HomeMy WebLinkAboutFully Executed A-24-125 Priority Dispatch.pdf Agreement No. 24-125
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated March 19, 2024 and is between
3 Medical Priority Consultants, Inc., dba Priority Dispatch, a Utah corporation ("Contractor"), and
4 the County of Fresno, a political subdivision of the State of California ("County").
5 Recitals
6 A. The County has a need for licensure renewal, maintenance, and support for their
7 Medical Priority Dispatch System ("MPDS") which is made up of medical priority dispatch
8 software (ProQA), reporting system software ("Aqua"), and "Card Set," each of which are
9 defined in Exhibit A and Exhibit F.
10 B. The Contractor represents to the County that the Contractor is able to provide the
11 County with maintenance and support for MPDS.
12 C. The County desires to engage the Contractor to provide maintenance and support for
13 MPDS, pursuant to the terms and conditions of this Agreement.
14 The parties therefore agree as follows:
15 Article 1
16 Contractor's Services
17 1.1 Scope of Services. The Contractor shall perform all of the services provided in
18 Exhibit A and Exhibit F to this Agreement.
19 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
20 able to perform all of the services provided in this Agreement.
21 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
22 applicable federal, state, and local laws and regulations in the performance of its obligations
23 under this Agreement, including but not limited to workers compensation, labor, and
24 confidentiality laws and regulations.
25 Article 2
26 County's Responsibilities
27 2.1 The County shall provide a County representative to represent the County, who
28 will work with the Contractor to carry out the Contractor's obligations under this Agreement.
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1 The County representative will be the County's Internal Services Department Director/Chief
2 Information Officer and/or their designee.
3 2.2 The County shall be accountable for the responsibilities as set forth in Exhibit A
4 to this Agreement.
5 Article 3
6 Compensation, Invoices, and Payments
7 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation
8 for the performance of its services under this Agreement as described in Exhibit B to this
9 Agreement.
10 Maximum Compensation. The maximum compensation payable to the Contractor
11 under this Agreement for the first year is $132,400. The maximum compensation payable to
12 the Contractor under this Agreement for the second year is $132,400. The maximum
13 compensation payable to the Contractor under this Agreement for the third year is $132,400.
14 The maximum compensation payable to the Contractor is $397,200 for the initial three-year
15 term of this Agreement. Upon utilization of the first one-year extension option ("Year 4"), if
16 any, this maximum shall increase by $132,400. Upon utilization of the final one-year
17 extension option, if any, this maximum shall increase by an additional $132,400 ("Year 5").
18 The total maximum compensation payable to the Contractor under this Agreement is
19 $662,000 for the entire potential five-year term as set forth in Exhibit B. In the event the total
20 maximum compensation amount for each year is not fully expended, the remaining unspent
21 funding amounts shall roll over to each subsequent term's established maximum
22 compensation. The Contractor acknowledges that the County is a local government entity,
23 and does so with notice that the County's powers are limited by the California Constitution
24 and by State law, and with notice that the Contractor may receive compensation under this
25 Agreement only for services performed according to the terms of this Agreement and while
26 this Agreement is in effect, and subject to the maximum amount payable under this section.
27 The Contractor further acknowledges that County employees have no authority to pay the
28 Contractor except as expressly provided in this Agreement.
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1 3.2 Invoices. The Contractor shall submit monthly invoices referencing the provided
2 agreement number to the County of Fresno, Internal Services Department, Attention:
3 Business Office, 333 W. Pontiac Way, Clovis, CA 93612,
4 ISDBusinessOffice@fresnocountyca.gov. The Contractor shall submit each invoice within 60
5 days after the month in which the Contractor performs services and in any case within 60
6 days after the end of the term or termination of this Agreement.
7 3.3 Payment. The County shall pay each correctly completed and timely submitted
8 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
9 address specified in the invoice.
10 3.4 Incidental Expenses. The Contractor is solely responsible for all of its costs and
11 expenses that are not specified as payable by the County under this Agreement.
12 Article 4
13 Term of Agreement
14 4.1 Term. This Agreement is effective on March 25, 2024 and terminates on March
15 24, 2027 ("Initial Term"), except as provided in section 4.2, "Extension," or Article 6,
16 "Termination and Suspension," below.
17 4.2 Extension. The term of this Agreement may be extended for no more than two,
18 one-year periods only upon written approval of both parties at least 30 days before the first
19 day of the next one-year extension period. The Director of Internal Services/Chief
20 Information Officer or his or her designee is authorized to sign the written approval on behalf
21 of the County based on the Contractor's satisfactory performance. The extension of this
22 Agreement by the County is not a waiver or compromise of any default or breach of this
23 Agreement by the Contractor existing at the time of the extension whether or not known to
24 the County.
25 Article 5
26 Notices
27 5.1 Contact Information. The persons and their addresses having authority to give
28 and receive notices provided for or permitted under this Agreement include the following:
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For the County:
2 Director, Department of Public Health
County of Fresno
3 1221 Fulton Street
Fresno, CA 93721
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For the Contractor:
5 Priority Dispatch Corp
Attn: Legal Dept.
6 110 S Regent Street, Suite 500
Salt Lake City, UT 84111
7 ;snntr.h nQt
5.2 Change of Contact Information. Either party may change the information in
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section 5.1 by giving notice as provided in section 5.3.
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5.3 Method of Delivery. Each notice between the County and the Contractor
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provided for or permitted under this Agreement must be in writing, state that it is a notice
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provided under this Agreement, and be delivered either by personal service, by first-class
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United States mail, by an overnight commercial courier service, or by Portable Document
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Format (PDF) document attached to an email.
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(A) A notice delivered by personal service is effective upon service to the recipient.
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(B) A notice delivered by first-class United States mail is effective three County
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business days after deposit in the United States mail, postage prepaid, addressed to the
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recipient.
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(C)A notice delivered by an overnight commercial courier service is effective one
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County business day after deposit with the overnight commercial courier service,
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delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
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the recipient.
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(D)A notice delivered by PDF document attached to an email is effective when
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transmission to the recipient is completed (but, if such transmission is completed outside
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of County business hours, then such delivery is deemed to be effective at the next
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beginning of a County business day), provided that the sender maintains a machine
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record of the completed transmission.
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5.4 Claims Presentation. For all claims arising from or related to this Agreement,
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nothing in this Agreement establishes, waives, or modifies any claims presentation
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1 requirements or procedures provided by law, including the Government Claims Act (Division
2 3.6 of Title 1 of the Government Code, beginning with section 810).
3 Article 6
4 Termination and Suspension
5 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
6 contingent on the approval of funds by the appropriating government agency. If sufficient
7 funds are not allocated, then the County, upon at least 30 days' advance written notice to
8 the Contractor, may:
9 (A) Modify the services provided by the Contractor under this Agreement; or
10 (B) Terminate this Agreement.
11 6.2 Termination for Breach.
12 (A) Upon determining that a breach (as defined in paragraph (C) below) has
13 occurred, the County may give written notice of the breach to the Contractor. The written
14 notice may suspend performance under this Agreement, and must provide at least 30
15 days for the Contractor to cure the breach.
16 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
17 time stated in the written notice, the County may terminate this Agreement immediately.
18 (C) For purposes of this section, a breach occurs when, in the determination of the
19 County, the Contractor has:
20 (1) Obtained or used funds illegally or improperly;
21 (2) Failed to comply with any part of this Agreement;
22 (3) Submitted a substantially incorrect or incomplete report to the County; or
23 (4) Improperly performed any of its obligations under this Agreement.
24 6.3 Termination without Cause. In circumstances other than those set forth above,
25 the County may terminate this Agreement by giving at least 30 days advance written notice
26 to the Contractor.
27 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the
28 County under this Article 6 is without penalty to or further obligation of the County.
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1 6.5 County's Rights upon Termination. Upon termination for breach under this
2 Article 6, the County may demand repayment by the Contractor of any monies disbursed to
3 the Contractor under this Agreement that, in the County's sole judgment, were not expended
4 in compliance with this Agreement. The Contractor shall promptly refund all such monies
5 upon demand. This section survives the termination of this Agreement.
6 Article 7
7 Independent Contractor
8 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
9 agents, employees, and volunteers, is at all times acting and performing as an independent
10 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
11 venturer, partner, or associate of the County.
12 7.2 Verifying Performance. The County has no right to control, supervise, or direct
13 the manner or method of the Contractor's performance under this Agreement, but the
14 County may verify that the Contractor is performing according to the terms of this
15 Agreement.
16 7.3 Benefits. Because of its status as an independent contractor, the Contractor has
17 no right to employment rights or benefits available to County employees. The Contractor is
18 solely responsible for providing to its own employees all employee benefits required by law.
19 The Contractor shall save the County harmless from all matters relating to the payment of
20 the Contractor's employees, including compliance with Social Security withholding and all
21 related regulations.
22 7.4 Services to Others. The parties acknowledge that, during the term of this
23 Agreement, the Contractor may provide services to others unrelated to the County.
24 Article 8
25 Indemnity and Defense
26 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
27 County (including its officers, agents, employees, and volunteers) against all claims,
28 demands, injuries, damages, costs, expenses (including attorney fees and costs), fines,
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1 penalties, and liabilities of any kind to the County, the Contractor, or any third party that
2 arise from or relate to the performance or failure to perform by the Contractor (or any of its
3 officers, agents, subcontractors, or employees) under this Agreement. The County may
4 conduct or participate in its own defense without affecting the Contractor's obligation to
5 indemnify and hold harmless or defend the County. For the sake of clarification, it is
6 understood that Contractor does not guarantee, nor indemnify, nor shall the Contractor hold
7 any party harmless to any use of or reliance upon the dispatch protocols or licensed
8 products provided by Contractor under this agreement.
9 8.2 Survival. This Article 8 survives the termination of this Agreement.
10 Article 9
11 Insurance
12 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to
13 this Agreement.
14 Article 10
15 Inspections, Audits, and Public Records
16 10.1 Inspection of Documents. The Contractor shall make available to the County,
17 and the County may examine at any time during business hours and as often as the County
18 deems necessary, all of the Contractor's records and data with respect to the matters
19 covered by this Agreement, excluding attorney-client privileged communications. The
20 Contractor shall, upon request by the County, permit the County to audit and inspect all of
21 such records and data to ensure the Contractor's compliance with the terms of this
22 Agreement.
23 10.2 State Audit Requirements. If the compensation to be paid by the County under
24 this Agreement exceeds $10,000, the Contractor is subject to the examination and audit of
25 the California State Auditor, as provided in Government Code section 8546.7, for a period of
26 three years after final payment under this Agreement. This section survives the termination
27 of this Agreement.
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1 10.3 Public Records. The County is not limited in any manner with respect to its
2 public disclosure of this Agreement or any record or data that the Contractor may provide to
3 the County. The County's public disclosure of this Agreement or any record or data that the
4 Contractor may provide to the County may include but is not limited to the following:
5 (A) The County may voluntarily, or upon request by any member of the public or
6 governmental agency, disclose this Agreement to the public or such governmental
7 agency.
8 (B) The County may voluntarily, or upon request by any member of the public or
9 governmental agency, disclose to the public or such governmental agency any record or
10 data that the Contractor may provide to the County, unless such disclosure is prohibited
11 by court order.
12 (C)This Agreement, and any record or data that the Contractor may provide to the
13 County, is subject to public disclosure under the Ralph M. Brown Act (California
14 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
15 (D)This Agreement, and any record or data that the Contractor may provide to the
16 County, is subject to public disclosure as a public record under the California Public
17 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
18 with section 7920.200) ("CPRA").
19 (E) This Agreement, and any record or data that the Contractor may provide to the
20 County, is subject to public disclosure as information concerning the conduct of the
21 people's business of the State of California under California Constitution, Article 1,
22 section 3, subdivision (b).
23 (F) Any marking of confidentiality or restricted access upon or otherwise made with
24 respect to any record or data that the Contractor may provide to the County shall be
25 disregarded and have no effect on the County's right or duty to disclose to the public or
26 governmental agency any such record or data.
27 10.4 Public Records Act Requests. If the County receives a written or oral request
28 under the CPRA to publicly disclose any record that is in the Contractor's possession or
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1 control, and which the County has a right, under any provision of this Agreement or
2 applicable law, to possess or control, then the County may demand, in writing, that the
3 Contractor deliver to the County, for purposes of public disclosure, the requested records
4 that may be in the possession or control of the Contractor. Within five business days after
5 the County's demand, the Contractor shall (a) deliver to the County all of the requested
6 records that are in the Contractor's possession or control, together with a written statement
7 that the Contractor, after conducting a diligent search, has produced all requested records
8 that are in the Contractor's possession or control, or (b) provide to the County a written
9 statement that the Contractor, after conducting a diligent search, does not possess or
10 control any of the requested records. The Contractor shall cooperate with the County with
11 respect to any County demand for such records. If the Contractor wishes to assert that any
12 specific record or data is exempt from disclosure under the CPRA or other applicable law, it
13 must deliver the record or data to the County and assert the exemption by citation to specific
14 legal authority within the written statement that it provides to the County under this section.
15 The Contractor's assertion of any exemption from disclosure is not binding on the County,
16 but the County will give at least 10 days' advance written notice to the Contractor before
17 disclosing any record subject to the Contractor's assertion of exemption from disclosure.
18 The Contractor shall indemnify the County for any court-ordered award of costs or attorney's
19 fees under the CPRA that results from the Contractor's delay, claim of exemption, failure to
20 produce any such records, or failure to cooperate with the County with respect to any
21 County demand for any such records.
22 Article 11
23 Disclosure of Self-Dealing Transactions
24 11.1 Applicability. This Article 11 applies if the Contractor is operating as a
25 corporation, or changes its status to operate as a corporation.
26 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to
27 a self-dealing transaction, he or she shall disclose the transaction by completing and signing
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1 a "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it
2 to the County before commencing the transaction or immediately after.
3 11.3 Definition. "Self-dealing transaction" means a transaction to which the
4 Contractor is a party and in which one or more of its directors, as an individual, has a
5 material financial interest.
6 Article 12
7 General Terms
8 12.1 Modification. Except as provided in Article 6, "Termination and Suspension," this
9 Agreement may not be modified, and no waiver is effective, except by written agreement
10 signed by both parties. The Contractor acknowledges that County employees have no
11 authority to modify this Agreement except as expressly provided in this Agreement.
12 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
13 under this Agreement without the prior written consent of the other party.
14 12.3 Governing Law. The laws of the State of California govern all matters arising
15 from or related to this Agreement.
16 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
17 County, California. The Contractor consents to California jurisdiction for actions arising from
18 or related to this Agreement, and, subject to the Government Claims Act, all such actions
19 must be brought and maintained in Fresno County.
20 12.5 Construction. The final form of this Agreement is the result of the parties'
21 combined efforts. If anything in this Agreement is found by a court of competent jurisdiction
22 to be ambiguous, that ambiguity shall not be resolved by construing the terms of this
23 Agreement against either party.
24 12.6 Days. Unless otherwise specified, "days" means calendar days.
25 12.7 Headings. The headings and section titles in this Agreement are for convenience
26 only and are not part of this Agreement.
27 12.8 Severability. If anything in this Agreement is found by a court of competent
28 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement
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1 remains in effect, and the parties shall make best efforts to replace the unlawful or
2 unenforceable part of this Agreement with lawful and enforceable terms intended to
3 accomplish the parties' original intent.
4 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor
5 shall not unlawfully discriminate against any employee or applicant for employment, or
6 recipient of services, because of race, religious creed, color, national origin, ancestry,
7 physical disability, mental disability, medical condition, genetic information, marital status,
8 sex, gender, gender identity, gender expression, age, sexual orientation, military status or
9 veteran status pursuant to all applicable State of California and federal statutes and
10 regulation.
11 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or
12 obligation of the Contractor under this Agreement on any one or more occasions is not a
13 waiver of performance of any continuing or other obligation of the Contractor and does not
14 prohibit enforcement by the County of any obligation on any other occasion.
15 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire
16 agreement between the Contractor and the County with respect to the subject matter of this
17 Agreement, and it supersedes all previous negotiations, proposals, commitments, writings,
18 advertisements, publications, and understandings of any nature unless those things are
19 expressly included in this Agreement. If there is any inconsistency between the terms of this
20 Agreement without its exhibits and the terms of the exhibits, then the inconsistency will be
21 resolved by giving precedence first to the terms of this Agreement without its exhibits, and
22 then to the terms of the exhibits.
23 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
24 create any rights or obligations for any person or entity except for the parties.
25 12.13 Authorized Signature. The Contractor represents and warrants to the County
26 that:
27 (A) The Contractor is duly authorized and empowered to sign and perform its
28 obligations under this Agreement.
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1 (B) The individual signing this Agreement on behalf of the Contractor is duly
2 authorized to do so and his or her signature on this Agreement legally binds the
3 Contractor to the terms of this Agreement.
4 12.14 Electronic Signatures. The parties agree that this Agreement may be executed
5 by electronic signature as provided in this section.
6 (A) An "electronic signature" means any symbol or process intended by an individual
7 signing this Agreement to represent their signature, including but not limited to (1) a
8 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
9 electronically scanned and transmitted (for example by PDF document) version of an
10 original handwritten signature.
11 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
12 equivalent to a valid original handwritten signature of the person signing this Agreement
13 for all purposes, including but not limited to evidentiary proof in any administrative or
14 judicial proceeding, and (2) has the same force and effect as the valid original
15 handwritten signature of that person.
16 (C)The provisions of this section satisfy the requirements of Civil Code section
17 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
18 Part 2, Title 2.5, beginning with section 1633.1).
19 (D) Each party using a digital signature represents that it has undertaken and
20 satisfied the requirements of Government Code section 16.5, subdivision (a),
21 paragraphs (1) through (5), and agrees that each other party may rely upon that
22 representation.
23 (E) This Agreement is not conditioned upon the parties conducting the transactions
24 under it by electronic means and either party may sign this Agreement with an original
25 handwritten signature.
26 12.15 Counterparts. This Agreement may be signed in counterparts, each of which is
27 an original, and all of which together constitute this Agreement.
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1 12.16 Agent for Service of Process. The Contractor represents to the County that the
2 Contractor's agent for service of process in California, and that such agent's address for
3 receiving such service of process in California, which information the Contractor shall
4 maintain with the office of the California Secretary of State, is as follows:
5 Medical Priority Consultants, Inc.
6 1325 J ST STE 1550
7 Sacramento, CA 95814
8 The Contractor further represents to the County that if the Contractor changes its agent for
9 service of process in California, or the Contractor's agent for service of process in California
10 changes its address for receiving such service of process in California, which changed
11 information the Contractor shall maintain with the office of the California Secretary of State, the
12 Contractor shall give the County written notice thereof within five (5) calendar days thereof
13 pursuant to Article 5.
14 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
Medical Priority Consultants, Inc., dba Priority COUNTY OF FRESNO
3 Dispatch Corp.
5 Nathan Magsig, Chairman of the Board of
Simon Cantarero—General Counsel Corp. Supervisors of the County of Fresno
6 Secretary
Attest:
7 110 S Regent Street, Suite 500 Bernice E. Seidel
Salt Lake City, UT 84111 Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By: _
10 Deputy
11 For accounting use only:
12 Org No.:56201693
Account No.:7309
13 Fund No.:0001
Subclass No.:10000
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Exhibit A
1 Scope of Services
2 I. Definitions
3 Acceptance Criteria: The performance and operating specifications which the System
4 must meet at a minimum, as set out of referred to in this Agreement.
5 Acceptance Test: The process of testing a specific function or functions to determine if
6 the operation or operations are as stated in this Agreement.
7 AQUA: Reporting tool for ProQA which allows tracking of compliance.
8 Card Set: Manual flip cards that contains questions and resulting determinates for the
9 problem nature.
10 Change Control Process: Process used by the County to inform staff of new or
11 updates production use systems.
12 County System Hardware: The central processing units owned or leased by the
13 County for which the County is licensed to use the System Software, any back-up equipment for
14 such central processing units and any peripheral hardware such as terminals, printers, and
15 personal computers as described in the Agreement.
16 County System Software: The operating system and database software installed on
17 the County system Hardware.
18 License: The meaning assigned to the term "License" as defined in Section IIA of this
19 Agreement and the rights and obligations it creates under the laws of the United States of
20 America and the State of California including without limitation, copyright, and intellectual
21 property law.
22 Monies: The term "Monies", "Charges", "Price", and "Fees" will be considered
23 equivalent.
24 ProQA: Software that integrates with the VisiCAD System and provides the dispatch the
25 questions to ask to determine the problem nature of the 911 caller.
26 Public Records: Public Records includes any writing containing information relating to
27 the conduct of the public's business prepared, owned, used, or retained by any state or local
28 agency regardless of physical form or characteristics.
A-1
Exhibit A
1 Supplier: The terms "Supplier", "Vendor", and "Priority Dispatch Corporation" all refer to
2 the Contractor and are considered to be equivalent throughout this Agreement.
3 System: The System Software and System Documentation, collectively. Reference to
4 the "System" shall include any component thereof. All modifications and enhancements to the
5 System shall be deemed to be part pf the System as defined herein and shall be subject to all
6 terms and conditions set forth herein. The System consists of MPDS which supports the Fresno
7 County Department of Public Health, all interfaces, and third-party software required for the
8 System to function.
9 System Documentation: The documentation relating to the System Software, and all
10 manuals, reports, brochures, sample runs, specifications, and other materials comprising such
11 documentation provided by the Contractor in connection with the System Software pursuant to
12 this Agreement.
13 System Operation: The general operation of the County's hardware and all software
14 including, but not limited to, system restarts, configuration and operation of the system
15 peripherals (such as printers, modems, and terminals), installation of new software releases and
16 other related activities.
17 System Installation: All software has been delivered, has been physically loaded on a
18 computer, and the County has successfully executed program sessions.
19 System Software: That certain computer software described in this Agreement provided
20 by the Contractor, and all interfaces, coding, tapes, disks, modules, and similar materials
21 comprising such software on or which it is stores. System Software shall not include operating
22 system software.
23 User: The terms "User", "Customer", and "Licensee" all refer to the County and are
24 considered to be equivalent throughout this Agreement.
25 II. Obligations of the Contractor
26 A. Software License:
27 See End User License Agreement (EULA) attached hereto as Exhibit F and
28 incorporated herein by reference.
A-2
Exhibit A
1 B. Services: The Contractor shall provide to the County MPDS System
2 Documentation. Additional documentation may be provided. The Contractor
3 shall provide new System Document corresponding to all new Software
4 Upgrades. The County may print additional copies of all documentation. All
5 System Documentation is to be used by the County only for the purposes
6 identified within this Agreement.
7 C. System Maintenance and Support: System maintenance and support
8 includes System Updates as they are released by the Contractor, including
9 Updates as required as a result of regulatory changes. The first day of
10 production use will be identified by the County and communicated to the
11 Contractor. The Contractor will support day-to-day operation of the System
12 including the following services:
13 i. Support Hours/Scope: Provide unlimited technical assistance by
14 phone during normal coverage hours (7:00 AM to 6:00 PM Pacific
15 Standard Time [PST], Monday through Friday, except on the
16 Contractor and the County holidays), toll-free telephone assistance
17 to keep the System in, or restored tom normal operating condition.
18 The object of this support will be to answer specific questions
19 related to the System Software and the application thereof. Support
20 provided under this Agreement does not include training of new
21 personnel (after initial staff is trained), operation of hardware, or
22 solving other hardware/software problems unrelated to the System
23 Software.
24 ii. Support Response: During the term of this Agreement, the
25 Contractor will (a) correct any error or malfunctions in the System as
26 supplied by the Contractor which prevents it from operating in
27 conformance with the specifications set forth in this Agreement or
28 (b) provide a commercially reasonable alternative that will confirm to
A-3
Exhibit A
1 the specification set forth in this Agreement. If analysis by the
2 Contractor indicates a reported problem is caused by a reproducible
3 error or malfunction in the then-current release of the System
4 Software as supplied and maintained by the Contractor that
5 significantly impacts effective use of the System by the County, the
6 Contractor will, if the System is inoperable, as reported by the
7 County, provide continuous effort to correct the error or to resolve
8 the problem by providing a circumvention.
9 In such cases, the Contractor will provide the County with corrective
10 information, such as corrective documentation and/or program code.
11 The Contractor will endeavor to respond to the County's service
12 request no later than four (4) business hours from the time a call has
13 been received by the Contractor. In the event a person with the
14 necessary expertise is not available when the call is received, the
15 Contractor will endeavor to respond to the service request no later
16 than within one (1) business day.
17 iii. Remote Virtual Private Network (VPN) Diagnostics): Remote
18 VPN Diagnostic Support includes:
19 • Diagnostic or corrective actions necessary to restore proper
20 MPDS operation.
21 • Diagnostic actions which attempt to identify the cause of
22 system problems.
23 . Correction of data file problems.
24 . Go to Meetings, Go to Assist, or the like.
25 . The Contractor product specialist will provide diagnostics via
26 VPN on MPDS, the County will provide any required hardware
27 and equipment necessary at the County for the Contractor
28 VPN support.
A-4
Exhibit A
1 D. Additional System Maintenance Services: The Contractor may provide
2 additional maintenance services ("Additional License/Service Fees" or
3 "Additional Services Fees") at an additional charge. Charges will be as
4 identified in Section 6 of this Agreement or, if not included in this Agreement,
5 charges will be at current prices in effect at the time goods or services are
6 provided. Any Additional Maintenance and Support Services requested by the
7 County and determined by the Contractor to be billable by the Contractor
8 must be identified as a chargeable service prior to the service being
9 performed and must be approved in writing in advance by the County
10 Contract Administrator. Additional Maintenance Services include, but are not
11 limited to, the following:
12 i. Training: Additional Training at a County facility is available upon
13 request by the County at an additional charge under the terms of
14 this Agreement. Requests for additional training will be reviewed by
15 the Contractor and must be requested in writing in advance by the
16 County Contract Administrator. Charges will be at rates identified in
17 Exhibit B of this Agreement.
18 ii. Data and System Corrections: Data and System Corrections
19 include any corrective actions accomplished by the Contractor on-
20 site or via VPN which are necessary due to the County errors or
21 unauthorized source code or data access by the County.
22 Unauthorized access to the data is defined as any County editing of
23 data through other than normal system usage as defined in System
24 Documentation. Unauthorized access to source code is defined as
25 any County access whatsoever to system source code. Services
26 provided by the Contractor are not billable when they result from
27 errors caused by MPDS or instruction provided by the Contractor.
28
A-5
Exhibit A
1 iii. Customer Site Visits: Site visits to County sites, as may be
2 requested in writing by the County and that are within the scope of
3 the project services, are available for reasons such as, but not
4 limited to, (a) additional System training on hardware or software
5 usage; (b) resolution of System difficulties not resulting from actions
6 by, or otherwise the responsibility of the Contractor (as determined
7 by mutual agreement between the Contractor and the County; (c)
8 installation of Software Releases; and (d) assistance in equipment
9 maintenance, movement, or diagnosis. Site visits outside the scope
10 of the project services will be reviewed by the Contractor and must
11 be requesting in writing in advance by the County Contract
12 Administrator. Charges will be at rates identified in this Agreement
13 Exhibit B.
14 E. Contractor Project Coordinator.: Upon execution of this Agreement, The
15 Contractor shall appoint a Project Coordinator who will act as the primary
16 contact person to interface with the County for implementation, maintenance
17 and support of MPDS.
18 F. System Updates and New Products
19 i. System Updates: From time to time the Contractor will develop and
20 provide System Updates to the County for the County's licensed the
21 Contractor software. System Updates shall be subject to the terms
22 and conditions of this Agreement and shall be deemed licensed
23 System Software hereunder and will be made available to the
24 County as set forth in Exhibit A. System Updates will be made
25 available to the County at the discretion of the Contractor but will not
26 be unreasonably withheld.
27 ii. New Products: The Contractor may from time to time release new
28 software with capabilities substantially different from or greater than
A-6
Exhibit A
1 the System Software ("New Products") and which therefore do not
2 constitute System Updates. These New Products will be made
3 available to the County at a cost not to exceed The Contractor's
4 then standard rates for customers similarly situated.
5 iii. Operating System Updates: The application must run on an
6 operating system (O/S) that is consistently and currently supported
7 by the operating system vendor. Applications under maintenance
8 are expected to always be within 1 year of current in regards to the
9 O/S. Outdated or unsupported O/S will not be implemented on the
10 production network. With approval from the Contractor, The County
11 will apply patches to both the operating system, and security
12 subsystems as releases are available from operating system
13 vendors. The application is expected to perform in this environment.
14 The Contractor is expected to keep their software within 1 year of
15 current in order to operate in this environment. These patches
16 include critical 0/S updates and security patches.
17 iv. Anti-Virus Management: The County will actively run anti-virus
18 management, where appropriate, on all application servers and
19 PCs. The application is expected to perform adequately while anti-
20 virus management is active. While installing or implementing the
21 Software Systems it may become necessary for the County to turn
22 off or shut down its anti-virus program to adequately allow the
23 Software Systems to install.
24 V. Adhere to the Change Control Process: The Contractor must
25 adhere to the County's Change Control Process, which shall be
26 provided to the Contractor in writing. The County employs a
27 procedure to implement updates, upgrades, and version releases to
28 a system that is in production use. This forum allows the County's
A-7
Exhibit A
1 Internal Services Department, Information Technology Services
2 Division (ISD-IT) to inform staff(Help Desk, Network, Server,
3 Database, Security, and Analysts) of upcoming changes to a
4 production system. The Contractor must inform ISD-IT a minimum
5 of one (1) week prior to any planned, non-emergency changes so
6 that the Change Control Process may be followed. In order to inform
7 ISD-IT, ISD-IT must sign up for notifications as set forth in
8 Attachment.
9 III. Obligations of the County
10 A. County Contract Administrator: The County shall appoint the Chief
11 Information Officer (CIO) or his designee as the County's Contract
12 Administrator with full authority to deal with the Contractor in all matters
13 concerning this Agreement.
14 B. Safeguarding System Software: The County will follow its present practices
15 to safeguard System Software delivered to the County by the Contractor. A
16 copy of the County's "Information Technology (IT) Standards and
17 Preferences" will be made available upon request.
18 C. Backup and Recovery Management
19 i. The County utilizes a backup and recovery system written and
20 maintained by Commvault Systems. This application requires a
21 backup agent to run on the server.
22 ii. The County will provide the Contractor with an account with
23 approximate administrative rights to administer the application. The
24 account password is expected to periodically expire.
25 iii. In order for the application to run on the County supported servers,
26 the application must not require the users to have administrative
27 rights on the servers.
28
A-8
Exhibit A
1 iv. The County, at all times, during and after the performance of the
2 installation of the System Software, is responsible for maintaining
3 adequate backups to protect against loss of data.
4 D. System Hardware and System Software: The County will at its own
5 expense provide and properly maintain and update on an on-going basis all
6 necessary the County System Software and the County System Hardware
7 required to operate MPDS. Said County System Software and the County
8 System Hardware shall meet or exceed the Contractor's recommendations.
9 As part of the County's responsibility for computer infrastructure, the County
10 is responsible for ensuring that data is secure and protected at all times. The
11 Contractor is not responsible for and cannot be held liable for inadvertent
12 data disclosure or theft from the County facilities.
13 E. County Project Manager: Upon execution of this Agreement, the County's
14 Contract Administrator shall designate one individual from ISD-IT who will
15 function as Project Manager with responsibility for day-to-day management of
16 the project for implementation of MPDS. The Project Manager and the
17 County personnel shall have the necessary and appropriate training and
18 experience to implement the terms of this Agreement. The County
19 acknowledges the Contractor's reliance on same.
20 F. Other County Obligations
21 i. The County agrees to comply with the terms of Exhibit F, attached
22 hereto and by this reference incorporated herein.
23 ii. Technical assistance from the County's Information Technology staff
24 will be provided during the performance of the installation of the
25 System Software. In particular, the County will provide:
26 • Network connectivity and troubleshooting assistance.
27 • Ability to monitor network traffic and isolate bottlenecks.
28
A-9
Exhibit A
1 . Technical assistance concerning the integration with existing
2 County systems (if applicable).
3 • Expertise to handle issues with PCs, printers, and cabling
4 before, during, and after rollout.
5 iii. Unless otherwise specified, for third-party software, the Contractor
6 shall provide standard documentation in electronic form (via the
7 Internet or Filet Transfer Protocol ("FTP")).
8 iv. The System being provided runs in a Local Area Network and Web
9 environment. As such, the performance of the System is directly
10 related to, among other things: available network bandwidth, and
11 the performance of other applications. For this reason, the
12 Contractor makes no guarantees as to System response time.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A-10
Exhibit B
1 Compensation
2 The Contractor will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
4 except as expressly provided in this Exhibit B.
5 Year Item Total Cost per Year
6 Year 1 Priority Dispatch System Annual Maintenance (P) $92,400
7 License Renewal, Service, & Support
8 Year 2 Priority Dispatch System Annual Maintenance (P) $92,400
9 License Renewal, Service, & Support
10 Year 3 Priority Dispatch System Annual Maintenance (P) $92,400
11 License Renewal, Service, & Support
12 Year 4 Priority Dispatch System Annual Maintenance (P) $92,400
13 License Renewal, Service, & Support
14 Year 5 Priority Dispatch System Annual Maintenance (P) $92,400
15 License Renewal, Service, & Support
16
17 Pricing for Optional Products/Services (Not to Exceed 40k per year)
18 Item Price per Item
19 ProQA License Production $ 4,675
20 ProQA Training License $ 2,350
21 AQUA License $2,750
22 Cardsets $545
23 ESP— ProQA License Production $1,400
24 ESP--AQUA $0.00
25 ESP-- Cardset $0.00
26
Training Onsite (Daily Rate) $2,750
27 All Software Updates $0.00
28
B-1
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions
that they are a party to while providing goods, performing services, or both for the County. A
self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
The definition above will be used for purposes of completing this disclosure form.
Instructions
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: N/A Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, the Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must
be prior to the date on which services began under this Agreement; (2)the Contractor
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Contractor shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
(F) Excess/Umbrella Insurance: A combination of primary and excess/umbrella insurance
may be used by the Contractor to meet the required limits of insurance.
(G)Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
D-1
Exhibit D
(H) Cyber Liability. Cyber liability insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under Exhibit E
of this Agreement; (iv) system failure; (v) data recovery; (vi) failure to timely disclose
data breach or Security Breach; (vii) failure to comply with privacy policy; (viii) payment
card liabilities and costs; (ix) infringement of intellectual property, including but not
limited to infringement of copyright, trademark, and trade dress; (x) invasion of privacy,
including release of private information; (xi) information theft; (xii) damage to or
destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; (xv)fraudulent instruction; (xvi) funds
transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; and (xxi) credit monitoring expenses.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement(c�fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
D-2
Exhibit D
shall be excess only and not contributing with insurance provided under the
Contractor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iv) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
(v) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(vi) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data) that is in the care, custody, or control of the Contractor.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
D-3
Exhibit D
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
D-4
Exhibit E
Data Security
A. Definitions.
Capitalized terms used in this Exhibit E have the meanings set forth in this section A.
"Authorized Employees" means the Contractor's employees who have access to
Personal Information.
"Authorized Persons" means: (i) any and all Authorized Employees; and (ii) any and
all of the Contractor's subcontractors, representatives, agents, outsourcers, and consultants,
and providers of professional services to the Contractor, who have access to Personal
Information and are bound by law or in writing by confidentiality obligations sufficient to protect
Personal Information in accordance with the terms of this Exhibit E.
"Director" means the County's Director of Internal Services/Chief Information Officer or
his or her designee.
"Disclose" or any derivative of that word means to disclose, release, transfer,
disseminate, or otherwise provide access to or communicate all or any part of any Personal
Information orally, in writing, or by electronic or any other means to any person.
"Person" means any natural person, corporation, partnership, limited liability company,
firm, or association.
"Personal Information" means any and all information, including any data provided, or
to which access is provided, to the Contractor by or upon the authorization of the County,
including but not limited to vital records, that: (i) identifies, describes, or relates to, or is
associated with, or is capable of being used to identify, describe, or relate to, or associate with,
a person (including, without limitation, names, physical descriptions, signatures, addresses,
telephone numbers, e-mail addresses, education, financial matters, employment history, and
other unique identifiers, as well as statements made by or attributable to the person); (ii) is used
or is capable of being used to authenticate a person (including, without limitation, employee
identification numbers, government-issued identification numbers, passwords or personal
identification numbers (PINs), financial account numbers, credit report information,
answers to security questions, and other personal identifiers); or is personal information within
the meaning of California Civil Code section 1798.3, subdivision (a), or 1798.80, subdivision (e).
E-1
Exhibit E
Personal Information does not include publicly available information that is lawfully made
available to the general public from federal, state, or local government records.
"Privacy Practices Complaint" means a complaint received by the County relating to
the Contractor's (or any Authorized Person's) privacy practices, or alleging a Security Breach.
Such complaint shall have sufficient detail to enable the Contractor to promptly investigate and
take remedial action under this Exhibit E.
"Security Safeguards" means physical, technical, administrative or organizational
security procedures and practices put in place by the Contractor (or any Authorized Persons)
that relate to the protection of the security, confidentiality, value, or integrity of Personal
Information. Security Safeguards shall satisfy the minimal requirements set forth in subsection
C.(5) of this Exhibit E.
"Security Breach" means (i) any act or omission that compromises either the security,
confidentiality, value, or integrity of any Personal Information or the Security Safeguards, or (ii)
any unauthorized Use, Disclosure, or modification of, or any loss or destruction of, or any
corruption of or damage to, any Personal Information.
"Use" or any derivative thereof means to receive, acquire, collect, apply, manipulate,
employ, process, transmit, disseminate, access, store, disclose, or dispose of Personal
Information.
B. Standard of Care.
(1) The Contractor acknowledges that, in the course of its engagement by the County
under this Agreement, the Contractor, or any Authorized Persons, may Use Personal
Information only as permitted in this Agreement.
(2) The Contractor acknowledges that Personal Information is deemed to be confidential
information of, or owned by, the County (or persons from whom the County receives or has
received Personal Information) and is not confidential information of, or owned or by, the
Contractor, or any Authorized Persons. The Contractor further acknowledges that all right, title,
and interest in or to the Personal Information remains in the County (or persons from whom the
E-2
Exhibit E
County receives or has received Personal Information) regardless of the Contractor's, or any
Authorized Person's, Use of that Personal Information.
(3) The Contractor agrees and covenants in favor of the County that the Contractor shall:
(i) keep and maintain all Personal Information in strict confidence, using such degree of care
under this Subsection B as is reasonable and appropriate to avoid a Security Breach; (ii) Use
Personal Information exclusively for the purposes for which the Personal Information is made
accessible to the Contractor pursuant to the terms of this Exhibit E; (iii) not Use, Disclose, sell,
rent, license, or otherwise make available Personal Information for the Contractor's own
purposes or for the benefit of anyone other than the County, without the County's express prior
written consent, which the County may give or withhold in its sole and absolute discretion; and
(iv) not, directly or indirectly, Disclose Personal Information to any person (an "Unauthorized
Third Party") other than Authorized Persons pursuant to this Agreement, without the Director's
express prior written consent.
Notwithstanding the foregoing paragraph, in any case in which the Contractor believes it,
or any Authorized Person, is required to disclose Personal Information to government regulatory
authorities, or pursuant to a legal proceeding, or otherwise as may be required by applicable
law, the Contractor shall (a) immediately notify the County of the specific demand for, and legal
authority for the disclosure, including providing the County with a copy of any notice, discovery
demand, subpoena, or order, as applicable, received by the Contractor, or any Authorized
Person, from any government regulatory authorities, or in relation to any legal proceeding, and
(b) promptly notify the County before such Personal Information is offered by the Contractor for
such disclosure so that the County may have sufficient time to obtain a court order or
take any other action the County may deem necessary to protect the Personal Information from
such disclosure, and the Contractor shall cooperate with the County to minimize the scope of
such disclosure of such Personal Information.
E-3
Exhibit E
The Contractor shall remain liable to the County for the actions and omissions of any
Unauthorized Third Party concerning its Use of such Personal Information as if they were the
Contractor's own actions and omissions.
C. Information Security.
(1) The Contractor covenants, represents and warrants to the County that the
Contractor's Use of Personal Information under this Agreement does and shall at all times
comply with all federal, state, and local, privacy and data protection laws, as well as all other
applicable regulations and directives, including but not limited to California Civil Code, Division
3, Part 4, Title 1.81 (beginning with section 1798.80), and the Song-Beverly Credit Card Act of
1971 (California Civil Code, Division 3, Part 4, Title 1.3, beginning with section 1747). If the
Contractor Uses credit, debit, or other payment cardholder information, the Contractor shall at
all times remain in compliance with the Payment Card Industry Data Security Standard ("PCI
DSS") requirements, including remaining aware at all times of changes to the PCI DSS and
promptly implementing and maintaining all procedures and practices as may be necessary to
remain in compliance with the PCI DSS, in each case, at the Contractor's sole cost and
expense.
(2) The Contractor covenants, represents and warrants to the County that, as of the
Effective Date, the Contractor has not received notice of any violation of any privacy or data
protection laws, as well as any other applicable regulations or directives, and is not the subject
of any pending legal action or investigation by, any government regulatory authority regarding
same.
(3) Without limiting the Contractor's obligations under subsection C.(1) of this Exhibit E,
the Contractor's (or Authorized Person's) Security Safeguards shall be no less rigorous than
accepted industry practices and, at a minimum, include the following: (i) limiting Use of
Personal Information strictly to the Contractor's and Authorized Persons' technical and
administrative personnel who are necessary for the Contractor's, or Authorized Persons', Use of
the Personal Information pursuant to this Agreement; (ii) ensuring that all of the Contractor's
connectivity to the County computing systems will only be through the County's security
E-4
Exhibit E
gateways and firewalls, and only through security procedures approved upon the express prior
written consent of the Director; (iii) to the extent that they contain or provide access to Personal
Information, (a) securing the Contractor's business facilities, data centers, paper files, servers,
back-up systems and computing equipment, operating systems, and software applications,
including, but not limited to, all mobile devices and other equipment, operating systems, and
software applications with information storage capability; (b) employing adequate controls and
data security measures with respect to the Contractor Facilities and Equipment), both internally
and externally, to protect (1) the Personal Information from potential loss or misappropriation, or
unauthorized Use, and (2) the County's operations from disruption and abuse; (c) having and
maintaining network, device application, database and platform security; (d) maintaining
authentication and access controls within media, computing equipment, operating systems, and
software applications; and (e) installing and maintaining in all mobile, wireless, or handheld
devices a secure internet connection, having continuously updated anti-virus software protection
and a remote wipe feature always enabled, all of which is subject to express prior written
consent of the Director; (iv) encrypting all Personal Information at advance encryption standards
of Advanced Encryption Standards (AES) of 128 bit or higher (a) stored on any mobile devices,
including but not limited to hard disks, portable storage devices, or remote installation, or (b)
transmitted over public or wireless networks (the encrypted Personal Information must be
subject to password or pass phrase, and be stored on a secure server and transferred by
means of a Virtual Private Network (VPN) connection, or another type of secure connection, all
of which is subject to express prior written consent of the Director); (v) strictly segregating
Personal
Information from all other information of the Contractor, including any Authorized Person,
or anyone with whom the Contractor or any Authorized Person deals so that Personal
Information is not commingled with any other types of information; (vi) having a patch
management process including installation of all operating system/software vendor security
patches; (vii) maintaining appropriate personnel security and integrity procedures and practices,
including, but not limited to, conducting background checks of Authorized Employees consistent
E-5
Exhibit E
with applicable law; and (viii) providing appropriate privacy and information security training to
Authorized Employees.
(4) During the term of each Authorized Employee's employment by the Contractor, the
Contractor shall cause such Authorized Employees to abide strictly by the Contractor's
obligations under this Exhibit E. The Contractor further agrees that it shall maintain a
disciplinary process to address any unauthorized Use of Personal Information by any
Authorized Employees.
(5) The Contractor shall, in a secure manner, backup daily, or more frequently if it is the
Contractor's practice to do so more frequently, Personal Information received from the County,
and the County shall have immediate, real time access, at all times, to such backups via a
secure, remote access connection provided by the Contractor, through the Internet.
(6) The Contractor shall provide the County with the name and contact information for
each Authorized Employee (including such Authorized Employee's work shift, and at least one
alternate Authorized Employee for each Authorized Employee during such work shift) who shall
serve as the County's primary security contact with the Contractor and shall be available to
assist the County 24 hours per day, seven days per week as a contact in resolving the
Contractor's and any Authorized Persons' obligations associated with a Security Breach or a
Privacy Practices Complaint.
D. Security Breach Procedures.
(1) Promptly, and without undue delay, upon the Contractor's confirmation of a Security
Breach, the Contractor shall (a) notify the Director of the Security Breach, such notice to be
given first by telephone at the following telephone number, followed promptly by email at the
following email address: (559) 600-5900/incidents@fresnocountyca.gov (which telephone
number and email address the County may update by providing notice to the Contractor), and
(b) preserve all relevant evidence (and cause any affected Authorized Person to preserve all
relevant evidence) relating to the Security Breach. The notification shall include, to the extent
reasonably possible, the identification of each type and the extent of Personal Information that
has been, or is reasonably believed to have been, breached, including but not limited to,
E-6
Exhibit E
compromised, or subjected to unauthorized Use, Disclosure, or modification, or any loss or
destruction, corruption, or damage.
(2) Immediately following the Contractor's notification to the County of a Security Breach,
as provided pursuant to subsection D.(1) of this Exhibit E, the Parties shall coordinate with each
other to investigate the Security Breach. The Contractor agrees to fully cooperate with the
County, including, without limitation: (i) assisting the County in conducting any investigation; (ii)
providing the County with physical access to the facilities and operations affected; (iii)facilitating
interviews with Authorized Persons and any of the Contractor's other employees knowledgeable
of the matter; and (iv) making available all relevant records, logs, files, data reporting and other
materials required to comply with applicable law, regulation, industry standards, or as otherwise
reasonably required by the County. To that end, the Contractor shall, with respect to a Security
Breach, be solely responsible, at its cost, for all notifications required by law and regulation, and
the Contractor shall provide a written report of the investigation and reporting required to the
Director within 30 days after the Contractor's discovery of the Security Breach.
(3) The County shall promptly notify the Contractor of the Director's knowledge, or
reasonable belief, of any Privacy Practices Complaint, and upon the Contractor's receipt of
notification thereof, the Contractor shall promptly address such Privacy Practices
Complaint, including taking any corrective action under this Exhibit E, all at the Contractor's sole
expense, in accordance with applicable privacy rights, laws, regulations and standards. In the
event the Contractor discovers a Security Breach, the Contractor shall treat the Privacy
Practices Complaint as a Security Breach. Within 24 hours of the Contractor's receipt of
notification of such Privacy Practices Complaint, the Contractor shall notify the County whether
the matter is a Security Breach, or otherwise has been corrected and the manner of correction,
or determined not to require corrective action and the reason therefor.
(4) The Contractor shall take prompt corrective action to respond to and remedy any
Security Breach and take reasonable mitigating actions, including but not limiting to, preventing
any reoccurrence of the Security Breach and correcting any deficiency in Security Safeguards
as a result of such incident, all at the Contractor's sole expense, in accordance with applicable
E-7
Exhibit E
privacy rights, laws, regulations and standards. The Contractor shall reimburse the County for
all reasonable costs incurred by the County in responding to, and mitigating damages caused
by, any Security Breach, including all costs of the County incurred in relation to any litigation or
other action described in subsection D.(5) of this Exhibit E to the extent applicable: (1) the cost
of providing affected individuals with credit monitoring services for a specific period not to
exceed 12 months, to the extent the incident could lead to a compromise of the data subject's
credit or credit standing; (2) call center support for such affected individuals for a specific period
not to exceed 30 days; and (3) the cost of any measures required under applicable laws.
E. Oversight of Security Compliance.
(1) The Contractor shall have and maintain a written information security policy that
specifies Security Safeguards appropriate to the size and complexity of the Contractor's
operations and the nature and scope of its activities.
(2) Upon the County's written request, to confirm the Contractor's compliance with this
Exhibit E, as well as any applicable laws, regulations and industry standards, the Contractor
grants the County or, upon the County's election, a third party on the County's behalf,
permission to perform an assessment, audit, examination or review of all controls in the
Contractor's physical and technical environment in relation to all Personal Information that is
Used by the Contractor pursuant to this Agreement. The Contractor shall fully cooperate with
such assessment, audit or examination, as applicable, by providing the County or the third party
on the County's behalf, access to all Authorized Employees and other knowledgeable
personnel, physical premises, documentation, infrastructure and application software that is
Used by the Contractor for Personal Information pursuant to this Agreement. In addition, the
Contractor shall provide the County with the results of any audit by or on behalf of the
Contractor that assesses the effectiveness of the Contractor's information security program as
relevant to the security and confidentiality of Personal Information Used by the Contractor or
Authorized Persons during the course of this Agreement under this Exhibit E.
(3) The Contractor shall ensure that all Authorized Persons who Use Personal
Information agree to the same restrictions and conditions in this Exhibit E. that apply to the
E-8
Exhibit E
Contractor with respect to such Personal Information by incorporating the relevant provisions of
these provisions into a valid and binding written agreement between the Contractor and such
Authorized Persons, or amending any written agreements to provide same.
F. Return or Destruction of Personal Information.
Upon the termination of this Agreement, the Contractor shall, and shall instruct all
Authorized Persons to, promptly return to the County all Personal Information, whether in
written, electronic or other form or media, in its possession or the possession of such Authorized
Persons, in a machine readable form used by the County at the time of such return, or upon the
express prior written consent of the Director, securely destroy all such Personal Information,
and certify in writing to the County that such Personal Information have been returned to the
County or disposed of securely, as applicable. If the Contractor is authorized to dispose of any
such Personal Information, as provided in this Exhibit E, such certification shall state the date,
time,
and manner (including standard) of disposal and by whom, specifying the title of the
individual. The Contractor shall comply with all reasonable directions provided by the Director
with respect to the return or disposal of Personal Information and copies thereof. If return or
disposal of such Personal Information or copies of Personal Information is not feasible, the
Contractor shall notify the County accordingly, specifying the reason, and continue to extend the
protections of this Exhibit E to all such Personal Information and copies of Personal Information.
The Contractor shall not retain any copy of any Personal Information after returning or disposing
of Personal Information as required by this section F. The Contractor's obligations under this
section F survive the termination of this Agreement and apply to all Personal Information that
the Contractor retains if return or disposal is not feasible and to all Personal Information that the
Contractor may later discover.
G. Equitable Relief.
The Contractor acknowledges that any breach of its covenants or obligations set forth in
this Exhibit E may cause the County irreparable harm for which monetary damages would not
be adequate compensation and agrees that, in the event of such breach or threatened breach,
E-9
Exhibit E
the County is entitled to seek equitable relief, including a restraining order, injunctive relief,
specific performance and any other relief that may be available from any court, in addition to
any other remedy to which the County may be entitled at law or in equity. Such remedies shall
not be deemed to be exclusive but shall be in addition to all other remedies available to the
County at law or in equity or under this Agreement.
H. Indemnification.
The Contractor shall defend, indemnify and hold harmless the County, its officers,
employees, and agents, (each, a "County Indemnitee")from and against any and all
infringement of intellectual property including, but not limited to infringement of copyright,
trademark, and trade dress, invasion of privacy, information theft, and extortion, unauthorized
Use, Disclosure, or modification of, or any loss or destruction of, or any corruption of or damage
to, Personal Information, Security Breach response and remedy costs, credit monitoring
expenses, forfeitures, losses, damages, liabilities, deficiencies, actions, judgments, interest,
awards, fines, and penalties (including regulatory fines and penalties), costs or expenses of
whatever kind, including attorney's fees and costs, the cost of enforcing any right to
indemnification or defense under the Agreement and the cost of pursuing any insurance
providers, arising out of or resulting from any third party claim or action against any County
Indemnitee in relation to the Contractor's, its officers, employees, or agents, or any Authorized
Employee's or Authorized Person's, performance or failure to perform under this Exhibit E or
arising out of or resulting from the Contractor's failure to comply with any of its obligations under
this section H. The provisions of this section H do not apply to the acts or omissions of the
County. The provisions of this section H are cumulative to any other obligation of the Contractor
to, defend, indemnify, or hold harmless any County Indemnity under this Agreement. The
provisions of this section H shall survive the termination of this Agreement.
I. Survival.
The respective rights and obligations of the Contractor and the County as stated in this
Exhibit E shall survive the termination of this Agreement.
J. No Third Party Beneficiary.
E-10
Exhibit E
Nothing express or implied in the provisions of in this Exhibit E is intended to confer, nor
shall anything herein confer, upon any person other than the County or the Contractor and their
respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever.
L. No County Warranty.
The County does not make any warranty or representation whether any Personal
Information in the Contractor's (or any Authorized Person's) possession or control or Use by the
Contractor(or any Authorized Person), pursuant to the terms of this Agreement is or will be
secure from unauthorized Use, or a Security Breach or Privacy Practices Complaint.
E-11
Exhibit F
End User License Agreement
1. Software means the Priority Dispatch System ("PDS") software, content, and/or manual flip
cards that YOU (henceforth, County of Fresno) receive from PDC in connection with this
Agreement and as further identified in Customer's invoice or quote from PDC, regardless of the
medium on which it is stored. Documentation means any and all manuals, instructions and other
documents and materials that PDC provides or makes available to Customer in any form or
medium in relation to the Software. Whenever the context reasonably permits, any reference in
this Agreement to "Software" shall also apply to the PDS and to the Documentation, which
together comprise the Licensed Product. Except as provided below, in the section entitled
"Limited Software Warranty," any Updates to the Software received by YOU from PDC shall be
included in this definition of Software and covered by this Agreement. User rights to the
Software are obtained only from PDC, by license agreement with PDC.
2. A PDC Product. The Software (including its content) and any and all copies thereof and
derivatives therefrom are owned by PDC or its Licensor(s) (altogether"PDC"). YOU
acknowledge that PDC owns the copyrights, patent rights, trade secrets, trademarks and other
intellectual property rights in and to the Software. License fees purchase only the limited
License provided in this Agreement. YOU agree not to infringe upon any of these exclusive
intellectual property rights of PDC and that YOU will not attempt to record or register any of
them for any party. Copies of the Software are loaned to YOU by PDC for the duration of the
License only, and only for the purpose of enabling YOU to exercise YOUR License rights (see
also, section entitled "Termination").
3. Stations, Licensed Stations, Number of Licensed Stations. "Stations" are computers,
terminals, nodes, computer aided dispatch stations, or workstations in YOUR possession and/or
control. "Licensed Stations" are YOUR Stations that have access to the Software and for which
YOU have paid the applicable License Fee to PDC for this License to use the Software. The
"Number of Licensed Stations" is specified in YOUR License Fee invoice or quote from PDC.
YOU may not use the Software in connection with any Stations (or any other computers,
terminals, nodes or workstations) other than the Licensed Stations, and the number of Stations
using or having access to the Software shall at no time exceed the Number of Licensed
Stations. "Training Stations" are Stations that have access to the Software but are dedicated to
the purpose of training personnel on the use of computerized functions in the call-center, and
may not be used to take real or live calls. "Backup Stations" are Stations that have access to the
F-1
Exhibit F
Software but have been designated as backup stations for emergency contingency use only.
Backup Stations are separate and independent from the Licensed Stations, and shall not run
concurrent functions with the Licensed Stations. Backup Stations are only licensed to be used in
circumstances when the Licensed Stations are rendered inoperable.
4. License of Software. PDC grants to Customer a nonexclusive, non-transferable limited
license (the "License") to use the Software on the Number of Licensed Stations. This License
also authorizes YOU to use the Documentation, but only in connection with YOUR licensed use
of the Software. The Term of the License begins on the date YOU receive the Software and
accept this Agreement. Rights not expressly granted to YOU under this Agreement are reserved
by PDC.
5. License Fee. YOU shall pay PDC the License Fee specified and in YOUR invoice from PDC
when the License is purchased, and the ESP fee annually thereafter. Any increase in the
Number of Licensed Stations will require the payment of additional license fees to PDC at its
then-current rate for incremental Licensed Stations for the Software.
6. Copies & Use. YOU may copy Software for reasonable archival or back-up purposes. All
trademark, copyright and proprietary rights notices must be reproduced by YOU and included
on all copies. U.S. law, international law and treaties, and this Agreement all prohibit YOU from
making any other copies; or from making any derivatives of the Software, system protocols, or
anything in the PDS; or from making any use of the Software in any manner not licensed by this
Agreement.
7. Use and Protection of the Licensed Product(s) and PDS. YOU are not entitled to receive
any source code for the Software. Without PDC's express, prior written permission, YOU shall
not: (a) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source
code or trade secrets of the Software, or alter the Software or create any derivative work or
product based upon, or derived from the PDS, Software or Documentation; or (b) transfer,
disclose, rent, /ease, Joan, publicly display, adapt, timeshare, sublicense, duplicate, distribute,
translate, modify, or alter the Software or any copy thereof, including, without limitation, any
deletion from or addition to the Software, or allow third party access to or use of the Software or
any copy thereof in any manner,• or (c) use the Software in any way not specifically provided
under this license. Modification of the Software by implementing Updates provided by PDC
under this Agreement, and by the addition of local response configurations to PDS dispatch
codes (as provided for elsewhere in this Agreement) are not in breach of this section. YOU
F-2
Exhibit F
acknowledge that YOUR material breach of this Agreement would provide PDC the option to
terminate this License and/or withhold Service and Support, and would also cause irreparable
harm to PDC that could not be adequately compensated by damages alone. Consequently,
PDC may seek and obtain, without posting any bond or providing any other security, immediate
preliminary and permanent injunctions against YOUR breach or threatened breach of the
Agreement, in addition to any and all other legal and equitable remedies available, and YOU
hereby consent to the obtaining of such injunctive relief. In addition to other remedies that may
be available to PDC, PDC shall be entitled to recover any profits made by YOU as a result of
the breach of this Agreement or the infringement of its intellectual property. Any derivative
product, whether created knowingly or unknowingly, shall be the property of PDC.
8. Extended Service Plan. This Agreement includes and incorporates the accompany
Extended Service Plan (ESP) agreement as set forth below.
9. Taxes. Any sales, use, withholding and other taxes, duties or government assessments
relating to this Agreement or the License, or to the payments or transactions hereunder, shall be
paid by YOU, in addition to all other specific payments required to be made by YOU under this
Agreement. If any taxes or amounts are withheld or deducted by any government or authority
from any license fees or payments to PDC, YOU shall be obligated to pay the taxes or amounts
withheld or deducted so that the license fees and payments actually received by PDC are the
full amounts contemplated by this Agreement before such withholding or deduction. If
necessary, the license fees and amounts shall be increased ("grossed up") so that the license
fees and payments actually received by PDC after such withholding and deductions are the full
amounts. This section does not apply to U.S. federal or state taxes that may be imposed upon
PDC on the basis of net corporate income.
10. Use of Software; Updates. YOU may only use the Software in compliance with this
Agreement and the Documentation. PDC may issue Updates or revisions to the Software and
bulletins or advisories concerning use of the Software (see also, "Updates" in the ESP). YOUR
failure to implement such PDC-provided Updates or revisions within 90-days of PDC providing
same to YOU will constitute a material breach of this Agreement, giving PDC the right to
terminate the License for cause and/or to withhold further Service and Support, and YOU
hereby agree to indemnify and hold PDC and the IAED harmless from and against any
damages and liabilities that may arise from failure on YOUR part to implement such Updates
(see also, ESP Section titled "Unsafe Practices"). Updates to the Software received by YOU
from PDC shall be covered as "Software" under this Agreement, as provided above, in the
F-3
Exhibit F
section of this Agreement entitled "Software." An exception to this general rule is provided
immediately below with respect to refunds, in the section entitled "Limited Software Warranty."
11. Limited Software Warranty. PDC warrants that if the Software does not materially conform
with its descriptions in the Documentation and PDC's published specifications, and if YOU
report in writing to PDC within 30 days after delivery of the Software to YOU any material failure
of the Software to so conform with the Documentation or specifications, then PDC will, at its
sole option, and at no cost to YOU, either: (a) remedy the failure or provide a reasonable work-
around solution; or (b) offer to refund License Fees and any pre-paid fees for ESP that have
been received by PDC for the non-conforming Software. The refund offer does not apply to free
Software Updates provided by PDC under this Agreement. If a refund is offered, YOU will have
20 days from the date of the offer to either accept the refund or accept the Software "as-is." If
YOU elect to accept the Software as-is, then PDC's warranties will be deemed satisfied and this
Agreement will not terminate. If YOU accept the refund offer, YOU must return the must certify
in writing to PDC that YOU have not retained in YOUR possession or control, any copies of the
Software and that YOU have not transferred or disclosed any Software to any third party. Then
PDC will refund to YOU the License Fee and any prepaid ESP Fees received by PDC from
YOU hereunder. THIS SHALL BE YOUR SOLE AND EXLUSIVE REMEDY AND PDC'S SOLE
AND EXCLUSIVE LIABILITY WITH RESPECT TO ANY BREACH OF THIS WARRANTY.
12. Inspection. PDC may, from time to time and at its own expense and option, inspect YOUR
facilities and records to audit YOUR compliance with this Agreement. Although not obligated to
so, PDC may inform YOU of any improper, unauthorized or unsafe usage of the Software. 10
are informed of any such misuse of the Software and fail to correct it to PDC's reasonable
satisfaction within 30-days of written notice from PDC, then PDC may terminate the License. In
addition, if YOU develop, market, or otherwise use a competing or alternative dispatch product,
YOU expressly authorize PDC to enter YOUR facilities to inspect and evaluate the competing or
alternative product to determine if any of PDC's intellectual property or intellectual property right
are being violated.
13. DISCLAIMER OF OTHER PDC WARRANTIES. PDC MAKES NO WARRANTY,
REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
EXCEPT FOR THE LIMITED WARRANTY, SOFTWARE IS PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. PDC DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED
WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PDC DOES NOT WARRANT
F-4
Exhibit F
THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY YOUR REQUIREMENTS OR
THAT THEY ARE WITHOUT ERROR, OMISSION, DEFECT OR DEFICIENCY, OR THAT THE
OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
14. LIMITATION ON PDC LIABILITY. THE AGGREGATE LIABILITY OF PDC ARISING FROM
OR RELATING TO THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM
OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT, STRICT LIABILITY
MALPRACTICE, INDEMNITY, AND/OR OTHERWISE, AND WHETHER OR NOT ARISING IN
WHOLE OR IN PART FROM PDC'S FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUC
LIABILITY, SHALL NOT EXCEED THE AMOUNT OF THE SOFTWARE LICENSE FEE PAID B
YOU TO PDC DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING SUCH
CLAIM. PDC SHALL NOT IN ANY CASE BE LIABLE FOR ANY, INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF PDC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PDC SHALL NOT BE LIABLE TO
ANY THIRD PARTY FOR ANY CLAIM, LIABILITY OR DAMAGES RESULTING FROM OR
RELATING TO YOUR USE OF THE SOFTWARE OR ANY RELIANCE THEREON. PDC IS
NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE
SOFTWARE OR OTHER COMPUTER PROGRAMS, FAILURE OF THE SOFTWARE TO
OPERATE WITHOUT INTERRUPTION, LOSS OF DATA, COSTS OF RE-CREATING LOST
DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM. THE OFFICERS,
DIRECTORS, EMPLOYEES AND REPRESENTATIVES OF PDC ARE NOT PARTIES TO THIS
AGREEMEN AND SHALL HAVE NO LIABILITY RELATING TO THIS AGREEMENT OR ITS
SUBJECT MATTER. EXCEPT FOR THE LIMITED WARRANTY, PDC MAKES NO
WARRANTY CONCERNING THE SOFTWARE, AND PDC SHALL NOT OTHERWISE BE
LIABLE FOR ANY NONCONFORMITY IN THE SOFTWARE OR IN THE PDS. FOR THE SAKE
OF CLARIFICATION, IT IS UNDERSTOOD BY YOU THAT PDC DOES NOT GUARANTEE,
NOR INDEMNIFY, NOR SHALL PDC HOLD ANY PARTY HARMLESS TO ANY USE OF OR
RELIANCE UPON THE DISPATCH PROTOCOLS CONTAINED IN THE SOFTWARE.
15. RESPONSIBILITY. IT IS YOUR RESPONSIBILITY TO EXAMINE AND TEST THE
SOFTWARE AFTER IT IS DELIVERED TO YOU TO DETERMINE IF IT IS ACCEPTABLE TO
YOU AND ADEQUATE AND SAFE FOR YOUR NEEDS AND USES. YOU ARE SOLELY
RESPONSIBLE AND LIABLE FOR YOUR USE OF AND RELIANCE ON THE SOFTWARE.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE ESP, AND THAT THE LICENSE IS CONDITIONED
F-5
Exhibit F
ON YOUR REPRESENTATION TO PDC THAT YOU HAVE ACCEPTED AND AGREE TO BE
BOUND BY THIS AGREEMENT AND THESE PROVISIONS AND DISCLAIMERS.
16. ALLOCATION OF RISK. THIS AGREEMENT DEFINES A MUTUALLY AGREED-UPON
ALLOCATION OF RISK, AND THE FEES PAYABLE HEREUNDER REFLECT SUCH
ALLOCATION OF RISK.
17. Termination. Termination of this Agreement shall be in accordance with Section 4f the
Agreement. Subsequent to termination the decommission process shall take place as follows:
(a) Decommission Process. Decommissioning of the PDS can be very extensive. Customer
shall contact PDC at least 90-days before Customer plans on using an alternative dispatch
product. At that point, PDC shall provide Customer with more detailed information regarding the
decommission process. Part of the Decommission process will involve collecting II PDC
intellectual Property and exporting PDS data in a format that will give Customer access to
historical records. In order to successfully decommission the PDS, Customer understands that
PDC will come on site at their location and Customer must provide a dedicated person (general!
an I.T. person) to PDC to allow for the successful decommissioning of the PDS. After the
decommission process, any PDC products, intellectual property, or materials found shall be
immediately forwarded to PDC.
18. Export Controls. YOU warrant and certify the Software will not be exported, re-exported or
otherwise made available by YOU to any country, entity, or individual in violation of any U.S.
laws or regulations.
19. Construction. This Agreement represents the wording selected by the Parties to define
their agreement and no rule of strict construction shall apply against either Party. Whenever the
context reasonably permits, the singular shall include the plural, the plural shall include the
singular, and the whole shall include any part thereof.
Extended Service Plan ("ESP")
1. Extended Service Plans
a. Silver ESP: Includes 24x7x365 technical support and Updates to the Software
within the current version.
F-6
Exhibit F
b. Gold ESP: Includes everything in the Silver package plus Upgrades to the
Software and an annual subscription to the Continuing Dispatch Education
Series/Advancement Series.
c. Platinum ESP: Includes everything in the Gold package plus updated QAGs
(Quality Assurance Guides), updated FRGs (Field Responder Guides), Cardsets,
and a number of annual site visits. Site visits can be IT, CDE, software training,
QA support, ACE application support, or implementation help, (the number of site
visits is based on the number of Licensed Stations).
d. ESP Miscellaneous:
i. Client must register as described in Section ii below.
ii. The annual ESP fees must be fully paid in advance. The ESP period
is for one year and is renewed annually upon continued use of the
Licensed Products.
iii. All Licensed Products that a Customer must have the same ESP.
iv. PDC reserves the right to terminate this Agreement if YOU are not
current on YOUR financial obligations to PDC.
Customer Obligations:
i. Customer's hardware and operating systems must meet the minimum
system requirements provided by PDC.
ii. Customer is solely responsible for any required adjustments or updates to
its hardware or operating system software to accommodate Updates or
Upgrades of the Software.
iii. Customer shall ensure availability of its own technical support personnel
so PDC can fulfill its service obligations.
iv. When reporting a problem to PDC's technical support, Customer shall
provide a complete problem description, along with all necessary
documents and information that is available to the Customer and required
by PDC to diagnose and resolve the problem. Customer agrees to grant
all necessary access to all applicable systems so that PDC can provide
appropriate support.
V. Customer shall carry out any instructions on troubleshooting or
circumvention as provided by PDC.
F-7
Exhibit F
vi. Customer is solely responsible for ensuring the compatibility of non-PDC
products with PDC products.
vii. Customer is solely responsible for ensuring its systems, software, and
data are adequately backed up. PDC shall not be liable for any lost data.
viii. Customer shall provide for any other requirements reasonably specified
by PDC that relate to the rendition of the services to be met.
ix. As necessary, Customer will permit PDC with remote access to its
systems to provide any required or necessary support.
X. If Customer fails to fulfil its obligations outlines in this Section, PDC is
entitled to bill its time and effort made necessary by Customer's failure(s)
at PDC's currently stated hourly rates.
A. Computer-Aided Dispatch ("CAD") Integration. Any costs relating to the
integration of PDC's Licensed products and the Customer's CAD system
or CRM, or the like, software shall be the responsibility of the Customer.
The integration of PDC's Licensed Products and Customer's CAD system
must be inspected, tested, and certified, by PDC before taking live calls.
2. Update & New Versions: An important part of PDC's on-going research and
development to optimize the effectiveness of the Software is its regular evaluation of the
experience, findings, and recommendations of licensed Software users in the field; the
College of Fellows of the International Academies of Emergency Dispatch ("IAED");
Quality Assurance programs; and of its own, internal research and studies. Consequent
to these and other research and development activities, PDC may, from time to time,
prepare and release Updates and/or New Versions of the Software. Notifications for
Updates and/or New Versions of the Software are sent electronically (via email). In order
to ensure receipt of the Software notifications, Client must register at
https://support.prioritydispatch.net/release-notification-signupYOU acknowledge that
failure to register may result in YOU not receiving urgent and vital communications about
the Licensed Products. As part of its registration obligation, Client agrees to keep all its
registration information current and up-to-date and understands it is solely responsible
for ensuring it receives Software notifications.
a. Updates: When PDC determines that particular improvements, modifications or
enhancements may be useful as an Update to the current Version, PDC may
issue an Update to licensees who have maintained their online Software
F-8
Exhibit F
notification registration and ESP current as provided herein. Client shall, within
90 days of an Update release from PDC, implement such Update. Client's failure
to register for Software notifications and implement Updates, as provided here,
would constitute a Breach of the EULA, giving cause for PDC to terminate this
Agreement or withhold further Service and Support. Such Updates may be
accompanied by instructions for updating the Software. Installation of an Update
in accordance with such instructions is not a modification prohibited by the
section of the Agreement titled "Use and Protection of the Licensed Product(s)
and PDS."
b. New Versions: When PDC determines that substantial revisions to the Software
(among other factors) may justify it, PDC may issue a new Version of the
Software ("New Version"). PDC may thereafter cease issuing Updates for
versions and editions preceding the New Version. Said New Version then
becomes the current version and edition of the Software, but is not licensed to
YOU, unless it is part of YOUR ESP plan. In the event New Versions are part of
YOUR ESP plan, the New Version shall be governed by PDC's then-current
license Agreement. If New Version are not part of YOUR ESP plan, then the New
Version constitutes a new product that can only be obtained through the
purchase of a new license from PDC that is licensed under a new agreement
with PDC. During an introductory period, licensees who are current in their
registration and service plan with the preceding version may be offered, for a
reduced fee, a license to use the New Version. The New Version will be
governed by PDC's then-current license agreement. tended Service will not be
available indefinitely after a New Version of the Software is released to replace a
prior version. Customers that continue to use prior versions after a New Version
has been released are solely responsible for their continued use, and for the
results obtained from such continued use, of any prior version. YOU hereby
agree to indemnify and hold PDC and the IAED harmless from and against any
damages and liabilities that may arise from YOUR election not to implement any
New Version after it has been released.
3. Responsibility: Client assumes full responsibility for ascertaining the suitability of, and
for its selection of, the Software, as well as for its installation, implementation and use,
and for the results obtained from it. YOU are responsible for decisions made and actions
F-9
Exhibit F
taken based on the Software. The Software is designed and intended for use by
emergency dispatch professionals trained and experienced in the uses and Iimita0tions
of computer software in general, and more specifically, of the emergency dispatch
system(s) the Software is designed for as a quality management tool.
4. Research Data Sharing: In the interests of advancing the state-of-the-art in emergency
dispatching through effective use of and improvements to the Software, Client shall, in
timely response to PDC's reasonable written requests, provide PDC with copies, on disk
or tape, of the data associated with the functioning of the Software. PDC shall use such
data in compliance with applicable government regulations and restrictions (including,
without limitation, HIPAA in the U.S.), and may use such data for research and
development purposes. It will not make any external, public use or release of such
research data without the prior written consent of Client. Furthermore, PDC will not
request data in a manner that includes any names or personal identifying information or
that indicates Client as the source of the data. Additionally, by sharing data with PDC,
YOU allow PDC to share the data with the IAED for the purpose of improving and
advancing dispatching
5. Expert System Disclosure: This expert system is designed for use by Emergency
Dispatchers or calltakers (EDs) who have been trained and certified in the use of the
PDS and who function in a prescribed PDS quality assurance environment. It is not a
novice system. The system design envisions occasions when even the trained ED will
have to make a subjective. decision regarding a caller's response and make the most
correct selection from the list of choices presented. The design of this system
incorporates current professional and logic accuracy. Of necessity, however, it also
reflects some subjective opinions of professional experts and programmers with which
others may reasonably disagree. The system and its necessary maintenance
components must be considered and approved by local control entities and ED agency
administration, prior to implementation and on-line use by trained EDs. The system also
envisions that, when appropriate, trained EDs will have the option of"overriding" a
system-recommended choice for enhanced patient safety and that they will choose the
.,most appropriate" telephone treatment options from available menus. New information
may change the complexion of the emergency during the call as EDs validate caller
responses or treatment. This system allows the trained ED to "reconfigure" response
levels based on new information. With the foregoing in mind, this system cannot
reasonably be expected to predict exact outcomes or unerring ED performance in all
F-10
Exhibit F
cases. The designers recommend that quality assurance mechanisms be put in place
that include review of each of these "special choice" situations for ED correctness and
consistency. This system cannot, under this license, ever be used by non-IAED-certified
individuals. Failure to maintain an adequate number of certified personnel will void this
license and all materials covered hereunder must be immediately returned.
6. Modification of Software, Cards, or PDS: Other than as specifically provided in this
ESP, YOU shall not modify, change, or alter the PDS Protocols or anything on the
Software, Cards, or PDS without the prior, express, written consent of PDC. This ESP
outlines the scientific process of protocol modification, which is performed by the College
of Fellows of the IAED (see sections titled "Changing the PDS" and "Accepted Process
for PDS Modification" in this ESP). Implementation of Updates, as provided in the
section of this ESP titled "Updates & New Versions," qualifies as a modification, change,
or alteration with PDC's express, written, prior consent. Any unauthorized change made,
and/or implemented in the Software, Cards, or PDS by the Client is a material Breach of
this EULA, giving cause for PDC to terminate this Agreement or withhold further Service
and Support.
7. Derivative Products: In the event any PDS client creates, knowingly or unknowingly,
any derivative product of the PDS, such derivative product shall be owned by PDC and
its use must be discontinued and the derivative (including all copies or drafts of such
work) sent to PDC within 10 days of PDC's written request to do so.
8. Customization of Responses: Authorized customization of the PDS consists of
matching Priority Dispatch Determinant levels (A, B, C, D) with locally determined
response capabilities of equipment and professional personnel. This is limited to
additions to the blank "Response" section (bottom right) of all protocols. The responses
to be inserted in said "Response" section are determined solely by the licensed client.
Local ED authorities are authorized and within their license rights to so add responses to
the specified bottom right section of the relevant cards, without any requirements to
either notify PDC or to coordinate these particulars with PDC (unless required to do so
by separate consulting agreement), and PDC bears no responsibility or liability for actual
local responses selected or used. Additionally, the IAED allows the designated local law
enforcement administrator, or their designee, to edit current Critical EPD Information
(CEI) text to better address locally defined performance expectations. Adding CEI text
shall preserve the intent of the original CEI and vary only by providing more specific
instructions for actions EPD's should take. CEI text shall meet or exceed the standard of
F-11
Exhibit F
practice in law enforcement and neither PDC nor the IAED bears any responsibility or
liability for CEI text used and relied upon.
a. Documentation: The approval and customizations above are generally finalized
and documented through Dispatch Review Committee and Dispatch Steering
meetings. It is YOUR responsibility to ensure sign off signatures and
authorizations are obtained on record in writing, and that all ED personnel are
training in their proper use.
9. Changing the PDS: All written text and printed materials in the PDS, including, without
limitation, Interrogation Questions, Dispatch Determinants, Pre-Arrival Instructions, Post-
Dispatch Instructions and Additional Information are integral to the PDS. Licensed clients
are NOT AUTHORIZED TO MAKE CHANGES TO THE PDS. Changes are made only
by the Accepted Process specified in the section of this ESP titled "Accepted Process for
PDS Modification." This is based on the following:
a. Implementation and Familiarity with the PDS. The PDS has been in
continuous field use since 1978, during which time it has been regularly
enhanced through more than 13 major revisions for New Versions. It is not
prudent for any client to consider recommending system changes prior to gaining
the practical experience and perspective of implementing the PDS and running it
"as is" at a demonstrated rate of high dispatcher compliance.
b. Total Quality Management. A Quality Improvement and Management Program
is required. Key elements shall include:
1. As with other aspects of a sound emergency dispatch program, a
qualified emergency service professional must be engaged as ED
Director. Depending upon the requirements and resources of the
professional emergency service system, this may be a part-time or
a full-time position. In either case, the ED Director must be
empowered with control over professional policies, procedures
and decisions in the system. The ED Director must be regularly
involved at all levels, particularly at the "front line" level where the
EDs handle the calls for ED help. This helps even an experienced
ED professional to become functionally "dispatch literate." The ED
Director should also attend activities of the Quality Assurance
committees and personnel, and evaluate and guide their
performance. It is highly recommended that any ED Director who
F-12
Exhibit F
has not already participated in an IAED Executive Certification
Course, do so before the end of the 6-month implementation
period. This is required for eventual IAED Dispatch Center
accreditation.
2. PRIORITY DISPATCH SYSTEM STEERING and REVIEW
COMMITTEE(S): One or more committees shall be established to
set policy and review performance of ED operations with the PDS.
The ED Director must participate in all material decisions by these
committees and must be included as a signatory on any policy or
procedural determinations made by such committees. A PDS
Steering and Review Committee must be established and meet at
least quarterly to review, evaluate, and approve the application of
policies or procedures affecting PDS operations.
3. CERTIFICATION: It is required that all EDs utilizing the PDS be
certified by the IAED and strongly recommended that all system
administrators, managers, and supervisors be certified in the IAED
1-day National Executive Certification Course. The PDS shall not
under any circumstances be used by untrained or uncertified
individuals. The PDS is not intended to be quality assured or
supervised by untrained or uncertified individuals.
4. CONTINUING DISPATCH EDUCATION ("CDE"): All EDs utilizing
the PDS must participate in a structured CDE program that
provides necessary relearning, familiarization, and updating with
the evolving science of the PDS. At a minimum 12 hours per year
must be devoted to CDE to ensure proper recertification by IAED.
5. DISPATCHER PERFORMANCE EVALUATION AND
PROTOCOL COMPLIANCE: It is required that EDs closely
comply with the PDS interrogation, prioritization coding, and
scripts. To this purpose, the Quality Improvement and
Management Program must include continuous case review and
evaluation according the IAED's Center of Excellence minimum
performance requirements, which are available on its website. Eds
not complying must be officially notified of the findings, retrained,
and, if necessary, eventually disciplined. Non-compliance to the
F-13
Exhibit F
PDS has been demonstrated to significantly decrease its
effectiveness and safety and shall not be tolerated by managers
and employers. In the interest of public safety, the protocol must
be followed.
6. ACCREDITATION: It is strongly recommended that all dispatch
agencies utilizing the PDS achieve the operating performance
standards required for Accreditation by the IAED.
10. Accepted Process for PDS Modification. In 1988, the IAED was formed as a scientific
professional organization for Emergency Dispatching. Within the Academy's structure
exists the College of Fellows - a select group of professional dispatch, public safety and
emergency experts that has adopted the following mission statement: "To conduct an
on-going review of he current standards of care and practice in Emergency Dispatch and
evaluate the tools and the current standards of care and practice in Emergency Dispatch
and evaluate and evaluate the tools and mechanisms used to meet or exceed those
standards."
THROUGH A DEFINED PROCESS, THE FELLOWS REVIEW
RECOMMENDED REVISIONS AND IMPROVEMENTS TO THE PDS IN
A TIMELY, ORGANIZED WAY. THE ONLY AUTHORIZED METHOD OF
PDS PROTOCOL CHANGE IS BY THIS ESTABLISHED SCIENTIFIC
METHOD OF THE COLLEGE OF FELLOWS.
Individual licensed clients are not allowed to change or modify any pre-
printed text or color-coded portion of Cards or Software unless authorized
to do so by PDC, as agent of the IAED College of Fellows. All licensed
clients are encouraged to share their significant recommendations,
discoveries and data with the College in writing (see section titled
"Research Data Sharing" in this BSP). By this scientific method,
knowledge of the PDS can be unified and new improvements shared by
all licensed clients.
11. Unsafe Practices. Unlike the authorized modifications specified above, no other
modification or customization of the Software, Cards or PDS is authorized or allowed
under this License. Any modification or mis-use of the Licensed Product(s) - i.e., a use
not specifically authorized in this written Agreement - must be considered unsafe unless
and until it has been formally approved through the Academy's scientific process
referred to above. Unauthorized modifications to or changes of or misuse of the
F-14
Exhibit F
Licensed Product(s) would constitute material breaches of this Agreement and give
cause for PDC to terminate it and to discontinue support hereunder. Because
unauthorized modification, change and/or misuse of the Licensed Product(s) are
expressly not allowed, YOU are solely responsible for any and all results of any such
unauthorized modification, change or mis-use, and YOU hereby agree to indemnify and
hold PDC and the IAED harmless from and against any damages and/or liabilities that
may arise from any such breach of this Agreement by YOU. An example of an unsafe
practice would include (but not be limited to) the following: The modification or
responses to incorporate a "no-send" or"referral" option is not authorized by this
License. Such practices may only be authorized under a special "Omega" Software
License from the IAED. Any implementation of any such modifications without such an
Omega License is an unsafe practice and must not be undertaken. Interested Licensees
should contact the IAED to pursue any contemplated modification. In addition, the use of
the software, protocols, and training materials by non-IAED-certified individuals is
considered to be an Unsafe Practice and is not allowed under this license agreement.
a. CLIENT NOTIFICATION OF ANY UNSAFE PRACTICE(S) AND ITS
REMEDIES. The Licensor may at any time for any activity it deems as an Unsafe
Practice, notify the Client to cease and desist such practices(s), and may, at the
Licensor's sole discretion, grant a timeframe for such remedies to occur.
Reasonable consideration of sincere proposed processes or attempts by a Client
so notified to effect remedies will not be unreasonably withheld. It is the sole right
of the Licensor to invoke an immediate revocation of this license and the return of
all licensed products if the Unsafe Practice is egregious enough to pose a risk to
the public safety. Additionally, this EULA authorizes PDC or the IAED to contact
applicable city, county, state, or national leaders or officials to inform them of any
performance issues, threats to the safety of the public, or the like.
12. International Dispatch Coding System. The Determinant (and sub-determinant) codes
represent the only widely accepted dispatch coding system in the world. A unified coding
system provides for uniform training, use, data collection, data sharing, and comparative
scientific study. This coding system may not be modified in any way not authorized in
this EULA. As provided above, in the section of this ESP titled "Customization of
Responses," however, it is the licensed client that selects the type of response, whatever
it may be, to be generated by any particular code ( e.g.,10-0-1). In this way, the coding
F-15
Exhibit F
system remains intact while allowing the client full discretion in establishing the local
responses "attached" in parallel to these codes.
13. Standard of Care and Practice. Since 1978, PDC and its originators, have been the
principal contributors to the establishment of safe professional standards for Emergency
Medical Dispatch (and subsequently, Police and Fire Dispatch) care and training. PDC's
Priority Dispatch Systems, as well as its ED training and certification programs, meet or
exceed every applicable standard known to PDC. Through substantial commitments of
expertise and other valuable resources to basic and applied research, development,
quality improvement, dispatch liability, and risk management, PDC is dedicated and
determined to continue setting the standard in ED. In the opinion of some medical-legal
experts, when the current Version of the PDS is properly used by IAED-Certified ED
professionals, the current standard for emergency dispatch has been met, and the most
reasonable actions for both callers and responders have been taken by the ED center.
14. Dedicated Legal and Consultative Support. Priority Dispatch Corp. is available for ED
system evaluations, ED case reviews, and expert opinion and witness services to
currently registered licensed clients of the PDS who have are using the Newest Version,
and to their professional staff of EDs and ED instructors who have been trained, then
certified through the IAED and maintained their IAED certifications current. PDC's
professional staff will vigorously defend proper use of the PDS by professionally trained
EDs against charges of dispatch negligence that may arise. All such services are
available at PDC's then-current fee schedule for such licensed client services.
15. National Q Services. National Q is a quality assurance service provided by PDC. In the
event Customer utilizes National Q, the following shall apply:
a. Pre-National Q: Customer understands that they and PDC shall have the
following meetings before starting the QA services:
i. Stakeholders Meeting - overview of the system and process for directors,
chiefs, and upper administration.
ii. QA/QI Meeting -Analysis of current system with current Customer QA
staff.
F-16
Exhibit F
iii. Protocol Refresher Meeting - overview of Protocol and QA for dispatch
staff.
b. National Q Technical Process:
i. Customer will allow PDC to have remote server access using Securelink®
software to a dedicated physical or virtual workstation configured with
AQUA®, ProQA®Admin Utility, Xlerator®, and the Customer's audio
logger/recorder.
ii. CAD (Computer Aided Dispatch), RMS (Record Management System),
JMS (Jail Management System), and NCIC (National Crime Information
Center) should not be accessible on this dedicated physical or virtual
workstation.
iii. PDC will audit calls remotely using Securelink®. An additional AQUA®
software License per discipline will be provided by PDC for the National Q
Reviewer's access for the term of contract, along with an accompanying
voice logger integration license.
iv. Customer understands that they must always update to the latest version
of AQUA.
v. If there is a Customer related issue (technical or otherwise) that prevents
the National Q Reviewer from reviewing cases, including providing the
associated reporting, PDC will only be responsible for two weeks of case
review volume from the date the issue is resolved looking backward, and
case review going forward.
c. Quality Assurance Process:
i. QA shall be done according to the IAED standards for Accreditation
http://www.emergencydispatch.org/standards for accreditation).
ii. Customer will receive weekly completed QA cases in AQUA based on the
National Q timeline established by the parties. This will allow Customer to
give appropriate and timely feedback.
F-17
Exhibit F
iii. Customer must identify an individual to provide case review feedback to
dispatchers as provided to them by the National Q reviewer. This
individual must be certified by the IAED as an ED-Q. Customer's contact
person (ED-Q) will work directly with the National Q representative. The
Customer's ED-Q will provide any quality improvement feedback and
training to Customer's dispatchers/calltakers based on the feedback they
receive from the National Q Reviewer. In other words, the customer ED-Q
will work with Customer's dispatchers/calltakers to help them understand
structured protocol utilization, address protocol compliance and
performance improvement requirements to become a more effective
dispatcher/calltaker.
iv. In order to ensure the integrity of the QA Service, any feedback provided
by the Customer's ED-Q to its dispatchers/calltakers shall not be contrary
or inconsistent with the National Q Reviewer's audit and comments. If the
ED-Q does not understand or agree with the National Q review of the call
or believes a mistake or miscommunication has occurred the ED-Q
should inform the dispatcher/calltaker that they will research the issue
and contact the National Q representative, so a resolution can be made
through the appeals process. Once it has gone through the appeals
process the decision is final
16. Definitions: This sections contains more detailed definitions of certain terms used in this
EULA.
Cards: The manual version of a PDS in the form of printed reference cards or in the
form of electronic tablets provided by PDC to Client under this EULA
Client, Customer, Agency, Licensee, You, Your: County of Fresno. The end user
licensed to use the licensed Software under the Agreement. This is the end user who
enters into the Agreement with PDC.
Certification and Recertification: When used in this agreement, certification and
recertification mean specifically by the IAED
F-18
Exhibit F
ED, Emergency Dispatch and/or Emergency Dispatcher: These terms are basic to
expanded definitions of Police, Fire and Medical Dispatch and/or Dispatcher, by adding
the letters "P", "F" and/or "M", respectively; as in "EPD", "EFD' and/or "EMD",
respectively.
PDS, Priority Dispatch System: These terms are basic to expanded definitions of
Police, Fire and Medical Priority Dispatch Systems by adding the letters "P", "F" and/or
"M", respectively; as in "PPDS", "FPDS' and/or "MPDS", respectively. For purposes of
this EULA, a reference to PDS also includes a reference to MPDS, FPDS, and/or PPDS.
Update: An Update represents a collection of improvements, modifications, or
enhancements to the Cards, Software or PDS within a Version (as this latter term is
defined below). Generally, Updates are provided to all currently licensed and registered
licensees under an Extended Service Plan with PDC. An Update is designated by the
number to the right of the decimal point in the release number of a Software release
(e.g., Release 12.2 would an Update from Release 12.1). A Version may include a
plurality of Updates (e.g., 11.1, 11.2 and 11.3 would be separate Updates within Version
11).
Version: A version of the Software constitutes the combination of the Software and/or
Cards for a particular PDS. A Version is designated by the version number assigned by
PDC to the left of the decimal point in the release number of a Software release (e.g.,
Version 11 of the Software is designated by 11.x; and the next new Version would be
designated with 12.x). A New Version means, for example, going from 12.2 to 13.0 or in
other words increasing the number to the left of the decimal point.
17. Additional PDC Products: Beyond the products and services discussed in this EULA,
PDC also provides additional products/services to the Customer including, but not
limited to, Field Responder Guides, Quality Assurance Guides, and Send Cards. As
applicable, terms of this EULA also apply to the additional products and services
provided by PDC to the Customer.
18. Cloud Services.
a. Cloud Services. PDC may make the Software or certain other products, or
services purchased by Customer from PDC (collectively, "Cloud Services") and made
F-19
Exhibit F
available to Customer online or through another hosted environment pursuant to a
purchase order or other agreement between PDC and Customer.
b. Access and Use.
(i) Provision of Access. Subject to the terms and conditions of this EULA, PDC
hereby grants Customer a revocable, non- exclusive, non-transferable, non-
sublicensable, limited right to access and use the Cloud Services during the term (the
"Term") set out in the applicable agreement between Customer and PDC (the "Customer
Agreement") solely for Customer's internal business operations by Authorized Users in
accordance with the terms and conditions herein. PDC shall provide you the necessary
passwords and access credentials to allow you to access the Cloud Services.
"Authorized User" means Customer and Customer's employees, consultants,
contractors, or agents who are authorized by Customer to access and use the Cloud
Services under the rights granted to Customer pursuant to this EULA and any underlying
agreement between Customer and PDC.
(ii) Documentation License. Subject to the terms and conditions contained in this
Agreement, PDC hereby grants Customer a non-exclusive, non-sublicensable, non-
transferable license for Authorized Users to use PDC's user manuals, handbooks,
guides relating to the Cloud Services provided by PDC to Customer either electronically
or in hard copy form, and end-user documentation relating to the Cloud Services during
the Term solely for Customer's internal business purposes in connection with use of the
Cloud Services.
(iii) Use Restrictions. Customer shall not, and shall not permit any Authorized Users
to, use the Cloud Services, any software component of the Cloud Services, or
Documentation for any purposes beyond the scope of the access granted in this EULA
or the applicable Customer Agreement. Customer shall not at any time, directly or
indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create
derivative works of the Cloud Services, any software component of the Cloud Services,
or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense,
F-20
Exhibit F
assign, distribute, publish, transfer, or otherwise make available the Cloud Services or
Documentation except as expressly permitted under this Agreement; (iii) reverse
engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain
access to any software component of the Cloud Services, in whole or in part; (iv) remove
any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud
Services or Documentation in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual property right or other right of any
person, or that violates any applicable law, regulation, or rule.
(iv) Aggregated Statistics. Notwithstanding anything to the contrary in this
Agreement, PDC may monitor Customer's use of the Cloud Services and collect,
compile, use, and analyze data and information related to Customer's use of the Cloud
Services to be used by PDC in an aggregated and anonymized manner, including to
compile statistical and performance information related to the provision and operation of
the Cloud Services ("Aggregated Statistics"). As between PDC and Customer, all right,
title, and interest in Aggregated Statistics, and all intellectual property rights therein,
belong to and are retained solely by PDC. You acknowledge that PDC may compile
Aggregated Statistics based on Customer Data input into the Cloud Services. You agree
that PDC may (i) make Aggregated Statistics publicly available in compliance with
applicable law, and (ii) use Aggregated Statistics to the extent and in the manner
permitted under applicable law; provided that such Aggregated Statistics do not identify
Customer or Customer's Confidential Information.
(v) Reservation of Rights. PDC reserves all rights not expressly granted to Customer
in this EULA or the applicable Customer Agreement. Except for the limited rights and
licenses expressly granted under this Agreement or the applicable Customer
Agreement nothing in this Agreement grants, by implication, waiver, estoppel, or
otherwise, to Customer or any third party any intellectual property rights or other right,
title, or interest in or to the Cloud Services, the Documentation, and all intellectual
property provided to Customer or any other Authorized User in connection with the
F-21
Exhibit F
foregoing (the "PDC IP"). For the avoidance of doubt, PDC IP includes Aggregated
Statistics and any information, data, or other content derived from PDC's monitoring of
Customer's access to or use of the Cloud Services but does not include Customer Data.
"Customer Data" means, other than Aggregated Statistics, information, data, and other
content, in any form or medium, that is submitted, posted, or otherwise transmitted by or
on behalf of Customer or any other Authorized User through the Cloud Services.
(vi) Suspension. Notwithstanding anything to the contrary in this Agreement, PDC
may temporarily suspend Customer's and any other Authorized User's access to any
portion or all of the Cloud Services if: (i) PDC reasonably determines that (A) there is a
threat or attack on any of the PDC IP; (B) Customer's or any other Authorized User's use
of the PDC IP disrupts or poses a security risk to the PDC IP or to any other customer or
vendor of PDC; (C) Customer or any other Authorized User is using the PDC IP for
fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to
continue its business in the ordinary course, made an assignment for the benefit of
creditors or similar disposition of its assets, or become the subject of any bankruptcy,
reorganization, liquidation, dissolution, or similar proceeding; or (E) PDC's provision of
the Cloud Services to Customer or any other Authorized User is prohibited by applicable
law; (ii) any vendor of PDC has suspended or terminated PDC's access to or use of any
third-party services or products required to enable Customer to access the Cloud
Services; or (iii) in accordance with Section 5 (any such suspension described in
subclause (i), (ii), or (iii), a "Service Suspension"). PDC shall use commercially
reasonable efforts to provide written notice of any Service Suspension to Customer and
to provide updates regarding resumption of access to the Cloud Services following any
Service Suspension. PDC shall use commercially reasonable efforts to resume providing
access to the Cloud Services as soon as reasonably possible after the event giving rise
to the Cloud Services Suspension is cured. PDC will have no liability for any damage,
liabilities, losses (including any loss of or profits), or any other consequences that
Customer or any other Authorized User may incur as a result of a Service Suspension.
F-22
Exhibit F
C. Customer Responsibilities.
(i) Account Use. Customer is responsible and liable for all uses of the Cloud
Services and Documentation resulting from access provided by Customer, directly or
indirectly, whether such access or use is permitted by or in violation of this Agreement.
Without limiting the generality of the foregoing, Customer is responsible for all acts and
omissions of Authorized Users, and any act or omission by an Authorized User that
would constitute a breach of this Agreement if taken by Customer will be deemed a
breach of this Agreement by Customer. Customer shall use reasonable efforts to make
all Authorized Users aware of this Agreement's provisions as applicable to such
Authorized User's use of the Cloud Services and shall cause Authorized Users to comply
with such provisions.
(ii) Customer Data. Customer hereby grants to PDC a non-exclusive, royalty-free,
worldwide license to reproduce, distribute, and otherwise use and display the Customer
Data and perform all acts with respect to the Customer Data as may be necessary for
PDC to provide the Cloud Services to Customer, and a non-exclusive, perpetual,
irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and
otherwise use and display Customer Data incorporated within the Aggregated Statistics.
Customer will ensure that Customer Data and any Authorized User's use of Customer
Data will not violate any policy or terms referenced in or incorporated into this
Agreement or any applicable law. Customer is solely responsible for the development,
content, operation, maintenance, and use of Customer Data.
(iii) Passwords and Access Credentials. Customer is responsible for keeping your
passwords and access credentials associated with the Cloud Services confidential.
Customer will not sell or transfer them to any other person or entity. Customer will
promptly notify us about any unauthorized access to your passwords or access
credentials.
(iv) Third-Party Products. The Cloud Services may permit access to Third-Party
Products. For purposes of this Agreement, such Third-Party Products are subject to their
F-23
Exhibit F
own terms and conditions presented to Customer for acceptance within the Cloud
Services by website link or otherwise. If Customer does not agree to abide by the
applicable terms for any such Third-Party Products, then Customer should not install,
access, or use such Third-Party Products.
d. Intellectual Property Ownership; Feedback. As between the Parties, (a) PDC
owns all right, title, and interest, including all intellectual property rights, in and to the
Cloud Services and (b) Customer owns all right, title, and interest, including all
intellectual property rights, in and to Customer Data. If Customer or any of its
employees, contractors, or agents sends or transmits any communications or materials
to PDC by mail, email, telephone, or otherwise, suggesting or recommending changes to
the Cloud Services, including without limitation, new features or functionality relating
thereto, or any comments, questions, suggestions, or the like ("Feedback"), PDC is free
to use such Feedback irrespective of any other obligation or limitation between the
Parties governing such Feedback. All Feedback is and will be treated as non-
confidential. Customer hereby assigns to PDC on its behalf, and shall cause Customer's
employees, contractors, and agents to assign, all right, title, and interest in, and PDC is
free to use, without any attribution or compensation to Customer or any third party, any
ideas, know-how, concepts, techniques, or other intellectual property rights contained in
the Feedback, for any purpose whatsoever, although PDC is not required to use any
Feedback.
(i) Limited Warranty and Warranty Disclaimer. PDC warrants that it provides Cloud
Services using a commercially reasonable level of care and skill. THE FOREGOING
WARRANTY DOES NOT APPLY TO, AND PDC STRICTLY DISCLAIMS, ALL
WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(ii) Customer Warranty. Customer warrants that it owns all right, title, and interest,
including all intellectual property rights, in and to Customer Data.
(iii) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SUBPART (i)
ABOVE THE CLOUD SERVICES ARE PROVIDED "AS IS" AND PDC SPECIFICALLY
F-24
Exhibit F
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE. PDC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-
INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE, OR TRADE PRACTICE. PDC MAKES NO WARRANTY OF ANY KIND THAT
THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE
THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED
RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD
PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE,
ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT
ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
F-25