Section 3.2.2, below, then Client thereby waives its right to MMI's guaranteed pricing. Thereafter, MMI's then current pricing per Entry shall apply. 3.1.6 Data Storage Overage. Data storage space used in in excess of the amount listed in the Quotation ("storage credit") will be charged at the overage rate set forth in the Quote for the applicable License Term. Billing intervals for Data storage will be set at the discretion of MMI, but not more often than every three (3) months. Data storage is calculated by the space used by Client on the main production system(s) only; space used for backups is not invoiced. Due to time zone differences, data usage calculations may vary by up to three hours. 3.1.7 Fee for Support. The fee paid for support services defined in Sections 2.9-2.14 shall obligate MMI only to provide support as defined to the Primary Administrative User(s) identified and paid for by the Client. If Client wishes designate more than one Primary Administrative User to be active concurrently, then Client shall pay an additional 15% of the total sum of the fees for Entries listed in the Quote, per additional Primary Administrative User position, per License Term. 3.2 Invoices. Invoices shall be issued in accordance with the payment terms set forth in this Agreement. All pre -approved expenses and other charges, if applicable, will be listed on the invoice as a separate item. The Parties agree the terms and conditions of this Agreement will supersede any conflicting or additional terms set forth in any purchase order documents. Unless otherwise provided in this Agreement, Client will pay the undisputed amounts of any invoices within thirty (30) days of receipt. 3.2.1 For the initial License Term, MMI will issue an invoice for the initial twelve (12) month period within 30 days of MMI delivering, providing or making available its services as agreed, unless otherwise stated in the Quote. 3.2.2 Following the initial setup, during the License Term and Renewal License Terms Client will be invoiced annually for Entries and Support Fees for the following twelve (12) month period, which must be paid prior to the start of that twelve (12) month period. 3.3 Disputes. Client will notify MMI of any disputed charges, in writing, within 15 days from the date of invoice. Any dispute must be reasonable given the terms of this Agreement. The written dispute will include the bases of the dispute and cite all term(s) of the Agreement that validate Client's bases for dispute. MMI and Client will attempt in good faith to resolve any dispute. If the Parties resolve the dispute, MMI will re -invoice for the agreed amount and payment will be due upon receipt of the invoice. If the Parties fail to resolve the dispute within thirty (30) days after the notice by Client, then MMI will consider all disputed amounts as immediately due and payable, and failure of Client to make payment shall be considered a "Failure to Pay" pursuant to Sections 3.4 and 3.5, below. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 9 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 3.4 Interest on past due amounts. MMI may charge interest on any overdue invoices in the amount of 18% per annum or the maximum amount permitted by applicable law, whichever is less. Client shall also pay or arrange exemption from any taxes, charges, or other fees imposed on its use of the eSOPH System (other than taxes on MMI's income), including any applicable sales and/or use tax. If Client is a government agency and represents it is exempt from state or local sales or use tax, and it's later determined Client is not exempt from such tax, Client is responsible for paying or reimbursing MMI for all outstanding sales or use tax, including any penalties and interest. 3.5 Failure to Pay. If Client fails to pay any undisputed sums when due, MMI may, in its sole discretion, after fifty-nine (59) days from the date listed on the original invoice: (a) cease to perform any and all of its obligations under this Agreement; (b) if applicable, suspend or terminate any and all of Client's access to the eSOPH System, including access of its Authorized Users and Applicants, in whole or in part; and/or (c) exercise other remedies available to MMI. 4. TERM, RENEWAL AND TERMINATION 4.1 Term. The term of this Agreement will commence as of the Effective Date and will continue for the period listed in the current written Quote (a "License Term"), and as renewed pursuant to Section 4.2 (Renewal), unless terminated by one or both Parties in accordance with this Agreement, or terminated automatically by the terms of this Agreement. 4.2 Renewal. This Agreement shall automatically be renewed without gap upon timely payment by Client of fees as Quoted pursuant to Section 3 (Fees and Payment). MMI reserves the right to decline to accept Client's renewal payment and thereby allow the License Term to expire without having to invoke the "for cause" Termination provisions of Section 4.3 (Termination), below. If MMI intends to not allow Client to renew, MMI will give Client at least 30 -days written notice prior to the last day of the Client's then current License Term. Renewal shall be upon the terms of this Agreement and including the Client Specific Terms in the applicable Quote. 4.3 Termination. 4.3.1 If this Agreement is not renewed in accordance with Section 4.2, it shall automatically terminate upon expiration of the then -current License Term. 4.3.2 Either party may terminate this Agreement prior to expiration of a License Term without cause upon thirty (30) days prior written notice to the other party. (a) If Client terminates this Agreement prior to expiration of the License Term without cause, all fees for the remainder of the License Term shall become due and payable, and Client shall pay all such fees in addition to any balance already outstanding within thirty (30) days after termination. (b) If MMI terminates this Agreement prior to expiration of the License Term without cause, MMI will issue Client a refund for up to 25% of the remaining Entries, minus any outstanding charges owed by Client. MMI does not issue refunds in greater amounts, or for other circumstances, due to the upfront expenses MMI sustains from continuous maintenance of the eSOPH System. 4.3.3 MMI may terminate this Agreement immediately with cause upon any breach by Client of Section 2.4 (Restrictions on Use), or Section 2.5 (Acknowledgement of Limited Rights); or if Client or any of its Authorized Users violates MMI's Intellectual Property Rights. 4.3.4 Either Party may terminate this Agreement with cause upon thirty (30) days written notice to the other Party in the event the other Party: (a) becomes insolvent; (b) makes an assignment for the benefit of creditors; (c) files a voluntary bankruptcy petition; (d) acquiesces to any involuntary bankruptcy petition; (e) is adjudicated bankrupt; (f) ceases to do business; (g) or other reason amounting to any violation of law connected to the use of the eSOPH System. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 10 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 4.3.5 Without limiting the Parties respective rights in Sections 4.3.3 and 4.3.4 above, either Party may terminate this Agreement with cause in the event that the other Party breaches this Agreement and the breaching Party does not cure such breach within thirty (30) days after receiving written notice of the breach and intent to terminate from the non -breaching Party. If either Party gives notice to the other for substantially the same breach three (3) times during a twelve (12) month period, the non -breaching Party may terminate this Agreement immediately with cause upon receipt of the third notice by the breaching Party. 4.3.6 A Party's termination of this Agreement under this Section 4.3 does not limit either Party from seeking other appropriate legal remedy for any breach. 4.4 Effect of Termination. In the event of termination hereunder, except as set forth in Section 4.3.2(b) above in the event MMI terminates without cause, Client shall have no right to a refund upon termination. Upon termination, MMI will not issue any refunds to Client for payments made pursuant to Section 3 of this Agreement, unless the reason for termination is an independent, sole act of MMI and also without cause. Client shall be obligated to pay in full upon Termination all invoices which were not disputed prior to the Termination. Client may continue to access the information for previously entered Applicants in the eSOPH System for a period of thirty (30) calendar days. MMI reserves the right to charge for data storage fees for storage of Client's Data after termination, provided Client requests MMI retain the data on the eSOPH System. The amount billed for data storage shall be consistent with the amount(s) listed in the Quote for the License Term. If Client does not pay the data storage fee(s) within thirty (30) days after each due date set by MMI, MMI may, at MMI's sole discretion, permanently delete Client's Data, revoke Client's access to the eSOPH System, or both. 4.5 Survival. Where the context, nature, or express terms of any provision indicates intent that it shall survive termination or expiration of this Agreement, then it shall survive the same, including without limitation Sections 1 (Definitions), 2.4 (Restrictions on Use), 2.5 (Acknowledgement of Ownership and Limited License Rights), 3 (Fees and Payment), 4.3 (Termination), 5 (Data Access, Confidentiality and Security), 6 (Representations and Warranties), 7 (Limitation of Liability), 9 (Corrective Actions), 10 (Insurance), 11 (Notices) and 12 (General Terms and Conditions). 5. DATA ACCESS, CONFIDENTIALITY AND SECURITY 5.1 Authorized User Access Only. Client is responsible for all use of its Authorized Users accounts on the eSOPH System. Client shall ensure that its Authorized User(s) properly control and limit access to the eSOPH System to Client's appropriate Authorized Users, and that Client's Authorized Users properly protect their logins, passwords and all other login credentials to prevent unauthorized access and misuse of Client Data, Applicant Data and any other information that may be accessed through the eSOPH System. Client is responsible for its own policy regarding Authorized Users changing their passwords, minimum password complexity requirements beyond what is required by the eSOPH System, and which computer terminals may be used to access the eSOPH System by its Authorized Users, including any unattended devices or computers logged into the eSOPH System. Client shall ensure any previous Authorized User who no longer has a valid purpose to access the eSOPH System will have their eSOPH System login credentials disabled within the eSOPH System, without delay. Former Authorized Users who separate from their relationship with Client shall have their login credentials immediately disabled, without delay, by Client. Client will ensure that each Authorized User has unique login credentials; an Authorized User may not share or disclose its login credentials to any other person, even if such other person is also an Authorized User. 5.2 Two -Factor Authentication. Client acknowledges the eSOPH System offers optional two -factor authentication using Google Authenticator. This service is automatically available to those Clients who desire a two -factor frontend login process. 5.3 Client's Sharing of Applicant Data. The eSOPH System allows Client to externally share Applicant data and other information about Applicants from the eSOPH System. If Client or its Authorized User(s) share Applicant Data or other information about an Applicant with a third party, Client must: (i) possess MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 11 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. valid, signed authorization from each Applicant whose Applicant Data or information is to be shared, legally adequate to authorize Client to share such Applicant Data or information, (ii) refrain from violating any law, policy, term or rule by sharing, transmitting or otherwise disclosing such Applicant Data or information, and (iii) keep the Applicant Data and information secure and private in accordance with any and all applicable privacy laws, and other legal requirement(s) and obligation(s). 5.4 MMI's Sharing of Basic Applicant Data. Client acknowledges and understands a valuable part of the eSOPH System is the ability for Client to see if an Applicant has been entered into the eSOPH System by other MMI client(s). If Client enters an Applicant into the eSOPH System, the eSOPH System will disclose if any other MMI client has previously entered the same Applicant into the eSOPH System. "Basic Applicant Data" information produced to other MMI clients is limited to: Agency/entity name, position applied for, entered date, and closed date. The eSOPH System will also display the point of contact for any other agency(s) who have previously entered the Applicant into the eSOPH System. If Client purges their backgrounds from the eSOPH System, the Basic Applicant Data (as defined in this Section) will remain on the eSOPH System and be visible to other MMI clients. Further information regarding another agency's entry of an Applicant, must be gained through that agency's permission and their own internal process(es). 5.5 Security Incident. In the event MMI learns of a Security Incident, MMI will make every effort to notify Client within 24 -hours of learning of the breach. Notification will be made to the Client's Primary Administrative User or representative identified pursuant to Section 2.6 (Primary Authorized User), via telephone, and also email. Notifications will only be made when an actual Security Incident has occurred; if the data is encrypted, by industry standards, no Security Incident is considered to have occurred and no notification will be made. At the request of Client, and with Client's cooperation and assistance, MMI will work together with law enforcement and other personnel in connection with the unauthorized access into the eSOPH System. MMI takes the privacy and security of data seriously, and uses reasonable administrative, technical, and physical safeguards to protect the confidentiality and security of all Client Data. Clients are encouraged to review MMI's eSOPH Security Overview, which is updated as needed by MMI from time to time and is available upon request. 5.6 Ownership of Client Data. Client owns all Client Data entered into the eSOPH System by its Authorized Users and its Applicants, including Applicant Data entered in response to the Client's request for information to process an Applicant's background investigation. 5.7 Post -Termination Retention of Data. Without limiting Client's rights to Client Data and Applicant Data hereunder, MMI may retain and store the following data during and after the term of this Agreement: Applicant name, Applicant telephone number, Applicant mailing address, Applicant email address, Applicant year of birth, date the Applicant was entered into the eSOPH System, Applicant's background investigation close date, position Applicant has applied for with Client, and the legal agreements (e.g., MMI's Electronic Signature Agreement, Terms of Use and Privacy Policy) related to any Authorized User's or Applicant's use of the eSOPH System. MMI may retain such information and use it to comply with applicable law and the eSOPH System Terms of Use and Privacy Policy and for the purposes described in Section 5.4 (MMI's Sharing of Basic Applicant Data). Other than as stated in this Agreement, MMI will not use such information for other purpose. 5.8 Confidential Information. In performance of this Agreement, the Parties may directly or indirectly disclose to each other confidential information, proprietary information, or confidential data ("Confidential Information"). "Confidential Information" shall include any data and/or information that is identified by either Party as confidential (either orally or in writing) or is of such a nature that a reasonable person would understand such information to be confidential, including, but not limited to, (a) trade secrets or confidential business information of either Party, including without limitation information about such Party's technology, financial information, and plans; and (b) personal information of employees, Applicants, and Authorized Users, including but not limited to, images, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 12 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. law enforcement records, educational records or other information identifiable to a specific individual that relates to any of these types of information ("Personally Identifiable Information" or "PII"). 5.9 Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information the receiving Party can prove by clear and convincing written contemporaneous evidence is: (1) publicly known through no fault or negligence of the receiving Party; (2) rightfully possessed by the receiving Party prior to disclosure by the disclosing Party; (3) rightfully obtained by the receiving Party from a third -party in lawful possession of such Confidential Information without obligation of confidentiality; (4) independently developed by the receiving Party without reference to or use of the disclosing Party's Confidential Information. 5.10 Restrictions on Use and Disclosure. Each party shall not use the other party's Confidential Information for any purpose other than performance of its obligations and exercise of its rights under this Agreement. Furthermore, each party shall not disclose the other party's Confidential Information to any third party except to such party's employees, contractors, and other representatives who (a) have a bona fide need to know such Confidential Information for purposes of performing this Agreement, (b) have been informed of the confidential nature of such information, and (c) have agreed in writing or are otherwise legally bound not to use or further disclose such information except as permitted by this Agreement. 5.11 Disclosure Required by Law. Notwithstanding the foregoing, Confidential Information may be disclosed by a receiving Party to the extent required to be disclosed by public disclosure law or a court order, subpoena, or similar legal requirement; or necessary to disclose to prevent severe physical injury to or loss of life of an individual; provided, however that the receiving Party shall notify the disclosing Party prior to such required disclosure promptly and sufficiently in advance to permit the receiving Party to contest or limit such required disclosure, including without limitation redaction of trade secret information prior disclosure. 5.12 Public Records Request. MMI acknowledges that Client, as a public entity, is at all times subject to state public records acts, as now existing or as amended. If Client receives a public records request for all or any portion of this Agreement, including any documents or materials provided to Client under this Agreement, generally such information will be a public record and must be disclosed to the public records requester. 5.13 Storage and Encryption. During the Term of this Agreement, MMI will store and maintain Client Data and Applicant Data for use and access by Client and its Authorized Users under the terms of this Agreement. MMI will ensure industry standard data encryption methods are in place for storage of Client Data and Applicant Data. The encryption shall meet or exceed HIPAA, and CJIS standards, as well as any other standards stated in MMI's eSOPH Security Overview documentation. 5.14 Backups. MMI shall record snapshot copies of Client Data hourly during the Term and shall record full backup copies of Client Data once per week. Backup copies are stored on both MMI's production server, to enable a quick restore if necessary, and remotely within Amazon Web Services GovCloud (US). Backup records that are older than one calendar week are automatically purged from MMI's production server. At least three months of backup copies are stored remotely and are automatically purged after three, months. MMI uses proprietary software to monitor the automated tasks of Microsoft SQL. 5.15 Payment Card Data. If Client will request or have access to credit card information, Client represents that it is presently in compliance with, and will remain in compliance with, an approved version of the Payment Card Industry Data Security Standard, developed and published jointly by American Express, Discover Financial Services, JCB, MasterCard Worldwide and Visa International ("Card Issuers") or the PCI Security Standards Council (the "Council"), as applicable, for protecting individual numbers used to identify credit and debit card accounts and other personally identifiable information relating to the use of such credit and debit card accounts ("Cardholder Information"), as the same may be amended, updated, replaced or augmented by the Card Issuers and the Council (the "PCI Standard"). Client acknowledges that it may, in connection with performing its duties in accordance with this Agreement, have access to, or be provided, Cardholder Information. Client may not commit any act or omission that causes MMI to be in violation of the PCI Standard or to be fined, MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 13 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. sanctioned or penalized by Card Issuers, the Council or any third party for the failure to properly protect, secure, maintain, use and store Cardholder Information. Client further acknowledges and agrees that, as between Client and MMI, all Cardholder Information is, and will remain, controlled by and the responsibility of Client. Client further acknowledges and agrees that Client is solely responsible for the security of Cardholder Information that it possesses or controls. 5.16 Acts or Omissions of Client. MMI shall have no responsibility or liability with respect to, and Client shall solely be responsible and liable for, any Security Incident and any loss, expense, damage, cost, or liability associated therewith, to the extent caused by or resulting from any act or omission of Client or Client's Authorized Users, employees, contractors (excluding MMI), or agents, including without limitation: (a) their loss of control of any device; (b) their failure to maintain the confidentiality of their log -in credentials; (c) their transmission of data via methods that are not secure; (d) any vulnerability in their environment, systems, hardware, software, or physical or administrative security safeguards or procedures; (e) their use of the eSOPH Platform in violation of this Agreement or any Documentation; (f) their failure to obtain adequate release(s), waiver(s), or legally or contractually required consent; (g) Client's failure to maintain hardware and software that are compatible with any updated or security patches released and implemented by MMI; (h) Client's declining to implement two -factor authentication as described in Sections 5.2 (Two -Factor Authentication). 6. REPRESENTATIONS AND WARRANTIES. 6.1 Client represents and warrants that: 6.1.1 Client has full right, power and authority to enter into and perform its obligations according to the terms of this Agreement; 6.1.2 To Client's knowledge, the Client Data does not and will not infringe or misappropriate any copyright, patent, trade secret, trademark, or other proprietary right held by any third -party and is free of any lien, claim, security interest or encumbrance; and 6.1.3 Neither Client nor any of its employees has received, offered or provided, nor will it receive, offer or provide, directly or indirectly, any gift, gratuity, favor, entertainment, loan or other thing of monetary value to any employee or agent of MMI as an inducement to do business with MMI. Client further warrants its Authorized Users have not, and will not engage in any collusion with any other potential supplier to secure this Agreement. 6.2 MMI represents and warrants that: 6.2.1 MMI has full right, power and authority to enter into and perform its obligations according to the terms of this Agreement; 6.2.2 To MMI's knowledge, the Software complies with all applicable national, state, and local laws and regulations and, to MMI's knowledge, does not contain any material that infringes, violates, or misappropriates the Intellectual Property Rights of any third party, and (ii) to the extent the Software contains any materials subject to third party rights, MMI has obtained any and all necessary clearances, releases, approvals, licenses, or consents from third parties and made any and all required payments to third parties (including without limitation to unions or guilds) so that Client and its Authorized Users can exercise the rights and licenses authorized under this Agreement; 6.2.3 For the Term of this Agreement, the eSOPH System will operate substantially in conformance with any written specifications contained in any Documentation and in this Agreement, including the Client Specific Terms of the Quote. MMI's sole obligation to Client and Client's sole remedy under this warranty is to correct the eSOPH System so it will perform within any represented specifications or refund the related license fee, whole or in part. This warranty is void if any unauthorized modifications are made to the eSOPH System or if the eSOPH System is not used in compliance with the terms of this Agreement; and MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 14 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 6.2.4 Except for the limited warranty provided in this Agreement, the eSOPH System and any other MMI products and services are provided "As Is" and MMI disclaims all warranties, express or implied, that may arise either by the Parties' agreements or by operation of law, including without limitation any warranty of merchantability or fitness for a particular purpose. MMI does not warrant the operation of the eSOPH System shall be error or "bug" free or that the eSOPH System will meet the requirements or expectations of Client, its Authorized Users or Applicants. 7. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY OTHER PERSON IN ANY WAY RELATED TO THE AGREEMENT, THE PERFORMANCE OF ANY WORK PURSUANT TO THIS AGREEMENT, OR USE OF ANY SYSTEM, WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF, OR COULD HAVE REASONABLY FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. Each Party shall be solely liable for third party claims arising from any willful or negligent act or failures to act, or the errors or omissions, of the Party's owners, officers, employees, agents or contractors. Neither Party shall be liable to the other Party for any claim by a third party, by contribution or otherwise, except to the extent of the respective Party's relative negligence with respect to the claim(s), whether by act or omission. 8. NOTIFICATION OF THIRD PARTY ACTION OR CLAIM. Client shall notify MMI of any third party lawsuit, action, and proceeding or claim brought or threatened by a third party against Client or its employee, subcontractor, or other representative or agent based in part on Client's or an Applicant's use of the eSOPH System, including without limitation (a) claims regarding privacy, security, collection, use, processing, or disclosure of Client Data collected through or stored by the eSOPH System, (b) and claims where it is reasonably likely that MMI will be named as a party or witness. 9. CORRECTIVE ACTIONS. If all or any part of the Software is held, or MMI determines that it could be held, to infringe, wrongfully use or misappropriate any third -party intellectual property right, MMI at no cost to Client: (a) will procure for Client the right to continue using the eSOPH System in accordance with its rights under this Agreement; (b) replace the item with a substantially equivalent item that does not infringe, wrongfully use or misappropriate any third -party intellectual property rights; or (c) modify the item (without material loss of functionality) so that it no longer infringes, wrongfully uses or misappropriates any third -party intellectual property right. If MMI is unable to successfully accomplish any of the actions described above after using its commercially reasonable best efforts to accomplish each of them in a timely manner, then MMI will refund to Client a pro -rated amount of the license fees paid by Client hereunder in connection with the unused portion of its licensed rights to the eSOPH System under this Agreement. The remedies set forth in this Section 9 are Client's sole and exclusive remedy and MMI's sole obligation with respect to breach of the warranty contained in Section 6.2.2. 10. INSURANCE. 10.1 Throughout the Term MMI, at its sole expense, will carry and maintain: (a) Commercial General Liability Insurance in the amount not less than $1,000,000 combined single limit per occurrence, $2,000,000 aggregate; (b) Stop Gap/Employer's Liability Insurance in the amount not less than $ 1,000,000 per incident; (c) Professional Liability Insurance in the amount not less than $1,000,000 per claim and in the aggregate; and (d) "Cyber" Insurance in the amount not less than $1,000,000 combined single limit occurrence, $2,000,000 aggregate. MMI will have Client added to the MMI Insurance policy and issue a certificate to Client at Client's request. If Client has requested to be added to the policy, MMI will provide to Client a new certificate, each year, if requested by Client. MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 15 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. 10.2 Client represents it is self-insured or has appropriate insurance to fulfill and maintain its obligations and duties under this Agreement. 11. NOTICES. All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed to MMI or Client at the following addresses: For Miller Mendel, Inc. 1425 Broadway #430 Seattle, WA 98122 Copy of Notice(s) to: Mark Beatty Rylander and Associates PO Box 250 Vancouver, WA 98666 12. GENERAL TERMS AND CONDITIONS. For Client Chief's Office Tukwila Police Department 6200 Southcenter Blvd. Tukwila, WA 98188 Copy ofNotice(s) to: 12.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which such consent may not be unreasonably withheld. Subject to this Section 12.1, this Agreement will inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective Parties. 12.2 Compliance With Laws. Each Party will, at its expense, obtain all permits and licenses, pay all fees, and comply with all federal, state and local laws, ordinances, rules, regulations, codes and orders applicable to its performance under this Agreement. 12.3 Construction. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, then that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. 12.4 Governing Law. This Agreement will be governed by, and construed in accordance with the laws of the state Client is located within, as applied to contracts performed therein but without reference to its choice of law rules, or the federal laws as applied to contracts performed with the United States government. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. 12.5 Headings. The headings and sections in this Agreement and any exhibit, are for convenience and will not be construed to define or limit any of the terms or affect the meaning or interpretation of this Agreement and any exhibit. 12.6 Independent Contractor. MMI and Client are independent contractors under this Agreement, and nothing in this Agreement may be construed to create a partnership, joint venture, franchise or agency or MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 16 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. fiduciary relationship between them. Neither Party has any authority to enter into agreements or make any representations of any kind on behalf of the other Party. 12.7 Nonexclusive Agreement. It is expressly understood and agreed that this Agreement does not grant to Client any exclusive privileges or rights, and MMI may contract with other clients and customers. 12.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The parties agree that any facsimile copy, including those exchanged electronically as a .pdf, of a signed counterpart of this Agreement will be treated the same as a signed original of this Agreement. 12.9 Entire Agreement. This Agreement together with the Quotes and any exhibits attached hereto contains the entire understanding of the Parties with respect to the transactions and matters contemplated herein, supersedes all prior and contemporaneous agreements or negotiations between Client and MMI concerning the subject matter hereof, and cannot be amended except by a writing dated subsequent to this Agreement and signed by both Parties. To the extent the terms and conditions of this Agreement conflict with the terms and conditions of an exhibit, the terms and conditions of this Agreement will control. No course of dealing or usage of trade may be invoked to modify the terms and conditions of this Agreement. 12.10 Copies Shall Be Considered Originals. Any complete, legible signed copy of this Agreement shall be considered an original. 12.11 Signing Authority. Client represents and warrants the person executing this Agreement is a duly authorized officer or representative of the Client, and has full authority to execute this Agreement, including any amendment thereto, for and on behalf of Client. Client understands that it is fully responsible to ensure the authority of its signatory under to this Agreement and is responsible for any actual or consequential damages incurred by MMI in the event of a breach of this Section by Client. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective duly authorized representatives. Miller Mendel, Inc. Client By: Z Name: Tyler Miller Title: CEO Date: June 22, 2017 By: —.— Name: Title: Date: C i-tj ►4 rne' MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 17 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. Date: EXHIBIT A PRIMARY AUTHORIZED USER DESIGNATION FORM (Client) hereby designates the following person(s) as Client's Primary Administrative User(s). This listing is a complete listing of all active PAUs, and completely replaces any prior listing. A Support Fee will be charged for each PAU, as listed in any Quote accepted by Client. Name: Title/Position: Email: Primary Phone: Secondary Phone: MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 18 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. EXHIBIT A PRIMARY AUTHORIZED USER DESIGNATION FORM Date: (Client) hereby designates the following person(s) as Client's Primary Administrative User(s). This listing is a complete listing of all active PAUs, and completely replaces any prior listing. A Support Fee will be charged for each PAU, as listed in any Quote accepted by Client. Name: Title/Position: Email: Primary Phone: Secondary Phone: MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 18 OF 18 Version: June 14, 2017 MILLER MENDEL, INC. EXHIBIT A PRIMARY AUTHORIZED USER DESIGNATION FORM Date: (Client) hereby designates the following person(s) as Client's Primary Administrative User(s). This listing is a complete listing of all active PAUs, and completely replaces any prior listing. A Support Fee will be charged for each PAU, as listed in any Quote accepted by Client. Name: Title/Position: Email: Primary Phone: Secondary Phone: MASTER SOFTWARE LICENSE & SERVICES AGREEMENT PAGE 18 OF 18 Version: June 14, 2017 Date: 22 Jun 2017 Quote Prepared For City of Tukwila Attention: Police Department Accounts Payable 6200 Southcenter Blvd. TUKWILA WA 98188 Reference: eSOPH background system. Description :erMendeI INGENUTY IN TECHNOLOGY Tax ID: 27-1802751 1425 Broadway, #430 Seattle WA 98122 (206) 330-2094 1 tjm@MillerMendel.com Quote #: 00024 Account #: C0T98188 Quantity Unit Price Tax Amount USD eSOPH Entry, Entry into the eSOPH System. Includes .25 GB Storage Credit for 12 mo. period. 15.00 43.65 9.5% 654.75 eSOPH Setup, Two days, up to 18 hours of training & setup. 1.00 4,000.00 9.5% 4,000.00 Terms Subtotal 4,654.75 Total Washington Department of Revenue 9.5% 442.20 TOTAL USD 5,096.95 1. Payment terms subject to those terms listed in the executed MSLA (Net 30). Training and setup days will be scheduled with client upon receipt of the executed MSLSA and receipt of a purchase order. 2. All Entries for the license period are applied to the account on the first day of training/setup. An invoice will be sent to Client for the Entries after the Entries have all been applied to the client's eSOPH account. 3. Only those clients within Washington state are subject to sales/use tax.