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AGREEMENT WITH MARK43 FOR PUBLIC SAFETY
SOFTWARE LICENSE AND SERVICES
This Software License and Services Agreement (“Agreement”) is entered into this 14th day of November 2017
(“Effective Date”) by and between Mark43, Inc., a Delaware corporation, 28 E. 28 th 12th Floor, New York, NY 10016
(“Mark43”), and the County of Fresno, a political subdivision of the State of California (“Subscriber”). Mark43 and
Subscriber shall also be referred to herein singularly as a “Party” and collectively as the “Parties.”
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1.DEFINITIONS.
1.1 Defined Terms. Defined terms have the meanings set forth in this Article 1 (Definitions) and elsewhere in
this Agreement when capitalized, and may be read in singular, plural or an alternative tense as the context
requires.
1.2 “Affiliate” means, with respect to any entity, any other entity who, directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with, such entity. The term
“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of voting securities, by contract or
otherwise.
1.3 “Applicable Law” means, with respect to any party, any federal, state or local statute, law, ordinance,
rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other
requirement of any international, federal, state or local court, administrative agency or commission or
other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such party
or any of its properties, assets or business operations. Notwithstanding any of the foregoing, with respect
to applicable state law, this Agreement shall be governed by the laws of the State of California.
1.4 “Applications” means the Records Management System, Computer-Aided Dispatch and Evidence
Management Applications, as described in Schedule A.
1.5 “Authorized User” means an Affiliate, employee or independent contractor of Subscriber (solely to the
extent such contractor is providing services to Subscriber), who has been authorized by Subscriber to use
the SaaS Services.
1.6 “Business Process Analysis” means after the initial project kickoff, the Mark43 Project Team will
conduct a series of onsite research sessions with key stakeholders of the Subscriber. The primary
purpose of these research sessions is to thoroughly evaluate and understand all current RMS, Evidence
and CAD workflows. Mark43 will document its understanding of the Subscriber’s current workflows – as it
pertains to Mar43’s RMS, Evidence and CAD applications – in a Business Process Analysis document.
1.7 “Documentation” means the user guides and user manuals for the SaaS Services that Mark43 provides
to Subscriber.
1.8 “Implementation Plan” means Mark43’s Implementation Plan will build off the Business Process Analysis
and outline the Subscriber’s projected RMS, Evidence and CAD workflows with Mark43 through the
Implementation Plan document. This document will require review and sign-off from all Subscriber
stakeholders and decision-makers before proceeding with the next phase of the implementation project.
1.9 “Integration Control Document” means the agreement, if applicable, governing any integrations with
Third Party Applications.
1.10 “Intellectual Property Rights” means all intellectual and industrial property rights, whether now existing
or existing in the future, including without limitation, (i) all patent rights, including any rights in pending
patent applications and any related rights; (ii) all copyrights and other related rights throughout the world
in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service
marks, trade dress or other proprietary trade designations, including all registrations and applications
therefor (iv) all rights throughout the world to proprietary know-how, trade secrets and other confidential
information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all
other rights covering industrial or intellectual property recognized in any jurisdiction.
1.11 “Mark43 CAD Launch” means Mark43 will provide onsite launch support of its systems. After launch
support has completed, Mark43 will transition the project from an Implementation phase to a maintenance
phase. This will mark the completion of the Mark43 CAD implementation and launch.
Agreement No. 17-576
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1.12 “Professional Services” means the evaluation, consultation, implementation, customization,
configuration and other services offered by Mark43 in connection with the SaaS Services.
1.13 “SaaS Services” means the Applications, Software, and related software-as-a-service, hosting,
maintenance and/or support services made available by Mark43 for remote access and use by
Subscriber, including any Documentation thereto.
1.14 “Services” means the services provided or required to be provided by or through Mark43 under this
Agreement, including without limitation, SaaS Services and Professional Services.
1.15 “Software” means the object code version of Mark43’s computer software and all Updates made
available by Mark43 to Subscriber under this Agreement.
1.16 “Statement of Work” means a detailed plan of work to be agreed upon by the Parties in conjunction with
this Agreement, subsequent to the Effective Date.
1.17 “Subscriber Data” means all data, information, content and other materials stored or transmitted by
Subscriber and any Authorized User through the SaaS Services (i) in their user accounts; and (ii) on any
Third Party Application, excluding any Third Party Data and any Mark43 Data.
1.18 “Term” means the Initial Term and any Renewal Term(s).
1.19 “Third Party Application" means a third-party service approved by Mark43 to which Subscriber and any
Authorized User facilitates Mark43’s access to, and use, of the SaaS Services, via an application
programming interface or other means.
1.20 “Third Party Components” means any components of the SaaS Service from time to time that are
provided by third parties (e.g., Google Maps).
1.21 “Third Party Data” means any data owned by a third party that Mark43 provides to Subscriber via the
SaaS Service.
1.22 “Third Party Provider” means third parties, including other vendors, state agencies and local agencies
that control products and/or databases with which Mark43 SaaS Services are to be interfaced.
1.23 “Updates” means any and all new releases, new versions, patches and other updates for the SaaS
Services that Mark43 makes generally available without additional charge to its other subscribers of the
SaaS Services.
1.24 “Vendors” means third parties with whom Mark43 contracts to provide components of the SaaS Services,
and includes without limitation, Amazon Web Services (for platform hosting) and Google (for Google
Maps).
1.25 “Website” means any Internet website through which Mark43 provides the SaaS Services under this
Agreement.
1.26 “Workflow Validation” means Mark43 Project Team will configure the RMS, Evidence and CAD
applications based on the approved workflows and settings agreed to by the Subscriber in the
Implementation Plan. The Mark43 Project Team will work with designated Agency stakeholders to
conduct end-to-end workflow testing to ensure Subscriber workflows operate as agreed upon in the
Implementation Plan.
2. SERVICES.
2.1 SaaS Services. During the Term, Mark43 hereby grants a non-exclusive, non-transferable, non-
sublicensable license to Subscriber and its Authorized Users to access and use the SaaS Services
through the Website for Subscriber’s internal purposes and in accordance with the terms and conditions of
this Agreement. Mark43 will be responsible for hosting the Website, and Subscriber and its Authorized
Users will be responsible for obtaining internet connections and other third party software and services
necessary for it to access the Website through the Internet, as set forth in Schedule C, “Technical
Requirements.” Subscriber will be responsible to Mark43 for compliance with the restrictions on use and
other terms and conditions of this Agreement by any of its Authorized Users.
2.2 Professional Services. Mark43 offers Professional Services in connection with the SaaS Services as
further described in Schedule A. To the extent any Professional Services involve the development of any
customization or configuration to the SaaS Services, all Intellectual Property Rights to such customization
or configuration will be solely owned by Mark43 and will be deemed to be included in the definition of
SaaS Services and licensed to Subscriber on the terms set forth herein.
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2.3 Access to Documentation. Mark43 will provide Subscriber via the Website or other means with access
to the Documentation, as may be updated from time to time. Subscriber may print copies of, use, and
permit its Authorized Users to use, the Documentation solely in connection with the use of the SaaS
Services.
2.4 Support Services. Mark43 will provide a telephone-based help desk through which it will respond to
inquiries about the SaaS Services from Subscriber via telephone from 7 AM to 7 PM (Eastern Time),
Mondays through Fridays (excluding U.S. Federal holidays). Mark43 also provides a 24/7 email based
help desk for the SaaS Services as set forth in Schedule A.
2.5 Restrictions on Use. Subscriber and its Authorized Users will not (and will not permit any third party to):
(i) share Subscriber’s or any Authorized User’s login credentials; (ii) reverse engineer, decompile,
disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats,
or interface protocols of the SaaS Services or of any files contained in or generated by the SaaS Services;
(iii) copy, modify, adapt or translate the SaaS Services or the Third Party Data, or otherwise make any
use, resell, distribute or sublicense the SaaS Services or the Third Party Data other than in connection
with this Agreement; (iv) make the SaaS Services available on a “service bureau” basis or allow any third
parties to use the SaaS Services; (v) disclose the SaaS Services or any of its components to third parties;
(vi) remove or modify any proprietary marking or restrictive legends placed on the SaaS Services or the
Third Party Data; (vii) use the SaaS Services or the Third Party Data in violation of any Applicable Law;
(viii) create or augment any mapping-related dataset including a mapping or navigation dataset, business
listings database, mailing list, or telemarketing list) for use in an implementation that is not connected to
the Services; (ix) use the SaaS Services or the Third Party Data in violation of any Applicable Law; (x)
introduce into the Services an viruses, worms, defects, Trojan horses, malware, or any items of a
destructive nature; (xi) use the Services to post advertising or listings; (xii) use the Services to defame,
abuse, harass, stalk, or threaten others; (xiii) permit access or use of the Services by any individual
outside the United States; (xiv) hide or obscure any Authorized User’s location; (xv) permit access or use
of the Services, for any activities other than to enhance Subscriber’s own services, where reliance solely
on, or failure to use, the Services could lead to death, personal injury, or property damages. Subscriber
and its Authorized Users will not access the SaaS Services if in direct competition with Mark 43, and will
not allow access to the SaaS Services by any party who is in direct competition with Mark43, except with
Mark43's prior written consent. Subscriber shall comply with additional restrictions on use of the Services
in Additional Terms, as defined in Section 2.10 below.
2.6 Security Obligations. Subscriber agrees it and its Authorized Users shall securely manage their
respective password(s) for access to the SaaS Service. Subscriber agrees it shall notify Mark43 promptly
in the event it becomes aware of any unauthorized access or use of the SaaS Service, or of any of its or
its Authorized Users passwords or accounts. Unless expressly stated otherwise in this Agreement, a
single username or password may not be used by more than one (1) Authorized User. [In addition,
Authorized Users may log into the SaaS Service from only one location at any given time – concurrent
usage (or sign in) under a single username is prohibited.] Subscriber is responsible for all activities
conducted within User accounts in use of the SaaS Service. Subscriber shall comply with all applicable
local, state, federal and regional or other laws and regulations applicable in connection with use of the
SaaS Service, including all those related to data privacy and the transmission of technical or personal
data. Subscriber agrees to (a) provide true, accurate, current and complete registration data for each
account it creates via the SaaS Service, and (b) maintain and promptly update the registration data to
keep it true, accurate, current and complete.
2.7 Title. As between Mark43 and Subscriber, Mark43 retains title to and ownership of the SaaS Services,
including all copyrights and other Intellectual Property Rights relating thereto. Mark43’s licensors retain
title to and ownership of the Third Party Data and the Third Party Components, including all copyrights
and other intellectual property rights relating thereto. Subscriber will have no rights with respect to the
SaaS Services, the Third Party Data or the Third Party Components other than those expressly granted
under this Agreement. Any suggestions for changes or improvements to Services that Subscriber
provides to Mark43, whether solicited by Mark43 or not, shall be owned by Mark43 and Subscriber hereby
irrevocably assigns, and shall assign, to Mark43 all right, title, and interest in and to such suggestions.
Mark43 shall have no obligation to incorporate such suggestion into its products or Services.
2.8 Subscriber Data. As between Mark43 and Subscriber, Subscriber owns and shall retain all right, title,
and interest, including, without limitation, all Intellectual Property Rights, in and to the Subscriber Data.
Subscriber shall have the sole responsibility for the accuracy, quality, and legality of the Subscriber Data,
including obtaining all rights and consents necessary to share the Subscriber Data with Mark43 as set
forth in this Agreement. Notwithstanding anything to the contrary contained herein, Subscriber hereby
grants to Mark43 an irrevocable, worldwide, royalty free, non-exclusive, transferable, sublicensable
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license to use the Subscriber Data (subject to the provisions of Section 5. Confidentiality below) to:
provide the SaaS Services to Subscriber and other Mark43 subscribers; analyze the Subscriber Data in
anonymized and/or aggregate form in order to operate, maintain, manage, and improve the SaaS
Services, create new products and services, and share and/or license this aggregate data to Affiliates,
agents, business partners, and other third parties; for Mark43’s internal purposes to improve the
Applications, Software, and related services, and any other uses disclosed in or related to performance
under the Agreement or any statement of work.
2.9 Third Party Applications. If Subscriber installs or enables a Third Party Application for use with
the SaaS Services, Subscriber grants (and will cause the applicable third party to grant) Mark43
permission to access Subscriber Data stored on that Third Party Application as required for the
interoperation of that Third Party Application with the SaaS Services. In no event will Mark43 be
responsible for any Third Party Application, or for any failure of a Third Party Application to properly
interoperate with the SaaS Services. If Mark43 receives information that a Third Party Application may
violate any Applicable Laws or Third Party rights, Subscriber will, promptly upon receiving notice of the
foregoing from Mark43, disable any connection between such Third Party Application and the SaaS
Services to resolve the potential violation (and if Subscriber fails to promptly disable such connection,
Mark43 shall have the right to do so). In addition, in the event that Subscriber fails to properly obtain the
grant of rights to Mark43 to access and use Third-Party Data as required for the interoperation of that
Third-Party Application, Subscriber shall defend, indemnify, and hold harmless Mark43 from any and all
claims based on Mark43's use of such Third-Party Application.
2.10 Third Party Components.
(a)Use of Third-Party Components. Mark43 may use subcontractors identified in its “Proposal” in
response to Subscriber’s RFP (Attachment 2 to Schedule A of this Agreement) or otherwise
consented to by Subscriber under Section 9.2 below, to subcontract the performance of its duties and
obligations hereunder. Mark43 may use Vendors to provide certain functions of the Services,
including without limitation, hosting and data analysis. Certain subcontractor or Vendor policies and
terms and conditions of service shall apply to the Services. Such terms, or URL locator addresses for
such terms, will be provided after the Effective Date or in writing from time to time ("Additional
Terms"). If any of the Vendors and/or licensors of the Third-Party Components require Mark43 to
flow down any Additional Terms Subscriber, Subscriber’s use of such Third-Party Components, as
incorporated into the SaaS Service, shall be subject to such Additional Terms. In the event of any
inconsistency or conflict between the Additional Terms and the terms of this Agreement, such
Additional Terms shall govern with respect to Subscriber’s use of the applicable Third Party
Component.
(b)DISCLAIMER REGARDING THIRD PARTY COMPONENTS. MARK43, NOT BEING THE
PROVIDER OR MANUFACTURER OF THE THIRD PARTY COMPONENTS, NOR THE
PROVIDERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY
OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD PARTY COMPONENTS AND
DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
2.11 Third Party Data. Subscriber shall access and use the Third Party Data in accordance with the terms
and conditions of the agreement between the Subscriber and the provider of such Third Party
Data. MARK43, NOT BEING THE PROVIDER OR MANUFACTURER OF THE THIRD PARTY DATA,
NOR THE PROVIDERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED
WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD PARTY DATA AND
DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
2.12 Agreements with Third Party Providers. Subscriber, and not Mark43, is solely responsible for
establishing any required agreement(s) and/or statement(s) of work with Third Party Providers in
connection with the interfaces, and for paying all fees, costs and expenses of Third Party Providers.
2.13 Changes to Services. Mark43 may make changes and Updates to its Services, provided that it does not
materially derogate the overall quality of the Services. Mark43 does not guarantee that the Services are
or will remain compatible with any particular third party software or equipment, and may, upon written
notice, terminate its support for, any software or equipment of Subscriber that Mark43 determines are
incompatible with the operation of the Services.
3. FEES AND PAYMENT TERMS.
3.1 Fees for Mark43 Services. Subscriber will pay Mark43 fees as stated on Schedule A (the “Fees”)
attached hereto in accordance with the payment schedule set forth on Schedule A. All payments of Fees
are non-refundable. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all
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payments will be made in U.S. dollars. Overdue payments will accrue interest at the lesser of one and
one-half percent (1.5%) per month or the maximum allowable interest under Applicable Law, from due
date until paid. Subscriber will pay any sales, use or other tax related to the license and services provided
hereunder, exclusive of income taxes and payroll taxes relating to Mark43’s employees. Subscriber
agrees that its use of and payment for Services constitutes its inspection and acceptance of such Service.
3.2 Third-Party Data and Third-Party Components . Additional fees may apply to the use of certain Third-
Party Data and Third-Party Components, which if provided by Mark43, such fee may be included within
the Fees. Mark43 may pass through any increase in such fees for Third Party Components or Third Party
Data, relating to any existing Services, by giving Subscriber thirty (30) days’ advance notice.
3.3 Taxes. Subscriber will be responsible, as required under applicable law, for identifying and paying all
taxes, including sales, use, excise, and other governmental fees, duties, and charges (and any penalties,
interest, and other additions thereto) that are imposed on Subscriber or Mark43 with respect to the
transactions and payments under this Agreement (excluding taxes based on Mark43’s income or
employment) (“Indirect Taxes”). All Fees are exclusive of Indirect Taxes. If Subscriber is exempt from
paying Indirect Taxes, it shall provide to Mark43 exemption certificates, or a direct payment permit
certificate, or such information to Mark43 as reasonably required and requested to determine whether
Mark43 is obligated to collect Indirect Taxes from Subscriber. If any such taxes are required to be withheld
on any payment, Subscriber will pay such additional amounts as are necessary so that the net amount
received by Mark43 is equal to the amount then due and payable under this Agreement.
4. TERM AND TERMINATION.
4.1 Term.
(a) Initial Term. This Agreement will commence on the Effective Date and end on August 31, 2023, as
set forth on Schedule A, unless sooner terminated in accordance with Section 4.2 (the “Initial Term”).
(b) Renewal Terms. Upon expiration of the Initial Term, this Agreement will automatically renew for no
more than three (3) successive one year periods as set forth on Schedule A (each, a “Renewal
Term”) at the rates set forth on Schedule A, unless either party provides the other with written notice
of non-renewal at least thirty (30) days prior to the expiration of the then-current term. As to
Subscriber, the Sheriff or the Director of Internal Services/Chief Information Officer, or a designee of
one of them, is authorized to provide notice of non-renewal.
4.2 Temporary Suspension and Termination.
(a) Either party may terminate this Agreement upon written notice to the other party, if the other party
breaches a material term of this Agreement and such breach remains uncured for thirty (30) days
after the other party’s receipt of such notice.
(b)If Mark43 reasonably determines that Subscriber’s use of the Services either: (i) fails to comply with
the Restrictions on Use in Section 2.5; (ii) poses a security risk to the Services or any third party, (iii)
creates or is likely to create an adverse impact on Mark43’s systems, the Services, or the systems or
content of any other subscriber; or (iv) subjects Mark43 or its Affiliates to possible liability, then
Mark43 may immediately upon notice temporarily suspend Subscriber’s and any Authorized User’s
right to access any portion or all of the Services, pending remedial action by Subscriber, or after a
period of 30 days, terminate the Services.
4.3 Effect of Termination. In the event of any termination or expiration of this Agreement,
(a) Subscriber will pay Mark43 all amounts payable hereunder as of the effective date of termination or
expiration;
(b) all rights and licenses granted hereunder to Subscriber (as well as all rights granted to any Authorized
Users of Subscriber) will immediately cease, including but not limited to all use of the SaaS Services;
and
(c) Mark43 will provide records to Subscriber in accordance with its transition assistance services
(“Transition Assistance”) as set forth in Schedule B.
(d) Subscriber will, upon written request of Mark43, either return to Mark43 or provide Mark43 with
written certification of the destruction of, all documents, computer files and other materials containing
any Confidential Information of Mark43 that are in Subscriber’s possession or control.
4.4 Survival. The following provisions will survive any termination or expiration of this Agreement: Section
2.8 (“Subscriber Data”), Section 2.10 (“Third Party Components”), Section 2.11 (“Third Party Data”),
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Section 4.3 (“Effect of Termination”), Section 5 (“Confidentiality”), Section 6 (Representations and
Warranties), Section 7 (“Limitation of Liability”), Section 8 (“Indemnification”), Section 9 (“Miscellaneous
Provisions”), Schedule B (“Transition Assistance”) and this Section 4.4 (“Survival”).
5. CONFIDENTIALITY.
5.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information”
means: (a) with respect to Mark43, the SaaS Services, and any and all source code relating thereto, as
well as Documentation and non-public information or material regarding Mark43’s legal or business
affairs, financing, customers, properties or data, and (b) with respect to Subscriber, any non-public
information or material regarding Subscriber's legal or business affairs, financing, customers, properties or
data. Notwithstanding any of the foregoing, Confidential Information does not include information which:
(i) is or becomes public knowledge without any action by, or involvement of, the party to which the
Confidential Information is disclosed (the “Receiving Party”); (ii) is documented as being known to the
Receiving Party prior to its disclosure by the other party (the “Disclosing Party”); (iii) is independently
developed by the Receiving Party without reference or access to the Confidential Information of the
Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on
use or disclosure from a third person who did not receive it, directly or indirectly, from the disclosing party.
5.2 Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any
Confidential Information disclosed by the Disclosing Party before or after the Effective Date: (i) use such
Confidential Information only in connection with the Receiving Party’s performance of this Agreement; (ii)
subject to Section 5.4 below, restrict disclosure of such Confidential Information within the Receiving
Party’s organization to only those of the Receiving Party’s employees and independent contractors who
have a need to know such Confidential Information in connection with the Receiving Party’s performance
of this Agreement and (iii) except as provided herein, not disclose such Confidential Information to any
third party unless authorized in writing by the Disclosing Party to do so.
5.3 Protection of Confidential Information. The Receiving Party will protect the confidentiality of any
Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to
protect its own confidential information (but no less than a reasonable degree of care).
5.4 Employee and Independent Contractor Compliance. The Receiving Party will, prior to providing any
employee or independent contractor access to any Confidential Information of the Disclosing Party, inform
such employee or independent contractor of the confidential nature of such Confidential Information and
require such employee or independent contractor to comply with the Receiving Party’s obligations
hereunder with respect to such Confidential Information.
5.5 Required Disclosures. If a party is requested to disclose any of the other party’s Confidential Information
pursuant to any judicial or governmental order, that party will not disclose the Confidential Information
without first giving the other party written notice of the request and sufficient opportunity to contest the
order, to the extent such notice and opportunity to contest may be lawfully given. If one party is
nonetheless legally compelled to disclose Confidential Information, such party may, without liability
hereunder, disclose to such tribunal only that portion of the Confidential Information which such counsel
advises it is legally required to be disclosed, provided that such party shall use its best efforts to preserve
the confidentiality of the Confidential Information, including, without limitation, by cooperating with the
other party to obtain an appropriate protective order or other reliable assurance that confidential treatment
will be afforded the Confidential Information by such tribunal. Without limiting the foregoing, Subscriber
shall notify Mark43 of any requests for records relating to Mark43 (including, without limitation, user
guides or Documentation, or documents submitted by Mark43 in response to the RFP) within 24 hours of
receipt of the request and provide Mark43 with at least twenty-one (21) days’ notice before disclosing any
such records. Without limiting the foregoing, Subscriber further agrees to indemnify and hold harmless
Mark43, its Affiliates, and each of their officers, directors, managers, shareholders, members and
employees from all claims, liabilities, costs and expenses (including without limitation, reasonable
attorneys’ fees and expert and consulting fees), incurred or expended by Mark43 in connection with a
request for the disclosure of Confidential Information of Mark43 or Subscriber Data.
5.6 Information Collected Through SaaS Services. Subscriber is solely responsible for compliance with
applicable laws related to the manner in which Subscriber chooses to use the Services, including
Subscriber’s transfer and processing of Subscriber Data. Subscriber understands and agrees that when it
uses certain features of the SaaS Services, certain information and data may be collected from Authorized
Users, including monitoring and recording activity, and tracking physical location, which may include
personal identifying information. Subscriber agrees that Mark43 may use such information to (i) provide
more effective Services, (ii) to develop and test its Services, (iii) to aggregate such information and
combine it with that of other Users, and (iv) to use anonymous aggregate data to improve the Services or
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for marketing, research or other business purposes. Provision of Services may involve the disclosure of
such information to Vendors or Affiliates on the condition that they agree to treat such information in a
manner substantially in accordance with this Agreement. Subscriber may revoke its consent to Mark43's
collecting and using such data at any time by written notice to Mark43; provided, however, that Subscriber
agrees that such revocation of consent may impair or render impossible the Subscriber's use of the SaaS
Services.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Power and Authority. Each party represents and warrants that it has the full right, power and authority to
enter into this Agreement and to discharge its obligations hereunder and that the person signing this
Agreement on behalf of the party has the authority to bind that party. Subscriber represents and warrants
that it has obtained, and shall have, all necessary approvals, consents, and authorizations necessary for
procurement under this Agreement and that its obligations under this Agreement do not, and shall not,
exceed any budget authority limitations, during the Term of this Agreement. Subscriber further represents
that it has not received federal funding in connection with procurement under this Agreement.
6.2 No Other Warranties. Use of the SaaS Services is not intended to be a substitute for the professional
judgment of dispatchers, law enforcement officers, or first responders. The SaaS Services do not provide
legal advice. Subscriber shall be responsible for all its own actions or failure to act in connection with the
SaaS Services. Mark43 cannot guarantee that every error in the SaaS Services or problem raised by
Subscriber will be resolved. THE SERVICES, THE THIRD PARTY COMPONENTS, AND THE THIRD
PARTY DATA ARE PROVIDED “AS IS.” MARK43 ASSUMES NO RESPONSIBILITY OR RISK FOR
SUBSCRIBER'S USE OR MISUSE OF, OR FAILURE TO USE, THE INFORMATION PROVIDED
THROUGH THE SAAS SERVICES. MARK43 MAKES NO WARRANTY THAT THE SERVICES WILL BE
COMPLIANT WITH ANY REQUIREMENTS OF CJIS (CRIMINAL JUSTICE INFORMATION SERVICES)
OR CLETS (CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM) OR ANY
EQUIVALENT. DUE TO THE NATURE OF SOFTWARE AND THE INTERNET, MARK43 CANNOT
GUARANTEE THAT EVERY ERROR IN THE SAAS SERVICES OR PROBLEM RAISED BY
SUBSCRIBER WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6
NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SERVICES, THE THIRD
PARTY COMPONENTS, THE THIRD PARTY DATA OR THIS AGREEMENT AND HEREBY DISCLAIMS
ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE,
ERROR-FREE OR UNINTERRUPTED OPERATION OR THAT THE SERVICES, THIRD-PARTY
COMPONENTS AND THIRD-PARTY DATA ARE UP TO DATE, ACCURATE OR COMPLETE, SECURE
FROM LOSS OR DAMAGE, OR FREE OF HARMFUL COMPONENTS, AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. To the extent that a party may not as
a matter of Applicable Law disclaim any implied warranty, the scope and duration of such warranty will be
the minimum permitted under such law.
7. LIMITATION OF LIABILITY.
7.1 Liability Exclusion. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR ANY
OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE FURNISHING,
PERFORMANCE, OR USE, OR FAILURE OF, OF THE SERVICES, THE THIRD PARTY COMPONENTS
OR THE THIRD PARTY DATA PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, PERSONAL INJURY, DEATH, DAMAGE TO PROPERTY, ENVIRONMENTAL DAMAGE,
LOSS OF PROFITS, REVENUES, ANTICIPATED SAVINGS, CUSTOMERS, OPPORTUNITIES,
DAMAGE TO PRIVACY, REPUTATION OR GOODWILL OR UNAVAILABILITY OF THE SERVICES,
REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD
OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
7.2 Limitation of Damages. MARK43’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF
ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT
EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO MARK43 BY
SUBSCRIBER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM
ARISES. MARK43 SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE THIRD-
PARTY COMPONENTS OR THE THIRD-PARTY DATA.
7.3 Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF
LIABILITY SET FORTH IN SECTION 7.1 AND SECTION 7.2 SHALL NOT APPLY TO DAMAGES
8
ARISING FROM EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT (as set
forth in Section 8 below) OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8. INDEMNIFICATION.
8.1 Indemnification by Mark43. Mark43 will defend, indemnify and hold harmless Subscriber and its
Authorized Users, and each of their officers, directors, managers, shareholders, members and employees
from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert
and consulting fees) in connection with any third party claim arising after the Effective Date that the use of
the SaaS Services (excluding any open source software) in accordance with this Agreement infringes or
misappropriates the United States intellectual property rights of third party; provided, however, that the
foregoing obligations shall be subject to Subscriber (a) promptly notifying Mark43 of the claim, (b)
providing Mark43 with reasonable cooperation in the defense of the claim when Subscriber becomes
aware and (c) providing Mark43 with sole control over the defense and negotiations for a settlement or
compromise; provided, however, that Mark43 shall not enter into any such settlement without Subscriber’s
prior written consent, which consent will not be unreasonably withheld, and that Subscriber shall be
permitted to participate in the defense of any such claim, at its own expense, with counsel of its choosing.
Notwithstanding the foregoing, Mark43 shall have no obligation with respect to a third party claim to the
extent the third party claim arises from: (s) claims arising out of acts or omissions of Subscriber or its
users, employees or contractors; (t) claims brought by Subscriber or its Affiliates or Authorized Users; (u)
claims arising from the use of old versions software after receipt of modified or updated versions of
software; (v) claims arising from the use of Third Party Applications, Third Party Components or Third
Party Data; (w) claims arising from any data, product specifications, information or materials provided by
Subscriber hereunder, when used in connection with the SaaS Services or any customization or
configuration made to the SaaS Service proposed by or provided by Subscriber under a Statement of
Work; (x) use of the SaaS Services in combination with modules, apparatus, hardware, software, or
services not authorized by Mark43 or specified in the Documentation for use with the SaaS Services; (y)
use of the SaaS Services in a manner that is not in accordance with this Agreement or the
Documentation; (z) the alteration or modification of the SaaS Services by a party other than Mark43,
unless such alterations and modifications were authorized by Mark43 or specified in the Documentation
for use with the SaaS Services.
8.2 Indemnification by Subscriber. Subscriber will defend, indemnify and hold harmless Mark43 and its
Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any
and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and
consulting fees) in connection with (I) any third party claim arising from or relating to (i) any allegation that
any data, product specifications, information or materials provided by Subscriber hereunder, including,
without limitation, the Subscriber Data and Third Party Applications, when used in connection with the
SaaS Services or any customization or configuration made to the SaaS Service proposed by or provided
by Subscriber under a Statement of Work: (a) infringes or misappropriates any Intellectual Property Rights
of a third party, or (b) violates any Applicable Laws; (ii) the actual or alleged violation of Applicable Law by
Subscriber, any Authorized User, or any Affiliate, employee, agent or independent contractor of
Subscriber; or (iii) Subscriber’s breach of this Agreement; provided, however, that the foregoing
obligations shall be subject to Mark43 (x) promptly notifying Subscriber of the claim, (y) providing
Subscriber with reasonable cooperation in the defense of the claim and (z) providing Subscriber with sole
control over the defense and negotiations for a settlement or compromise; provided, however, that
Subscriber shall not enter into any such settlement without Mark43’s prior written consent, which consent
will not be unreasonably withheld, and that Mark43 shall be permitted to participate in the defense of any
such claim, at its own expense, with counsel of its choosing; (II) disabling a connection to a Third Party
Application at Subscriber’s request; (III) Subscriber's actions or failure to act, resulting in any third-party
claim for personal injury or death, damage to personal property or reputation, environmental damage,
interference with contract or employment, or violation of privacy; (IV) any request pursuant to a judicial or
governmental order or other similar process, including but not limited to a subpoena or FOIA request or
discovery request, seeking the disclosure of any Subscriber Data or other information collected or
maintained by Mark43 in connection with the SaaS Services. For the avoidance of doubt, and without
limiting the foregoing, Subscriber hereby acknowledges that Mark43 shall have no implicit or explicit
obligation to challenge, oppose or defend against any request described in Clause (IV) of this subsection
unless and until Subscriber reaffirms that it will honor its indemnification obligations as provided herein.
9. MISCELLANEOUS.
9.1 Notices. Unless otherwise specified herein, all notices and other communications between the parties
required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by
(i) personal service, (ii) registered or certified mail, postage prepaid, return receipt requested, or (iii)
9
nationally recognized private courier service, to the respective addresses of the parties set forth below or
such other addresses as the respective parties may designate by like notice from time to time. Notices so
given will be effective upon (a) receipt by the party to which notice is given; or (b) on the fifth (5th)
business day following mailing, whichever occurs first:
If to Mark43:
Mark43, Inc.
28 E. 28th Street
12th Floor
New York, NY 10016
Attn: David Jochim
Email: dave@mark43.com
Copy to:
Mark43, Inc.
28 E. 28th Street
12th Floor
New York, NY 10016
Attn: General Counsel
Email: contractnotices@mark43.com
If to Subscriber:
Fresno Sheriff-Coroner Office
2200 Fresno Street
Fresno, CA 93721
Attn: Kal Chakravarthy
Email: kal.chakravarthy@fresnosheriff.org
Copy to:
Fresno Sheriff-Coroner Office
2200 Fresno Street
Fresno, CA 93721
Attn: Thomas Trester
Email: Thomas.trester@fresnosheriff.org
For all claims arising out of or related to this Agreement, nothing in this Section 9.1 establishes, waives, or
modifies any claims presentation requirements or procedures provided by law, including but not limited to
the Government Claims Act (Division 3.6 of Title 1 of the California Government Code, beginning with
section 810).
9.2 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior, written consent of the other party; provided, however, that a party may,
without the consent of the other party, assign or otherwise transfer this Agreement to any of its Affiliates or
to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity
interests or all or substantially all of its assets. Any assignment or other transfer in violation of this Section
9.2 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the
benefit of the Parties hereto and their permitted successors and assigns.
9.3 Dispute Resolution. In the event of a dispute arising under or relating to this Agreement, the parties
agree to finally and exclusively resolve the dispute by binding arbitration governed by the Federal
Arbitration Act ("FAA"). All disputes will be resolved before a neutral arbitrator, whose decision will be
final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may
enforce the arbitrator’s award. The arbitration shall be commenced and conducted under the Commercial
Arbitration Rules of the American Arbitration Association (AAA) then in effect, which is available at the
AAA website www.adr.org. If those rules conflict with this provision, this provision shall control. The
arbitration shall be conducted before a panel of one or more arbitrators. The arbitrator(s) shall be
selected from the AAA’s National Roster of Arbitrators pursuant to agreement between the parties or
through selection procedures administered by the AAA. The arbitration may be conducted in person,
through the submission of documents, by phone or online. If conducted in person, the arbitration shall take
place in New York, New York. The arbitrator(s) shall determine the matters in dispute strictly in
accordance with the terms of this Agreement and the substantive law of the State of New York, excluding
its principles of conflicts of laws, except that the interpretation and enforcement of this arbitration provision
shall be governed by the FAA. The parties agree that New York, New York, USA is the proper forum for
any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision
herein is found to be unenforceable.
The award of the arbitrator(s) shall be the sole and exclusive remedy between the parties regarding any
claims, counterclaims, issues or accountings presented or pled to the arbitrators, provided that THE
ARBITRATOR(S) SHALL HAVE NO AUTHORITY TO AWARD EITHER PARTY ANY SPECIAL,
PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR
LOST PROFITS), OR ATTORNEYS’ FEES OR COSTS. The parties may litigate in court and shall submit
to the personal jurisdiction of the federal and state courts located in New York, New York, USA, for any
action to do the following: (i) to compel arbitration; (ii) to stay proceeding pending arbitration; (iii) seek
injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or
violation of a its copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary
rights, including any provisional relief required to prevent irreparable harm; (iv) to protect or defend the
ownership, validity or enforcement of any intellectual property rights; (v) or to confirm, modify, vacate or
10
enter judgment on the award entered by the arbitrator. The parties agree that New York, NY USA is the
proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the
arbitration provision herein is found to be unenforceable.
The arbitration award and record, and any Confidential Information that is used at or in connection with
the arbitration shall not be disclosed to third parties by the arbitrator(s) or the parties without the prior
written consent of both parties. Neither the fact that the arbitration occurred nor the result of the
arbitration shall be admissible in evidence in a subsequent proceeding brought on the same claims that
were presented at the arbitration.
9.4 Force Majeure. Except with respect to failure to pay any amount due under this Agreement,
nonperformance of either party will be excused to the extent that performance is rendered impossible by
strike, fire, flood, governmental acts that are not caused by or within the control of the nonperforming
party, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the
control and not caused by the negligence of the non-performing party.
9.5 No Waiver. The failure of either party to enforce at any time for any period any provision hereof will not
be construed to be a waiver of such provision or of the right of such party thereafter to enforce each such
provision, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy. No waiver of any rights is to be
charged against any party unless such waiver is in writing signed by an authorized representative of the
party so charged.
9.6 Amendment. No modification, change or amendment to this Agreement shall be effective unless in
writing signed by Subscriber and Mark43. No term included in any invoice, estimate, confirmation,
acceptance, purchase order or any other similar document in connection with this Agreement will be
effective unless expressly stated otherwise in a separate writing signed by Subscriber and Mark43.
9.7 Relationship of the Parties. The relationship of the Parties established by this Agreement is that of
independent contractors and nothing contained herein will be construed to (a) give any party any right or
authority to create or assume any obligation of any kind on behalf of any other party or (b) constitute the
parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common
undertaking.
9.8 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction
will, to the extent the economic benefits conferred thereby to the parties remain substantially unimpaired,
be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions or affecting the validity or enforceability of any of such terms or
provisions in any other jurisdiction.
9.9 Headings. The titles and headings contained in this Agreement are for reference purposes only and shall
not in any manner limit the construction or interpretation of this Agreement.
9.10 Counterparts. This Agreement may be executed, including by electronic signature, in two or more
counterparts, each of which shall be an original and all such counterparts together shall constitute one
and the same instrument. Electronically executed or electronically transmitted (including via facsimile
transmission) signatures have the full force and effect of original signatures.
9.11 Cumulative Remedies. All remedies for breach of this Agreement are cumulative, and may be exercised
concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such
remedy to the exclusion of other remedies.
9.12 Export Compliance. In connection with this Agreement, each Party will comply with all applicable import,
re-import, export, and re-export control laws and regulations, including the Export Administration
Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions
programs implemented by the Office of Foreign Assets Control.
9.13 Compliance with Laws. Each Party shall comply with all Applicable Laws relating or pertaining to the
use of the Services. Subscriber shall ensure that its use of all Subscriber Data complies with all
Applicable Laws relating to the privacy of third parties or the protection of their personal data promulgated
by any governmental, municipal, or legal authority having jurisdiction over Subscriber or the End User
Data covered by this Agreement. Each party shall comply with local anti-bribery laws as well as the U.S.
Foreign Corrupt Practices Act, as well as any other applicable laws and regulations. In connection with its
performance under the Agreement, neither party shall directly or indirectly: (A) offer, pay, promise to pay,
or authorize the payment of any money, gift or other thing of value to any person who is an official, agent,
employee, or representative of any government or instrumentality thereof or to any candidate for political
or political party office, or to any other person while knowing or having reason to believe that all or any
for comp lia nce with this provision by all thi rd parties engaged by it to perform servi ces re lated to this
Agreement an d sha ll require that such third parties agree to comply with all le ga l requirements required of
such party under thi s Agreement.
9 .14 Entire Agreement. This Agreement supersedes all previous understand ings , agreements and
repre se ntation s between the parties, written o r oral and constitutes the entire agreement and understa nding
between the parties with re spect to the subject matter thereof and incorporates all representations ,
warranties , covenants, co mm itments and und erstanding s on which the y have rel ied in entering into this
Ag reeme nt, and , except as provided for herein , neither party makes any covenant or other com mitment
co ncerning its future action nor does either party make any promises , representations , conditions ,
provisions or terms re la ted thereto .
IN WITNESS WHEREOF , the Partie s have caused thi s Agreement (including the
Addendum attached hereto) to be executed by their duly authorized repre sentat ives .
MAA=~--~--
By :_~~--~-----c:::-=--==--
Name: Scott Crouch
Title : Chief Exec utive Officer
Date :_/0~/~3 ~J//~-/: ____ _
// ·01 By : ~Q~-1
Name: Caitlin O'Neil
Title : VP Finance
Date :----=-f ----'-0 (_3 ----'-I /_f 9--'-------
11
SUBSCRIBER (COUNTY OF FRESNO)
{Lfj_ By : _____________ _
Name : Brian Pacheco
Title : Chairman, Board of Supervisors of the
County of Fresno
Date: l I -l Y -i I
Attest :
Bernice E Seidel
Clerk to the Board o f Supervisors
County of Fre sno, State of California
By : ~~ e:;_~ C>f>
Deputy