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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Agreement No. 24-216
1 SERVICE AND SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT
2 This Service and Software License, Maintenance and Support Agreement ("Agreement")
3 is dated May 21, 2024 and is between Journal Technologies, Inc., a Utah corporation
4 whose address is at 949 E. 2nd Street, Los Angeles, CA 90012("Contractor"), and the County of
5 Fresno, a political subdivision of the State of California ("County").
6 Recitals
7 A. The County has a need for licensing, maintenance and support services, and
8 configuration (agreed to in a Statement of Work, as defined herein) for the District Attorney's
9 (DA) case management software.
10 B. Byway of County agreement Number A-16-206, the Contractor has implemented a case
11 management system and has provided the licensing, maintenance, and support for that system
12 for a period of seven years. The Contractor's services have included extensive customization of
13 their case management software solution, through interfaces with the Fresno Superior Court's
14 Odyssey File & Serve (OFS) and Integration Publisher (IP) interfaces, the Clovis Police
15 Department, via the Law Enforcement Agency (LEA) interface, and with the Fresno County
16 Probation Department, through the Probation Interface.
17 C. The County desires to again engage the Contractor, through a suspension of
18 competition, for the continued licensing, configuration, and maintenance and support services
19 for the DA's case management software.
20 The parties therefore agree as follows:
21 Article 1
22 Contractor's Services
23 1.1 Scope of Services. The Contractor shall perform all of the services provided in
24 Exhibit A to this Agreement, and shall provide software User licenses, and Maintenance and
25 Support thereof, as defined herein.
26 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
27 able to perform all of the services provided in this Agreement.
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DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
1 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
2 applicable federal, state, and local laws and regulations in the performance of its obligations
3 under this Agreement, including but not limited to workers compensation, labor, and
4 confidentiality laws and regulations.
5 1.4 License Grant and License Term. The Contractor hereby grants to the County, at
6 no additional cost aside from the annual License, Maintenance and Support Fees set forth in
7 Exhibit B hereto (Compensation), a non-exclusive, non-perpetual, non-transferable personal
8 license to install and use the Contractor's Licensed Software (as defined in Section 1 of Exhibit
9 A) in object code only, for the County's internal business purposes (and not to process the data
10 of any other entity or agency, except to the extent the other entity or agency uses the County's
11 public facing site), as well as to support the number of County databases and the number of
12 named users of the County. As stated, the software license is non-perpetual, and County's
13 rights with respect to the Licensed Software are at all times and in all respects subject to the
14 terms and conditions of this Agreement, and County's "Users" may "Use" (as such terms are
15 defined in Section 1of Exhibit A) the Licensed Software only during the "License Term" (as
16 defined in Section 1 of Exhibit A),and only so long as County has paid the required License,
17 Maintenance and Support Fees for such Users and is not otherwise in default under this
18 Agreement. The Licensed Software is the proprietary information and a trade secret of
19 Contractor and this Agreement grants County no title or rights of ownership in the Licensed
20 Software. The County shall be entitled to software updates, upgrades, enhancements, new
21 versions, bug fixes, other improvements to the Licensed Software, as identified in Section 3 of
22 Exhibit A, as and when released by the Contractor to the Contractor's customers generally, and
23 access to the Licensed Software, and to technical assistance relating to the Licensed Software
24 for the License Term, which shall run concurrently with the term of this Agreement unless earlier
25 terminated in accordance with the terms hereof.
26 1.5 Certain Specific Limitations. County shall not, and shall not permit any User or
27 other party to (a) copy or otherwise reproduce, reverse engineer or decompile all or any part of
28 the Licensed Software, (b) make alterations to or modify the Licensed Software, (c) grant
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1 sublicenses, leases or other rights in or to the Licensed Software, or (d) permit any party access
2 to the Licensed Software for purposes of programming against it. County is solely responsible
3 for all data entered into, contained in and modified while using the Licensed Software, including,
4 without limitation, the accuracy, responsibility for archival, loss of, use and misuse of all such
5 data.
6 1.6 Coordination of Work. The Contractor shall coordinate all work with the County to
7 minimize any interruptions to the normal operation of County operations, through the appointee
8 as identified in Section 2.1 of this Agreement.
9 1.7 Infringement. The Contractor further represents and warrants that it has the right to
10 grant the licenses granted to the County hereunder and that the services provided under this
11 Agreement do not infringe upon or violate the United States patent of rights of any third party
12 and do not infringe upon or violate the copyright, or trade secret right of any third party. This
13 Section survives the termination of this agreement.
14 1.8 Viruses & Disabling Mechanisms. The Contractor shall use commercially
15 reasonable, diligent measures to screen the licensed programs provided under this Agreement
16 to avoid introducing, or coding of, any virus or other destructive programming designed to permit
17 unauthorized access or use by third parties to the Software installed on the County's systems
18 (as defined in Section 1 of Exhibit A and hereafter referred to as "County Systems"), or to
19 disable or damage the County's Systems Without limiting the rights and remedies of the
20 County, in the event any virus is introduced into the County's Systems through any of the
21 licensed programs provided under this Agreement, whether or not such introduction is
22 attributable to the Contractor (including the Contractor's failure to perform its obligations under
23 this Agreement), the Contractor shall, as soon as practicable and pursuant to a Statement of
24 Work, use its diligent and commercially reasonable efforts to assist the County in eliminating
25 the effects of the virus, and if the virus causes a loss of operational efficiency or loss of data,
26 and upon the County's request, the Contractor will, diligently work as soon as practicable
27 pursuant to a Statement of Work to the extent the introduction of the Virus was not attributable
28 to Contractor, to contain and remedy the problem and to restore lost data resulting from the
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1 introduction of such virus. The Contractor shall not insert into any of the licensed programs
2 provided in this Agreement any code or other device that would have the effect of disabling or
3 otherwise shutting down all or any portion of the licensed programs. The Contractor shall not
4 invoke such code or other device at any time, including upon expiration or termination of this
5 Agreement for any reason. This section survives the termination of this Agreement.
6 1.9 ADA Compliance. The public-facing aspects of Contractor's "Products and
7 Services" (as defined in Section 1 of Exhibit A) shall be in Compliance with the Americans with
8 Disabilities Act of 1990 (ADA) shall be the sole responsibility of the Contractor. The Contractor
9 shall indemnify, defend, and hold the County (including its officers, agents, employees, and
10 volunteers) harmless from liability of any nature or kind, including damages, costs and expenses
11 (including attorney's fees and costs) arising from the public-facing aspects of Contractor's
12 Products and Services' non-compliance therewith, including compliance with ADA Section 508
13 of the Rehabilitation Act of 1973. This section survives the termination of this Agreement.
14 Article 2
15 County's Responsibilities
16 2.1 County Contractor Administrator. The County appoints the Director of Internal
17 Services/Chief Information Officer ("CIO"), or his or her designee, as the County's Contract
18 Administrator with full authority to communicate with the Contractor in all matters concerning
19 this Agreement.
20 2.2 Notice to Proceed. The County shall issue a Notice to Proceed for each order or
21 SOW, (as defined in Section 1 of Exhibit A) for which the County may desire, and shall issue
22 any subsequent Change Requests, which the County may desire, for each Order or SOW, as
23 applicable.
24 2.3 Written Acceptance. The County shall provide a written acceptance of all Orders or
25 SOWs, upon the County's determination that the Contractor has fully performed under the Order
26 or SOW, at the within 30 days of the conclusion of the work that is the subject of the Order or
27 SOW, as applicable.
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1 2.4 Contractor Access. The County will ensure that the Contractor's consultants (as
2 identified by Contractor to the Director of Internal Services/CIO or his or her designee prior to
3 the start of any services performed by Contractor under this Agreement) have access to the
4 County's network and systems as required during the County's normal business hours, which
5 are 8 a.m. to 5 p.m., Monday through Friday, except for County holidays and days in which the
6 Office of the Clerk of the Board of Supervisors is officially closed to the public.
7 2.5 Safeguarding Licensed Software. The County will follow its reasonable practices to
8 safeguard the Licensed Software delivered to County by Contractor. A copy of County's
9 "Information Technology (IT) Standards and Preferences" shall be made available to Contractor
10 upon request.
11 Article 3
12 Compensation, Invoices, and Payments
13 3.1 Compensation. The County agrees to pay, and the Contractor agrees to receive,
14 compensation for the performance of its services under this Agreement as described in Exhibit
15 B to this Agreement.
16 3.2 Maximum Compensation. Pursuant to Article 4 of this Agreement, the term of this
17 Agreement is an initial three-year term, with two, optional 12-month extension periods. The total
18 maximum compensation payable to the Contractor during the initial term of this Agreement is
19 $978,230. If this Agreement is extended for the first additional year as provided in Article 4,
20 below, the total maximum compensation payable to the Contractor will increase to $1,292,092.
21 If this Agreement is extended for the second additional year as provided in Article 4, below, the
22 total maximum compensation payable to the Contractor for Contractor Products and Services
23 will increase to $1,618,509. The contract total includes $386,256 for additional licensing and
24 professional services, which include, but is not limited to implementation, and configuration;
25 provided that if County requests (i) use of the Licensed Software is increased by such amount of
26 Users and/or (ii) such amount of additional professional services that would, based on the rates
27 set forth in Exhibit B, exceed the not-to-exceed amount, such amount would be adjustment only
28 pursuant to an amendment to the Agreement what is approved by the County's Board of
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1 Supervisors.. In the event the total maximum compensation amount in the Initial Term, and/or
2 Year 4 is not fully expended, the remaining unspent funding amounts shall roll over to each
3 subsequent term's established maximum compensation.
4 The Contractor acknowledges that the County is a local government entity and does so with
5 notice that the County's powers are limited by the California Constitution and by State law, and
6 with notice that the Contractor may receive compensation under this Agreement only for
7 services performed according to the terms of this Agreement and while this Agreement is in
8 effect, and subject to the maximum amount payable under this section. The Contractor further
9 acknowledges that County employees have no authority to pay the Contractor except as
10 expressly provided in this Agreement.
11 3.3 Contractor Products and Services. The Contractor's Services are purchased by
12 the County during an Order Term (as defined in Section 1 of Exhibit A) specified in each Order
13 or SOW; the Licensed Software is leased by the County for the duration of the License Term,
14 defined in Section 1 of Exhibit A. Additional Contractor Products and Services, which may
15 include, but is not limited to, licenses, modules, and features, may be added during an Order
16 Term (as described in 3.4 below.), to the Licensed Software as determined necessary by the
17 Contract Administrator.
18 3.4 Annual Fees. The County and the Contractor both agree that Annual License,
19 Maintenance and Support fees (as identified in Exhibit B) have already been paid for the
20 License term June 10, 2023 - July 9, 2024. Annual License, Maintenance and Support fees are
21 due annually thereafter, at the beginning of any extended term, within forty-five (45) days of
22 receipt of invoice. Exhibit B of this Agreement identifies the Licensed Software and Services
23 used in this Agreement. Annual License, Maintenance and Support Fees are to be determined
24 by the number of Users as of the first date of each year of the License Term, beginning with the
25 effective date hereof. County may increase the number of Users at any time upon written notice
26 to Contractor, which shall be promptly followed by payment reflecting the increased Annual
27 License, Maintenance and Support Fees pro-rated for any partial year, so long as said payment
28 does not violate Section 3.2 herein. County may reduce the number of Users, but such
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1 reduction shall only become effective as of the first date of the following year of the License
2 Term, provided that County has provided Contractor written notice of such reduction sixty (60)
3 days prior to the applicable effective date of such reduction.
4 3.5 Ordering Products and Services. The Parties may execute one or more Order or
5 SOW related to the sale and purchase of the Contractor's Products and Services. Each Order or
6 SOW will include an itemized list of the Contractor Products and Services as well as the Order
7 Term for such Contractor Products and Services. Each Order or SOW must, generally, be
8 signed by the Parties. Each Order or SOW shall be governed by this Agreement regardless of
9 any pre-printed legal terms on each Order or SOW, and by this reference is incorporated herein.
10 3.6 Invoices. The Contractor shall submit invoices to the County of Fresno District
11 Attorney, 2100 Tulare Street, Fresno, CA 93721. The Contractor shall submit each invoice
12 within 60 days after the period in which the Contractor performs services and in any case within
13 60 days after the end of the term or termination of this Agreement.
14 3.7 Payment. The County shall pay each correctly completed and timely submitted invoice
15 within 45 days after receipt. The County shall remit any payment to the Contractor's address
16 specified in the invoice.
17 3.8 Incidental Expenses. The Contractor is solely responsible for all of its costs and
18 expenses that are not specified as payable by the County under this Agreement.
19 Article 4
20 Term of Agreement
21 4.1 Term. This Agreement is effective May 24, 2023 and terminates on June 9, 2026,
22 except as provided in section 4.2, "Extension," or Article 6, "Termination and Suspension,"
23 below.
24 4.2 Extension. The term of this Agreement may be extended for no more than two (2),
25 one-year periods only upon the written approval of both parties at least 30 days before the first
26 day of the next one-year extension period. The CIO or his or her designee is authorized to sign
27 the written approval on behalf of the County based on the Contractor's satisfactory
28 performance. The extension of this Agreement by the County is not a waiver or compromise of
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1 any default or breach of this Agreement by the Contractor existing at the time of the extension
2 whether or not known to the County.
3 Article 5
4 Notices
5 5.1 Contact Information. The persons and their addresses having authority to give and
6 receive notices provided for or permitted under this Agreement include the following:
7
For the County:
8 Director of Internal Services/Chief Information Officer
County of Fresno
9 333 W. Pontiac Way
Clovis, CA 93612
10 isdcontracts(a)-fresnocountyca.gov
11 For the Contractor:
Corporate Secretary, In-House Counsel
12 Journal Technologies, Inc.
915 E 1 st Street
13 Los Angeles, CA, 90012
bcardile@journaltech.com
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5.2 Change of Contact Information. Either party may change the information in section
15
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 provided
17
for or permitted under this Agreement must be in writing, state that it is a notice provided under
18
this Agreement, and be delivered either by personal service, by first-class United States mail, by
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an overnight commercial courier service, by telephonic facsimile transmission, or by Portable
20
Document Format (PDF) document attached to an email.
21
(A) A notice delivered by personal service is effective upon service to the recipient.
22
(B) A notice delivered by first-class United States mail is effective three County
23
business days after deposit in the United States mail, postage prepaid, addressed to the
24
recipient.
25
(C)A notice delivered by an overnight commercial courier service is effective one
26
County business day after deposit with the overnight commercial courier service,
27
delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
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the recipient.
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1 (D)A notice delivered by PDF document attached to an email is effective when
2 transmission to the recipient is completed (but, if such transmission is completed outside
3 of County business hours, then such delivery is deemed to be effective at the next
4 beginning of a County business day), provided that the sender maintains a machine
5 record of the completed transmission.
6 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
7 nothing in this Agreement establishes, waives, or modifies any claims presentation
8 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
9 of Title 1 of the Government Code, beginning with section 810).
10 Article 6
11 Termination and Suspension
12 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
13 contingent on the approval of funds by the appropriating government agency. If sufficient funds
14 are not allocated, then the County, upon at least 30 days' advance written notice to the
15 Contractor, may:
16 (A) Modify the services provided by the Contractor under this Agreement; or
17 (B) Terminate this Agreement.
18 6.2 Termination for Breach.
19 (A) Upon determining that a breach (as defined in paragraph (C) below) has
20 occurred, the County may give written notice of the breach to the Contractor. The written
21 notice may suspend performance under this Agreement, and must provide at least 30
22 days for the Contractor to cure the breach.
23 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
24 time stated in the written notice, the County may terminate this Agreement immediately.
25 (C) For purposes of this section, a breach occurs when, in the determination of the
26 County, the Contractor has:
27 (1) Obtained or used funds illegally or improperly;
28 (2) Failed to comply with any part of this Agreement;
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1 (3) Submitted a substantially incorrect or incomplete report to the County; or
2 (4) Improperly performed any of its obligations under this Agreement.
3 (D) Contractor may, upon thirty (30) days prior written notice to County, terminate
4 this Agreement if County fails to comply with any material term or condition of this
5 Agreement unless County cures such failure within such thirty (30) day period, or other
6 such timeframe as may be mutually agreed upon in writing by the Parties.
7 6.3 Termination without Cause. In circumstances other than those set forth above, the
8 County CIO may terminate this Agreement by giving at least 30 days advance written notice to
9 the Contractor.
10 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
11 under this Article 6 is without penalty to or further obligation of the County.
12 6.5 County's Rights upon Termination. Upon termination for breach under this Article
13 6, any prorated Annual License, Maintenance and Support Fees previously paid by County to
14 the Contractor for the current year beyond the termination date shall be returned to County
15 within 45 days of the date of termination.
16 Article 7
17 Independent Contractor
18 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
19 agents, employees, and volunteers, is at all times acting and performing as an independent
20 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
21 venturer, partner, or associate of the County.
22 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
23 manner or method of the Contractor's performance under this Agreement, but the County may
24 verify that the Contractor is performing according to the terms of this Agreement.
25 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
26 right to employment rights or benefits available to County employees. The Contractor is solely
27 responsible for providing to its own employees all employee benefits required by law. The
28 Contractor shall save the County harmless from all matters relating to the payment of
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1 Contractor's employees, including compliance with Social Security withholding and all related
2 regulations.
3 7.4 Services to Others. The parties acknowledge that, during the term of this
4 Agreement, the Contractor may provide services to others unrelated to the County.
5 Article 8
6 Indemnity and Defense
7 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
8 County (including its officers, agents, employees, and volunteers) against all claims, demands,
9 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
10 liabilities of any kind to the County, occurring or resulting from the negligence or willful
11 misconduct of Contractor (or any of its officers, agents, subcontractors, or employees) under
12 this Agreement. The County may conduct or participate in its own defense without affecting the
13 Contractor's obligation to indemnify and hold harmless or defend the County. NEITHER PARTY
14 SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, OR CONSEQUENTIAL DAMAGES
15 OR LOSS OF ANTICIPATED PROFITS IN CONNECTOIN WITH OR ARISING OUT OF THE
16 SUBJECT MATTER OF THIS AGREEMENT. FURTHERMORE, COUNTY'S TOTAL LIABILITY
17 WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS
18 AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES
19 PAYABLE HEREUNDER TO CONTRACTOR. IN NO EVENT SHALL CONTRACTOR'S TOTAL
20 LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS
21 AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAID
22 HEREUNDER TO CONTRACTOR.
23 8.2 Survival. This Article 8 survives the termination of this Agreement.
24 Article 9
25 Insurance
26 9.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
27 Agreement.
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1 Article 10
2 Health Insurance Portability and Accountability Act
3 10.1 The parties to the Agreement shall be in strict conformance to the provisions of
4 Exhibit H.
5 Article 11
6 Ownership of Data
7 11.1 Ownership of Data. The parties acknowledge and agree that all the County's data
8 (Data), is and shall remain the exclusive property of the County. The Contractor acknowledges
9 that in performing its obligations under the Agreement it may have access to the County's
10 networks and Data. The Contractor shall use and access such Data only as necessary for the
11 purpose of providing the services and supporting the Software as agreed.
12 11.2 Ownership of Licensed Software. The parties acknowledge and agree that, as
13 between the Contractor and the County, title and full ownership of all rights in and to the
14 Licensed Software, System Documentation (as defined in Exhibit A), and all other materials
15 provided to the County by the Contractor under the terms of this Agreement shall remain with
16 the Contractor. The County will take reasonable steps to protect trade secrets (as defined in
17 Government Code Section 7924.510(f)) of the Licensed Software and System Documentation,
18 and which are identified as such by the Contractor. The County may not disclose or make
19 available to third parties the Licensed Software or System Documentation or any portion
20 thereof, unless otherwise required by court order. The Contractor shall own all right, title and
21 interest in and to all corrections, modifications, enhancements, programs, and work product
22 conceived, created or developed, alone or with the County or others, as a result of or related to
23 the performance of this Agreement, including all proprietary rights therein and based thereon.
24 Except and to the extent expressly provided herein, the Contractor does not grant to the County
25 any right or license, express or implied, in or to the Licensed Software and System
26 Documentation or any of the foregoing. The parties acknowledge and agree that, as between
27 the Contractor and the County, full ownership of all rights in and to all County data, whether in
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1 magnetic or paper form, including without limitation printed output from the System, are the
2 exclusive property of the County.
3 11.3 Contractor Intellectual Property Rights. The Contractor shall grant a non-
4 exclusive, non-transferrable, non-perpetual, personal license, at no additional cost, to the
5 County to use Contractor Products and Services to the extent allowed in the relevant Order or
6 SOW (Permitted Use). The County may reproduce, modify or create derivative works for its own
7 use, public display, and use any and all of Contractor's copyrights in the homepage layout
8 wireframe, sitemap, draft homepage design concept(s) interior page layouts (collectively, the
9 "Contractor Designs") embodied in County's website and intranet, which are prepared or caused
10 to be prepared by the Contractor under this Agreement. All rights not licensed are reserved to
11 the Contractor and no rights may be implied. The Contractor retains all intellectual property
12 rights in the Software, and the County agrees to implement software protection measures
13 designed to prevent unauthorized use and copying of the Software.
14 11.4 Data Sources. Data uploaded into Contractor Products and Services must be
15 brought in from County sources (interactions with end users and opt-in contact lists). The
16 County cannot upload purchased contact information into Contractor Products and Services
17 without the Contractor's written permission, which shall not be unreasonably withheld or
18 delayed, and professional services support for list cleansing. The Contractor understands and
19 acknowledges, however, that the County is a government agency and intends to use the
20 Contractor for the purpose of publishing information required by law to be available to the public.
21 Article 12
22 Confidentiality & Data Security
23 12.1 Confidentiality. The County and the Contractor may have access to information that
24 the other considers to be a trade secret as defined in California Government Code section
25 7924.510(f).
26 12.2 Each party shall use the other's Information only to perform its obligations under, and
27 for the purposes of, the Agreement. Neither party shall use the Information of the other Party for
28 the benefit of a third party. Each Party shall maintain the confidentiality of all Information in the
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1 same manner in which it protects its own information of like kind, but in no event shall either
2 Party take less than reasonable precautions to prevent the unauthorized disclosure or use of the
3 Information.
4 12.3 The Contractor shall not disclose the County's data except to any third parties as
5 necessary to operate the Contractor Products and Services (provided that the Contractor
6 hereby grants to the County, at no additional cost, a non-perpetual, noncancelable, worldwide,
7 nonexclusive, personal license to utilize any data, on an anonymous or aggregate basis only,
8 that arises from the use of the Contractor Products and Services by the Contractor, whether
9 disclosed on, subsequent to, or prior to the Effective Date, to improve the functionality of the
10 Contractor Products and Services and any other legitimate business purpose, subject to all legal
11 restrictions regarding the use and disclosure of such information).
12 12.4 Upon termination of the Agreement, or upon a Party's request, each Party shall
13 return to the other all Information of the other in its possession. All provisions of the Agreement
14 relating to confidentiality, ownership, and limitations of liability shall survive the termination of
15 the Agreement.
16 12.5 All services performed by the Contractor shall be in strict conformance with all
17 applicable Federal, State of California, and/or local laws and regulations relating to
18 confidentiality, including but not limited to, California Civil Code, California Welfare and
19 Institutions Code, California Health and Safety Code, California Code of Regulations, and the
20 Code of Federal Regulations.
21 12.6 Data Security. The Contractor shall be responsible for the privacy and security
22 safeguards, as identified in Exhibit E, entitled "Data Security." To the extent required to carry out
23 the assessment and authorization process and continuous monitoring, to safeguard against
24 threats and hazards to the security, integrity, and confidentiality of any County data collected
25 and stored by the Contractor, Contractor shall afford the County access as necessary at the
26 Contractor's reasonable discretion, to the Contractor's facilities, installations, and technical
27 capabilities; provided, however, that because the Licensed Software is hosted locally on
28 County's servers, neither County nor Contractor expect, and nor does this Agreement create the
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1 obligation or expectation, that Contractor shall collect or store any of County's data. If new or
2 unanticipated threats or hazards are discovered by either the County or the Contractor, or if
3 existing safeguards have ceased to function, the discoverer shall immediately bring the situation
4 to the attention of the other party.
5
6 Article 13
7 Inspections, Audits, and Public Records
8 13.1 Inspection of Documents. The Contractor shall make available to the County, and
9 the County may examine at any time during Business Hours and as often as the County deems
10 necessary, all of the Contractor's records and data with respect to the matters covered by this
11 Agreement, excluding attorney-Contractor privileged communications. The Contractor shall,
12 upon request by the County, permit the County to audit and inspect all of such records and data
13 to ensure the Contractor's compliance with the terms of this Agreement.
14 13.2 State Audit Requirements. If the compensation to be paid by the County under this
15 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
16 California State Auditor, as provided in Government Code section 8546.7, for a period of three
17 years after final payment under this Agreement. This section survives the termination of this
18 Agreement.
19 13.3 Public Records. The County is not limited in any manner with respect to its public
20 disclosure of this Agreement or any record or data that the Contractor may provide to the
21 County, excluding, for the avoidance of doubt, the Licensed Software itself. The County's public
22 disclosure of this Agreement or any record or data that the Contractor may provide to the
23 County may include but is not limited to the following:
24 (A) The County may voluntarily, or upon request by any member of the public or
25 governmental agency, disclose this Agreement to the public or such governmental
26 agency.
27 (B) The County may voluntarily, or upon request by any member of the public or
28 governmental agency, disclose to the public or such governmental agency any record or
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1 data that the Contractor may provide to the County, unless such disclosure is prohibited
2 by court order.
3 (C) This Agreement, and any record or data that the Contractor may provide to the
4 County, is subject to public disclosure under the Ralph M. Brown Act (California
5 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
6 (D) This Agreement, and any record or data that the Contractor may provide to the
7 County, is subject to public disclosure as a public record under the California Public
8 Records Act (California Government Code, Title 1, Division 10, Chapter 3, beginning
9 with section 7920.200) ("CPRA")
10 (E) This Agreement, and any record or data that the Contractor may provide to the
11 County, is subject to public disclosure as information concerning the conduct of the
12 people's business of the State of California under California Constitution, Article 1,
13 section 3, subdivision (b).
14 (F) Any marking of confidentiality or restricted access upon or otherwise made with
15 respect to any record or data that the Contractor may provide to the County shall be
16 disregarded and have no effect on the County's right or duty to disclose to the public or
17 governmental agency any such record or data.
18 (G)Notwithstanding the foregoing, County agrees the Licensed Software is a trade
19 secret as defined in California Government Code section 7924.510(f).
20 13.4 Public Records Act Requests. If the County receives a written or oral request
21 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
22 and which the County has a right, under any provision of this Agreement or applicable law, to
23 possess or control, then the County may demand, in writing, that the Contractor deliver to the
24 County, for purposes of public disclosure, the requested records that may be in the possession
25 or control of the Contractor. Within five business days after the County's demand, the
26 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
27 possession or control, together with a written statement that the Contractor, after conducting a
28 diligent search, has produced all requested records that are in the Contractor's possession or
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1 control, or (b) provide to the County a written statement that the Contractor, after conducting a
2 diligent search, does not possess or control any of the requested records. The Contractor shall
3 cooperate with the County with respect to any County demand for such records. If the
4 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
5 CPRA or other applicable law, it must deliver the record or data to the County and assert the
6 exemption by citation to specific legal authority within the written statement that it provides to
7 the County under this section. The Contractor's assertion of any exemption from disclosure is
8 not binding on the County, but the County will give at least 10 days' advance written notice to
9 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
10 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
11 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
12 failure to produce any such records, or failure to cooperate with the County with respect to any
13 County demand for any such records.
14 Article 14
15 Disclosure of Self-Dealing Transactions
16 14.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation,
17 or changes its status to operate as a corporation.
18 14.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
19 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
20 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
21 the County before commencing the transaction or immediately after.
22 14.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
23 a party and in which one or more of its directors, as an individual, has a material financial
24 interest.
25 Article 15
26 General Terms
27 15.1 CIO. Director of Internal Services/Chief Information Officer (CIO).
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1 15.2 Modification. Except as provided in Article 6, "Termination and Suspension," this
2 Agreement may not be modified, and no waiver is effective, except by written agreement signed
3 by both parties. The Contractor acknowledges that County employees have no authority to
4 modify this Agreement except as expressly provided in this Agreement.
5 15.3 Non-Assignment. Neither party may assign its rights or delegate its obligations
6 under this Agreement without the prior written consent of the other party.
7 15.4 Governing Law. The laws of the State of California govern all matters arising from
8 or related to this Agreement.
9 15.5 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
10 County, California. The Contractor consents to California jurisdiction for actions arising from or
11 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
12 brought and maintained in Fresno County. The parties shall first attempt to resolve amicably any
13 dispute by meeting with each other, by telephone or in person at a mutually convenient time and
14 location, within thirty (30) days after a written notice of a dispute is delivered from one party to
15 the other. Subsequent meetings may be held upon mutual agreement of the Parties. If the
16 dispute is not resolved within sixty (60) days of the first meeting, the Parties shall submit the
17 dispute to non-binding mediation by an organization or company specializing in providing
18 neutral, third party mediations. County shall be entitled to select either (i) the location of the
19 mediation (if not held virtually) or (ii) the organization or company, and Contractor shall select
20 the other. The mediation shall be conducted within sixty (60) days of the date the dispute is
21 submitted to mediation, unless the Parties mutually agree on a later date. Any dispute not
22 resolved by meeting or mediation shall be resolved in accordance with the second sentence of
23 this Section 15.5. All fees and expenses of mediation (other than each party's attorneys' fees)
24 shall be shared evenly by the Parties.
25 15.6 Severability. If anything in this Agreement is found by a court of competent
26 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
27 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
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1 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
2 intent.
3 15.7 Nondiscrimination. During the performance of this Agreement, the Contractor shall
4 not unlawfully discriminate against any employee or applicant for employment, or recipient of
5 services, because of race, religious creed, color, national origin, ancestry, physical disability,
6 mental disability, medical condition, genetic information, marital status, sex, gender, gender
7 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
8 all applicable State of California and federal statutes and regulation.
9 15.8 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
10 of the Contractor under this Agreement on any one or more occasions is not a waiver of
11 performance of any continuing or other obligation of the Contractor and does not prohibit
12 enforcement by the County of any obligation on any other occasion.
13 15.9 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
14 between the Contractor and the County with respect to the subject matter of this Agreement,
15 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
16 publications, and understandings of any nature unless those things are expressly included in
17 this Agreement. If there is any inconsistency between the terms of this Agreement without its
18 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
19 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
20 exhibits.
21 15.10 No Third-Party Beneficiaries. This Agreement does not and is not intended to
22 create any rights or obligations for any person or entity except for the parties.
23 15.11 Authorized Signature. The Contractor represents and warrants to the County that:
24 (A) The Contractor is duly authorized and empowered to sign and perform its
25 obligations under this Agreement.
26 (B) The individual signing this Agreement on behalf of the Contractor is duly
27 authorized to do so and his or her signature on this Agreement legally binds the
28 Contractor to the terms of this Agreement.
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1 15.12 Electronic Signatures. The parties agree that this Agreement may be executed by
2 electronic signature as provided in this section.
3 (A) An "electronic signature" means any symbol or process intended by an individual
4 signing this Agreement to represent their signature, including but not limited to (1) a
5 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
6 electronically scanned and transmitted (for example by PDF document) version of an
7 original handwritten signature.
8 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
9 equivalent to a valid original handwritten signature of the person signing this Agreement
10 for all purposes, including but not limited to evidentiary proof in any administrative or
11 judicial proceeding, and (2) has the same force and effect as the valid original
12 handwritten signature of that person.
13 (C) The provisions of this section satisfy the requirements of Civil Code section
14 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
15 Part 2, Title 2.5, beginning with section 1633.1).
16 (D) Each party using a digital signature represents that it has undertaken and
17 satisfied the requirements of Government Code section 16.5, subdivision (a),
18 paragraphs (1) through (5), and agrees that each other party may rely upon that
19 representation.
20 (E) This Agreement is not conditioned upon the parties conducting the transactions
21 under it by electronic means and either party may sign this Agreement with an original
22 handwritten signature.
23 15.13 Counterparts. This Agreement may be signed in counterparts, each of which is an
24 original, and all of which together constitute this Agreement.
25 Agent for Service of Process. The Contractor represents to the County that the
26 Contractor's agent for service of process in California, and that such agent's address for
27 receiving such service of process in California, which information the Contractor shall maintain
28 with the office of the California Secretary of State, is as follows:
20
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DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
1 DANNY HEMNANI
2 915 E. 1 ST STREET
3 LOS ANGELES, CA90012
4 The Contractor further represents to the County that if the Contractor changes its agent for
5 service of process in California, or the Contractor's agent for service of process in California
6 changes its address for receiving such service of process in California, which changed
7 information the Contractor shall maintain with the office of the California Secretary of State, the
8 Contractor shall give the County written notice thereof within five (5) calendar days thereof
9 pursuant to Article 5.
10 [SIGNATURE PAGE FOLLOWS]
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
1 The parties are signing this Agreement on the date stated in the introductory clause.
2
CONTRACTOR, Journal Technologies, Inc. COUNTY OF FRESNO
3 DocuSigned by:
4 4/17/2024
Danny Hemnani, CEO Nathan Magsig, Chairman of the Board of
5 Supervisors of the County of Fresno
915 E 1 st Street
6 Los Angeles, CA 90012 Attest:
Bernice E. Seidel
7 a iewde4znd Approved: Clerk of the Board of Supervisors
8 bnak�, p_,- • - County of Fresno, State of California
9 Brlan ar l e, In
Counsel, Corporate �•
Secretary By:
Deputy
10
For accounting use
11 only:
12 Org No.: 8905
Account No.: 7311
13 Fund No.: 1020
Subclass No.: 10000
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following
2 terms shall have the meanings specified:
3 a. Application Administrator is a designated employee or The Contractor of the County
4 responsible for managing the case management system. This role includes communicating
5 with Contractor staff for support, troubleshooting problems, and coordinating maintenance
6 tasks.
7 b. Change Control Process refers to the process used by the Information Services Division
8 of County's Internal Services Department to inform County staff of new or updated production
9 use systems.
10 c. Customer Data refers to all non-configuration, case-related data entered into, contained
11 in, modified in, or deleted from the Licensed Software, but not the Licensed Software (as
12 defined in Exhibit A) itself.
13 d. Go Live refers to the Licensed Software is being Used in an operational capacity with
14 operational data in County's production environment.
15 e. Products and Services refer to the products and services made available to the County
16 pursuant to this Agreement, which may include those accessible for Use by the County on a
17 subscription basis ("Software-as-a-Service" or"SaaS") only if the Parties agree to subsequently
18 amend this Agreement, pursuant to County's Board of Supervisors approval, to expressly
19 provide for such cloud-hosting, but as of the effective date accessible for Use by County via the
20 System Software and System Hardware referenced in Section 12.6 ("Data Security") of this
21 Agreement, which is maintained, secured and updated on an on-going basis by County. This
22 term "Products and Services" also includes professional services by Contractor as specified in
23 each Order or SOW.
24 f.License is the license granted under this Agreement, specified in Section 1.4 ("License
25 Grant and License Term") of the main body of this Agreement, and the rights and obligations
26 that it creates under the laws of the United States of America and the State of California,
27 including without limitation, copyright and intellectual property law.
28 g. License Term refers to the period of time that County is authorized to install and use the
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DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A - Scope of Work
1 Contractor's Licensed Software, and which may differ from the term of the Agreement.
2 h. Licensed Software refers to the proprietary computer software program or programs
3 identified in Exhibit B ("Compensation"), together with all related System Documentation.
4 i. License, Maintenance and Support Fees refer to the fees to be paid by County to
5 Contractor, identified in Exhibit B, annually in advance of each year of the License Term.
6 j.Maintenance refers to enhancements, upgrades and new releases of the Licensed
7 Software, which includes only those additions and/or modifications to the Licensed Software
8 which (A) enhance functionality and/or performance without fundamentally altering the nature
9 or manner in which the Licensed Software operates, and (B) are made generally available
10 without additional or increased charges to other persons entitled to receive maintenance from
11 Contractor.
12 k. Notice to Proceed refers to written notice from the County that will inform the Contractor
13 of the date it can start work as outlined in Order or Statement of Work.
14 I. Order or Statement of Work (SOW) refers to a written order, proposal, or purchase
15 document in which the Contractor agrees to provide and the County agrees to purchase specific
16 Contractor Products and Services. Statement of Work (SOW) means a written order, proposal,
17 or purchase document that is signed by both Parties and describes the Contractor products
18 and/or services to be provided and/or performed by the Contractor. Each SOW shall describe
19 the Parties' performance obligations and any assumptions or contingencies associated with the
20 implementations of Contractor Products and Services, as specified in each Order or SOW
21 placed hereunder. At such time as the parties shall have agreed upon a SOW, the SOW as so
22 completed, approved and executed by their authorized representatives shall constitute an
23 agreement under and be subject to the non-conflicting provisions of this Agreement.
24 m. Order Term refers to the then-current duration of performance identified on each Order or
25 SOW, for which the Contractor has committed to provide, and the County has committed to pay
26 for, Contractor Products and Services.
27
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 I.Support refers to access to technical assistance for the Licensed Software, including
2 support for questions about functionality, the resolution of error messages, bug fixes and
3 troubleshooting .
4 m. Licensed Software Documentation refers to documentation relating to the Licensed
5 Software, including all manuals, reports, brochures, sample runs, specifications, and other
6 materials provided by Contractor in connection with the Licensed Software.
7 Use or Using refers to (i) transferring any portion of the Licensed Software from storage
8 units or media into computer or terminal equipment for utilization or processing; (ii) accessing
9 any portion of the Licensed Software for any purpose (including, without limitation, viewing
10 information already in the Licensed Software); or (iii) merging any Licensed Software in machine
11 readable form into another program.
12 n. User refers to (a) any individual person, computer terminal or computer system
13 (including, without limitation, any workstation, pc/cpu, laptop and wireless or network node) that
14 has been authorized by the County (through a username and password) to use the Licensed
15 Software, or (b) any other non-court government employees who are performing their jobs, or a
16 computer terminal or computer system used by such a person, in each case, interfacing with or
17 accessing the Licensed Software through an interface or its public portal or (c) any individual
18 person who is a member of the general public (including litigants and their attorneys, reporters
19 and interested citizens, but not government employees who are performing their jobs), or a
20 computer terminal or computer system used by such a person, accessing the Licensed
21 Software at any given time for any reason through its public portal (including to file documents
22 electronically or to view information already in or accessible through the Licensed Software).
23 2. Warranties & Disclaimers. The Contractor warrants that all services performed under
24 this Agreement will conform in all aspects with the requirements of this Agreement and their
25 specifications. The Contractor warrants that it takes all precautions that are standard in the
26 industry, in California, to increase the likelihood of a successful performance for Contractor
27 Products and Services.
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 Except as provided in herein provided, each Party hereby disclaims any and all other
2 warranties of any nature whatsoever whether oral and written, express or implied, including,
3 without limitation, the implied warranties of merchantability, title, non-infringement, and fitness
4 for a particular purpose. Contractor does not warrant that Contractor Products and Services will
5 meet the County's requirements.
6 3. Maintenance. Maintenance will be provided for the Licensed Software provided that the
7 County has paid the applicable License, Maintenance and Support Fees described in Exhibit B,
8 and subject to all of the terms and conditions of this Agreement. Maintenance for the Licensed
9 Software will be available when the applicable enhancement, upgrade or release is first made
10 generally available to persons entitled to receive maintenance from the Contractor. For the
11 avoidance of doubt, the County elects when it wishes to apply provided Maintenance to the
12 Licensed Software.
13 4. Project Deadlines. It is understood and agreed by both parties to this Agreement that if
14 all the work specified or indicated in the Order or SOW is not completed within the specified
15 time frames set forth in the Order or SOW, or within such time limits as extended, the County
16 may elect to terminate without cause as discussed in section 6.3, provided however, nothing in
17 this Section A.4 limits any of the County's remedies under this Agreement for Contractor's
18 breach of this Agreement. For the avoidance of doubt, there is currently no professional
19 services work identified in this Statement of Work; instead, the "work" being provided are User
20 licenses, Maintenance and Support, as defined herein, for the period of the License Term. In
21 the event any professional services work is ordered under this Agreement pursuant to a
22 subsequent SOW, the terms of this section regarding project deadlines shall apply.
23 5. Contractor's Project Coordinator. Upon execution of any subsequent SOW identifying
24 professional service work to be performed in keeping with this Agreement, the Contractor shall
25 appoint a Project Coordinator who will act as the primary contact person to interface with the
26 County for the services discussed in such SOW.
27 6. Documentation. Contractor shall provide to the County Licensed Software
28 Documentation, which shall consist of electronic media files. The electronic media files must be
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 printable using PC software normally available at the County. The Contractor shall provide new
2 Licensed Software Documentation corresponding to all new Licensed Software Maintenance.
3 The County may print additional copies of all documentation. All Licensed Software
4 Documentation is to be used by the County only for the purposes identified within this
5 Agreement.
6 7. Technical Information. The Contractor will provide technical information to the County.
7 Such information may cover areas regarding the software discussed in this Agreement, third
8 party software, and other matters considered relevant to the County by the Contractor.
9 Technical information will be provided at the discretion of the Contractor but will not be
10 unreasonably withheld.
11 8. Operating System Updates. The Licensed Software must run on a County operating
12 system that is consistently and currently supported by the operating system vendor.
13 Maintenance is provided for the Licensed Software as defined in Section 1 hereof, and would
14 be installed by County as the Licensed Software is being locally hosted on premise by County.
15 9. Adhere to Change Control Process. The Contractor employs a procedure to notify
16 County of Maintenance, as such term is defined in Section 3, e.g. updates, upgrades, and
17 version releases to the Licensed Software. This forum allows the Contractor to inform the
18 County of upcoming Maintenance. As the Licensed Software is hosted on-premise, County
19 shall perform the installation of Licensed Software maintenance.
20 10. Storage and Sending. If any services specified in this Agreement are used to store
21 and/or send Confidential Information, the Contractor must be notified in writing, in advance of
22 the storage or sending. Should the County provide such notice, the County must ensure that
23 Confidential Information is stored behind a secure interface and that Contractor Products and
24 Services be used only to notify people of updates to the information that can be accessed after
25 authentication against a secure interface managed by the County. For the avoidance of doubt,
26 the parties generally do not intend that County would send Confidential Information to
27 Contractor, as such Confidential Information shall reside on County's on-premise servers.
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 11. Support. Support Services is defined in Section 1 as access to technical assistance for
2 the Licensed Software, including support for questions about functionality, the resolution of
3 error messages, bug fixes and troubleshooting. Support for the Licensed Software and its
4 Public Portal is available by telephone, e-mail, or internet support forum from 5:00 am to 6:00
5 pm Mountain time, Monday through Friday, except for federal holidays. The Contractor shall
6 generally provide an initial response within four (4) hours of first contact. The Contractor shall
7 use all reasonable diligence in correcting verifiable and reproducible errors reported to the
8 Contractor. The Contractor shall, after verifying that such an error is present, initiate work in a
9 diligent manner toward development of a solution. If the error is categorized as "Critical"
10 (meaning an error for which there is no workaround and which causes data loss, affects a
11 mission critical task or poses a possible security risk that could compromise the system), the
12 Contractor shall provide a solution through a service release as soon as possible. The
13 Contractor shall not be responsible for correcting errors in any version of the Licensed Software
14 other than supported version(s), with the exception of Critical errors, for which a service release
15 will be provided for the most recent previous version as well. The Contractor shall not be
16 responsible for errors caused by hardware limitations or failures, network infrastructure,
17 operating system problems, operator errors or any errors related to processes, interfaces or
18 other software.
19 12. Downtime. Downtime is the responsibility of County, as the Licensed Software shall
20 reside on County's on-premise servers, the availability of which is outside of the control of
21 Contractor.
22 13. Data Sources. Data uploaded into Contractor Products and Services must be brought
23 in from County sources (interactions with end users and opt-in contact lists). The County
24 cannot upload purchased contact information into Contractor Products and Services without
25 Contractor' written permission and professional services support for list cleansing. The
26 Contractor certifies that it will generally not receive any personal information of the County, as
27 such information would be stored on Couty's on-premise servers.
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 14. Passwords. Passwords are not transferable to any third party. The County is
2 responsible for keeping all passwords secure and all use of the Contractor products and
3 services accessed through the County's passwords.
4 15. County Feedback. County will provide feedback to the Contractor with any suggestion,
5 enhancement, request, recommendation, correction or other feedback provided by The County
6 relating to the use of the Contractor Products and Services. The Contractor may use such
7 submissions as it deems appropriate in its sole discretion.
8 16. Conditions to Receive Support. The County must designate one or more
9 Application Administrators, each of whom shall be an employee or contractor of the County.
10 Only a designated Application Administrator, may request Support. It is the responsibility of the
11 County to instruct Users to route Support requests through the Application Administrator.
12 17.1 The County must maintain a dedicated connection, approved by the Contractor,
13 to the Licensed Software's database and/or application server, with full screen access to the
14 server and full administrative rights to publish information and make changes.
15 17.2 The County must maintain all related hardware and software systems required
16 for the operation of the Licensed Software. Minimum System requirements are attached as
17 Exhibit G ("SYSTEM REQUIREMENTS"). Contractor shall have no responsibility for
18 configuring, maintaining or upgrading the County's operating system, hardware, network, or any
19 other software not provided by the Contractor. The Contractor is not responsible for creating or
20 maintaining database or storage backup files.
21 17.3 The County must keep supported version and have installed supported version of
22 the Licensed Software.
23 17.4 The County must provide the Contractor's support personnel with accurate
24 configuration information, screen shots, or other files and documentation as required for each
25 support request.
26 17.5 Other Support. Services that go beyond routine Support may be provided under
27 the terms of a professional services agreement upon agreement of the parties.
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 17. Licensed Software Warranty. The Contractor warrants that the Licensed
2 Software will perform in all material respects during the License Term in accordance with the
3 applicable user, administrative, and technical electronic guides. Notwithstanding the foregoing,
4 this warranty shall not apply and the Contractor will incur no liability whatsoever if there is or
5 has been (a) the use of any non-current version (or the most recent supported versions) of the
6 Licensed Software, (b) the combination of the Licensed Software with any other software not
7 recommended, provided or authorized by the Contractor, (c) modification of the Licensed
8 Software, (d) any use of the Licensed Software in breach of this Agreement or (e) any failure to
9 satisfy the conditions to receive Support under Section 17 above. If at any time during the
10 License Term the Licensed Software fails to perform according to this warranty, the County
11 shall promptly notify the Contractor in writing of such alleged nonconformance, and the
12 Contractor shall provide bug fixes and other Support, but only so long as the alleged
13 nonconformance is not caused by an act of the County or any third party not under the control
14 of or authorized by the Contractor. After the bug fixes and Support have been provided, if any
15 such non-performance materially impairs the ability of the County to utilize the Licensed
16 Software, the County shall have the right, on thirty (30) days' notice, to terminate the license
17 and this Agreement (with a credit for License, Maintenance and Support Fees paid with respect
18 to the period in which utilization was materially impaired).
19 18. Warranty of Law. The Contractor represents and warrants that to the best of the
20 Contractor's knowledge: (i) there is no claim, litigation or proceeding pending or threatened
21 against the Contractor with respect to the Licensed Software or any component thereof alleging
22 infringement of any patent or copyright or any trade secret or any proprietary right of any
23 person; (ii) the Licensed Software complies in all material respects with applicable laws, rules
24 and regulations; (iii) the Contractor has full authority to enter into this Agreement and to
25 consummate the transactions contemplated hereby; and (iv) this Agreement is not prohibited
26 by any other agreement to which the Contractor is a party or by which it may be bound (the
27 "Legal Warranty"). In the event of a breach of the Legal Warranty, the Contractor shall
28 indemnify and hold harmless the County from and against any and all losses, liabilities,
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DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit A — Scope of Work
1 damages, causes of action, claims, demands, and expenses (including reasonable legal fees
2 and expenses) incurred by the County, arising out of or resulting from said breach.
3 19. Warranty of Title. The Contractor further warrants that (i) it has good title to the
4 Licensed Software; (ii) it has the absolute right to license the Licensed Software; (iii) as long as
5 the County is not in material default hereunder, the County shall be able to quietly and
6 peacefully possess and Use (as defined in Exhibit A) the Licensed Software provided
7 hereunder subject to and in accordance with the provisions of this Agreement; and (iv) the
8 Contractor shall be responsible for and have full authority to license all proprietary and/or third
9 party software modules, algorithms and protocols that are incorporated into the Licensed
10 Software (the "Title Warranty"). In the event of a breach of the Title Warranty, The Contractor
11 shall indemnify and hold harmless County from and against any and all losses, liabilities,
12 damages, causes of action, claims, demands, and expenses (including reasonable legal fees
13 and expenses) incurred by The County, arising out of or resulting from said breach.
14 26. E-Commerce Functionality Fees. If Public Portal is included in the Licensed
15 Software and the e-commerce functionality of Public Portal is utilized, the Contractor shall
16 provide a PCI compliant payment gateway and payment processing functionality. A merchant
17 services agreement will be provided to the County upon request. If the County requires an
18 alternate payment processor provider, Licensee is responsible for all additional development
19 costs to connect Public Portal with the payment processor provider.
20 27. Possession And Use Of Source Code. Source code and other material that
21 result from custom programming by Contractor delivered to the County under this License shall
22 be deemed the Contractor Application Software subject to all of the terms and conditions of the
23 software license set forth in this Agreement. The scope of the County's permitted use of the
24 custom source code under this license shall be limited to maintenance and support of the
25 Application Software. For purposes of this Section, the term "maintenance and support" means
26 correction of Application Software errors and preparation of Application Software modifications
27 and enhancements. If the County independently creates computer code that is complementary
28 to the Application Software but is not in any way derivative of the Application Software and
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Exhibit A - Scope of Work
1 contains no intellectual property, proprietary information, trade secrets or other Confidential
2 Information of Contractor, the new code shall be owned by the County, shall not be deemed to
3 be Application Software as such term is used herein, and may be used by the County's
4 employees, officers, or agents for the County's own internal business operations. However, if
5 the County's enhancement results in the creation of a derivative work from the Application
6 Software, it being acknowledged by the County that the creation of a derivative work from the
7 Application Software is expressly forbidden herein, the copyright and other intellectual property
8 rights to such derivative work shall be owned by the Contractor
9 27. Source Code Escrow. The County has previously been added as a beneficiary
10 under the Software Source Code Agreement between the Contractor and InnovaSafe, Inc., as it
11 may be amended from time to time, a copy of which is attached as Exhibit F ("SOURCE CODE
12 ESCROW AGREEMENT"). County has no obligations under said SOURCE CODE ESCROW
13 AGREEMENT, and no contractual rights or obligations with InnovaSafe, Inc.
14 28. Product and Service Descriptions. The Licensed Software, eProsecutor®, is
15 a case management software solution that interfaces with Fresno Superior Court through the
16 Odyssey File & Serve (OFS) and Integration Publisher (IP) interfaces. eProsecutor® also
17 interfaces with Clovis Police Department via the Law Enforcement Agency (LEA) interface and
18 with Fresno County Probation through the Probation Interface. Additionally, eProsecutor®
19 provides officer subpoena information to the Fresno Police Department through the FPD
20 Subpoena interface. The Public Portal (DA Portal), is linked to eProsecutor®, facilitating both
21 the submission of cases by law enforcement agencies as well as the distribution of eDiscovery
22 files to defense attorneys.
23
24
25
26
27
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Exhibit A — Scope of Work
1
2 Solution Description
3 Licensed Software: The annual License, Maintenance and Support Fees include eSeries
4 eProsecutor°. Software licenses, maintenance updates, upgrades and routine
Support as described in the Agreement.
5
Non-Routine Non-Routine Support and other projects, including legislative-type
6 Support and other updates and subsequent training, will be done pursuant to a
Projects
7 Statement of Work using the hourly rate set forth in Exhibit B
8 ("Compensation")
9
10
11
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13
14
15
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Exhibit B
1 Compensation
2 The Contractor will be compensated for Contractor's Products and 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 Fees.
Annual eProsecutor® License, Maintenance and Support Fees for the first year of the License
6
7 Term (June 10, 2023—June 9, 2024): $279,022.52 which includes a total of up to 364 User
8 licenses, including 30% of such licenses for Use by Users defined in subsection (b) and (c) of
9 the "User" definition in Section 1 of Exhibit A. At each anniversary of the License Term, the
Annual eProsecutor® License, Maintenance and Support Fees shall automatically increase by
10
1 year-over-year percentage increase in the Consumer Price Index, All Urban Consumers (CPI-U)
1
12 for the West Region calculated for the month prior to the month in which notice is given
13 hereunder, not to exceed four percent (4%).
14 Non-Routine Support or other Projects Hourly Rate: $200/per hour for year 1
15 Non-Routine Support or other Projects Hourly Rate: $250/per hour for years 2-5.
16 Fee Changes
17 If the number of agency Users increases or decreases, the annual License, Maintenance and
18 Support Fees will be adjusted pursuant to the pricing table set forth below, but subject in all events
19 to a minimum annual License, Maintenance and Support Fee of $50,000:
20
21 eProsecutor® License Annual License, Maintenance
and Support Fees
22 User Per
23 User Groups* Licenses License For Group
24 1-50 50 $ 1,000 $ 50,000
51-100 50 $ 800 $ 40,000
25 101-200 100 $ 700 $ 70,000
26 201-500 300 $ 500 $ 150,000
27 501-1000 500 $ 350 $ 175,000
28
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Exhibit B
1
2 *The actual number of User licenses will be used to determine the annual fee,
3 with 50 licenses being the minimum. Each additional agency User shall require
4 the purchase of 1.3 additional User licenses.
5
6
7
8
9
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Exhibit C
1 Self-Dealing Transaction Disclosure Form
2 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
3 that they are a party to while providing goods, performing services, or both for the County. A
4 self-dealing transaction is defined below:
5 "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."
6 The definition above will be used for purposes of completing this disclosure form.
7 Instructions
8 (1) Enter board member's name, job title (if applicable), and date this disclosure is being
9 made.
10 (2) Enter the board member's company/agency name and address.
11 (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:
12 a. The name of the agency/company with which the corporation has the transaction;
13 and
14 b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
15
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
16 provisions of the Corporations Code.
17 The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
18
19
20
21
22
23
24
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26
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Exhibit C
(1) Company Board Member Information:
Name: 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:
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Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, 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) Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) 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.
(F) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) 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 Article 11
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
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Exhibit D
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@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
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 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.
(v) 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.
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Exhibit D
(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
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
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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,
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Exhibit E
subdivision (a), or 1798.80, subdivision (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. County acknowledges that the parties generally do not intend
that County would send Confidential Information or Personal Information to Contractor, as such
Confidential Information and Personal Information shall reside on County's on-premise servers.
(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
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Exhibit E
interest in or to the Personal Information remains in the County (or persons from whom the 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.
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.
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Exhibit E
C. Information Security.
(1)The Contractor covenants, represents and warrants to the County that the Contractor's
Use of Personal Information under this Agreement, if any, 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 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;
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Exhibit E
(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 with applicable law; and (viii)
providing appropriate privacy and information security training to Authorized Employees. The
foregoing safeguards are applicable to Contractor's handling of County Personal Information;
provided that the parties generally do not intend that County would send Confidential Information
or Personal Information to Contractor, as such Confidential Information and Personal
Information shall reside on County's on-premise servers, and is not needed by Contractor to
complete the services contemplated by this Agreement, unless this Agreement is amended to
provide that Contractor provides County cloud-hosting services and would thereunder host
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Exhibit E
County's Personal Information in cloud infrastructure.
(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, if
any, 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. County
acknowledges that the parties generally do not intend that County would send Confidential
Information or Personal Information to Contractor, as such Confidential Information and
Personal Information shall reside on County's on-premise servers, and therefore it is unlikely
that backups of any County Personal Information would be made by Contractor, unless this
Agreement is amended to provide that Contractor provides County cloud-hosting services and
would thereunder host County's Personal Information in cloud infrastructure.
(6) In the event Contractor stores County Personal Information, which is not expected, 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 twenty-four
(24) hours per day, seven (7) 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 involving County Personal Information, 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/
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Exhibit E
incidents(a)-fresnocountyca.aov (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, 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 of Contractor by law and regulation, and
the Contractor shall provide a written report of the investigation and reporting required to the
Director within thirty(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 24-48 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
E-7
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit E
require corrective action and the reason therefor.
(4)The Contractor shall take prompt corrective action to respond to and remedy any
Security Breach involving County Personal Information and take reasonable mitigating actions,
including but not limiting to, preventing any reoccurrence of the Security Breach involving County
Personal Information and correcting any deficiency in Security Safeguards as a result of such
incident, all at the Contractor's sole expense, in accordance with applicable privacy rights, laws,
regulations and standards. Subject to the Section 8.1, 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 caused by the negligence of willful misconduct of Contractor, 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 twelve (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 thirty (30) days; and (3)the
cost of any measures required under applicable laws. For the avoidance of doubt, County
acknowledges that the parties generally do not intend that County would send Confidential
Information or Personal Information to Contractor, as such Confidential Information and
Personal Information shall reside on County's on-premise servers, unless this Agreement is
amended to provide that Contractor provides County cloud-hosting services and would
thereunder host County's Personal Information in cloud infrastructure. It is County's
responsibility not to send Contractor County Personal Information. If such information must be
provided to Contractor it is County's responsibility to redact the Personal Information.
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) If Contractor stores County Personal Information under this Agreement, then upon the
County's written request, to confirm the Contractor's compliance with this Exhibit E, as well as any
E-8
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit E
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 review an independent SOC 2
Type 2 assessment 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, if any;
provided the parties mutually expect there will be no Personal Information of County residing in any
technical environment of Contractor. The Contractor shall fully cooperate with providing such
assessment to the County.
(3)The Contractor shall ensure that all Authorized Persons who Use Personal Information,
if any, agree to the same restrictions and conditions in this Exhibit E. that apply to the 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, if any, 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
E-9
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit E
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, 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. 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.
I. No Third Party Beneficiary.
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.
J. 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-10
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
Source Code Escrow Agreement
Exhitn
ORA
N10VASAFKINC.0
trJntenal P!ntvrtr rock MW0Wff*M
IS2ex
Software Escrow Agreement
This Agreement is between the Depositor and InnovaSafe.
Licences arc enrolled as a Beneficiary.
Use Tkis Agreement iF.
• Multiple Licensees will he added and management of single or
multiple deposits arc needed.
• ticneficiary specific terms and conditions may he required.
• Modifiable Agrtxment is required
• Services include:
o Compietc c4ent service
o Fees Locked For the Initial Term
o Physical or Electronic Deposits
o Quarterly Deposits Included
o No Additional Storage Fee
o Toll Free Tcicphnne Support(800)239-3989
Questions' Please call(800)239-3989 or
Live Online Support at wtrwJenuv1wsafe.cotn
IS2ex v09.2 O 2009 annwuSsfe.Inc.All Rights Reserved
Acr3urN/2739
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F-1
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
This Software Suurce Code Escrow Agreement("Agreement"),number 2738.gffeWyli as of the date signed by the Depositor
C'L•ffective Date"),is made and entered into by InnovaSafe,Inc.("InnovaSafe II.a California corporation,located at 28502
Constellation Road, Valerncia, California, 91335-3082, and Jourrial Technologies, Inc. formerly known as Sustain
Technologies,Inc.("Depositor").located at 915 East First Street,Dos Angeles,Calikviiia 90I112 and each additional person
or entity subscribed hereto as a Beneficiary or Designated Bcncflcimy in accordance with the requirements of this
Agreement, in consideration of the covenants,oonditiona,warranties and restrictions contained in this Agreement,the parties
agree as follows:
1. DEFINiTIONS
For purposes of this Agreement,the following capitalized terms shall have the meanings set forth below,unless expressly
defined otherwise in this Agreement:
'Beneficiary' means and includes a person or entity that has subscribed hereto as a Beneficiary in accurdarrce with the
requirements of Paragraphs 3.1 and 3.2(a)of this Agreement and each Designated Beneficiary.
"Bertefitciary Enrollnwri(For*"mans the form used by InnovaSafe for the addition of a Beriefsciary,or Beneficiaries to this
Agreement in accordance with the requirements of Paragraph 3 hereof, as such form may be modified or replaced by
tnnovaSafe in its sole discretion from time to time during the term of this Agreement. A copy of the current Beneficiary
Enrullmem Form is attached hereto as F.Oubit B and incogtormed herein.
"Designated Beneficimy"meats and includes any person or emity that has not subscribed hereto as a Beneficiary pursuant to
Paragraph 3.2(a),but has been designated by Depositor as a Beneficiary hereof in accordance whth the requirements of
Paragraphs 3.1 and 3.2(b) of this Agreement. Each Destgrsated Beneficiary shall have the rights and obligations of a
Beneficiary under this Agreement, including but not limited to the conditional rights set forth in Paragraph 4 of this
Agreement
"liercriptir*tw 1=terme Deposit-means a general description of the Software and the Escrow Deposit as set forth on Exhibit
A attached hereto and incorporated herein
"Escrow Deposit" or "Deposii" means the copies of the Source Code, drawings, computer intellectual propem,
documentation,web site content,trade secrets,and other related material,deposited with inrwvaSafe by the Mpusilor,or
otherwise held by InnovaSafe pursuant to the tcmts of this Agreement.
"l.icensr.�grermenf'means any agreement pursuant to which Depositor licenses the Software to a Beneficiary in object code
form.
"Kepkicen enr"means a Deposit relating to any complete change,mods ffcation,enhancement or alteration of the Source Code
since the last Deposit which completely replaces all of the previous Deposits.
"Softivare"means the software that as of the date hereof is licensed by the Depositor to a Beneficiary pursuant to a License
Agreement,and which is generally described in the Description of Escrow Deposit.
"Soarer Code`means the Sol)ware in source code form,including all documentation and instructions necessary to maintain,
duplicate,compile,interpret and install the source code for the Software.
"Update"means any modification,update or revision of any Software that is subject of the Escrow Deposits currently being
held by InnovaSafe,
2- DEPOSIT PROCEDURFC
2.1 Inili aL,&W Qu2fiSiL Deposits: (a) Within thirty (30) days of the Effective Date of this
Agreement, Depositor agrees to deposit with InnovaSafe,copies of the Source Code for the version of the Software as
lieertsed under a license Agreement. With such ddi"ry, Depositor agrees to provide InnovaSafe with a completed
Description of Deposit(Exhibit A)• (b)Depositor also agrees to deposit with InnovaSafe the Deposit for each Update or
Replacement within thirty(30)days after its
IS2cx v092 C 20091emovaSsfc.Inc.All Rights Kcscr.v J
Accounbr2738
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F-2
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
release,distribution.or other publication by Depositor in the ordinary course of busaness. With each such
delivery,Depositor agrees to provide InnovaSafe with a completed Description of Deposit(Exhibit A).(c)
Depositor shall deliver a duplicate Deposit(including all Updatcs)within five(S)days of receipt of a
written request from an authorised representative of InnovaSafe. Without limiting the foregoing.Depositor
shall deliver a duplicate Deposit(including all Updates)to replace any previous Deposit that is impaired
due to a defect in or natural degeneration of pie recorded medium. All duplicate Deposits may not be
encrypted,except for an Update or Repbcetnent Deposit that is transmitted to hmovaSate m accordance
with Paragraph 2.2.(d)Notwidettanding any other provision of this Agreement,InnovaSafe shall have no
obligation to return to Depositor any Deposit,
2.2 Rncrmed Electronic Deliveries: Subject to the prior agreement of InnovaSafe and
Depositor regarding delivery and decryption protocols. Depositor shall past the option but not the
obligation to encrypt and transmit the encrypted Deposit for each Deposit over the Internet using
InnovaSafe's SafeDeposit smices. InnovaSafe shall not be liable to Depositor or Beneficiary for any
encrypted Deposit,or any part thereof that is transmitted over the Internet..
2.3 QjMh Rmio Nokf aWm: For each Deposit, innovaSafe will Issue a receipt to
Depositor,accompanied by a general list or description of the materiah deposited. InnovaSafe shall notify
Depositor and Beneficiary of receipt of each Deposit by dearomic mail(`email") to the email address
described in Paragraph 10 of this Agreement or the Beneficiary Enrollment Form, as appltcable,within
thirty(30)days following receipt by InnovaSafe of the Deposit.
2.4 Technical Verification of lh=sit Any party may request that InnovaSafe perform a
deposit verification of the Deposit. Any:barges and expenses incurred by hmovaSafe m carrying out a
deposit verification will be paid by the party requesting the deposit verification,unless otherwise agreed to
in writing. Limitations: Except solely in connection with the performance by lnnova.Safe of a deposit
venfcatxm or another technical verification that has been requested and agreed to by the parties in
accordance with this Agreement.InnovaSafe shall have no obligation to determine the physical condition.
accuracy, completeness, functionality, perforniarice or non-performance of any Deposit or Whether the
Deposit contains Source Code.
25 Failed Deliveries. Duty of Cue�pd. gnyt (a) InnovaSafe will not be
responsible for procuring the delivery of any Deposit. (b)InnovaSafe shall perform all of the duties
required by this Agreement diligently and in good faith. Except as expressly stated in Seaion 2 of this
Agreement,InnovaSafe shall have no duty of care,inquiry or disclosure,whether express or implied. (c)
Any and all sub-contractors performing verification or other services on behalf of InnovaSafe shall be
subject to the same duty of care as lnnovaSafc.
3. BENEFICIARY ENROLLMENT PROCEDURES
3.1 Enrollment of Beneficiair y After Inno"Safe's accept2-noc of the initial Deposit,
Depositor may join additional Beneficiaries,or na=Designated Beneficiaries to this Agreement at any
time and from time to time,in its sole and absolute discretion,provided that(a)at the time of entering into
this Agreement the Depositor and the proposed l)eneficiary or Designated Beneficiary are parties to a
License Agreement;(b)Depositor is not in breach of this Agreement,.(c)all fce i and costs required to be
paid to ImrovaSafc under this Agreement have been paid;and(d)the proposed Bcnefcia-y co npletes,
signs and delivers the Beneficiary Enrollment Form as required hereunder or Deptnittx provides a written
execution and delivery of the Exhibit Bets.Beneficiary Enrollment Form for a Designated Beneliciary,as
applicable.
32 Beneficiary Emmilment Forms: (a)Each person or entity that subscribes as a Beaefikyary
to this Agreement shall be required to agree to the terms hereof and indicate such agreement by deliveHng
to Depositor autd InnovaSafe the completed Beneficiary F.nrnlltnent Form(Exhibit B)that has been signed
by an suthonzed representative of Beneficiary. A person or etiq char has not suhscrihed hereto as a
Beneficiary in accordance with the rcquircrnents of this Agreement,including but txtt limited to,any other
licensees of the Software,shad not have any rights hereunder and IrmwaSafe shall have no duties to any
such persons or entities,except its expressly provided in clause(b)of this Paragraph 3.2.(b)Subject to
Paragraph 3.1 above, Depositor may name Designated Beneficiaries to this Agreement at arty•time and
Mex s992 0 2009 InnL-&r de.fie.AG Rights Reserved
Acmunut'2738
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F-3
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
from time to time, in its sole and absolute discretion,upon execution and delivery of the Exhibit Bns,
Beneficiary Enrollment Form for a Designated Beneficiary. InnovaSafe shall issue an enrollment letter and
a copy of the Agreement, and any other applicable document required hereunder to the Designated
Beneficiary upon receipt of the Exhibit Bns. All rights and obligations of a Designated Beneficiary
expressly provided for hereunder, may be modified, supplemented,extended,terminated or assigned by
Depositor and InnovaSafe at any time,and from time to time,by amendment of this Agreement as further
provided herein. Unless otherwise expressly set forth in an amendment to this Agreement as provided for
in this Agreement,the rights and obligations of a Designated Beneficiary interests established hereunder
shall not be modified by (i) any waiver for the benefit of such Designated Beneficiary that is entirely
conditioned upon the complete and continuous satisfaction of each of the performance of and obligation
required under this Agreement, or(ii)any failure to enforce any following the execution of the form of
acknowledgement attached hereto as Exhibit D in which Beneficiary accept and agrees to be bound by the
terms,conditions and obligations set forth in this Agreement, including,but not limited to,all obligations
of Beneficiary set forth in Paragraph 4.4 of this Agreement,and all obligations of Designated Beneficiary
set forth in Sections 9, 10 and 1 I of this Agreement. No Deposit shall be released to any Designated
Beneficiary until the Designated Beneficiary accepts and agrees to be bound by the terms,conditions and
obligations in accordance with the requirements of this Agreement.
4. DEPOSIT RELEASE PROCEDURES
4.1 Conditions to Enforcement: Each Beneficiary shall have the right to enforce the Release
Procedures described in this Paragraph 4 only if at the time of the requested release: (a) the License
Agreement between Depositor and Beneficiary is in full force and effect,and Beneficiary is not in breach
thereof-,(b)the Beneficiary is not in breach of this Agreement; and (c) all fees and costs then due and
owing to InnovaSafe shall have been paid in full.
4.2 Release Conditions: The release by innovaSafe of the Deposit to Beneficiary as further
provided in this Paragraph 4,shall be subject to the occurrence of one or more of the following conditions
(each a"Release Condition"): (a) Depositor requests in writing that InnovaSafe release the Deposit to
Beneficiary;(b)Depositor takes any action under any state corporation or similar law that will cause both
the dissolution of the corporate existence of Depositor and the liquidation by Depositor of its assets;(c)
Depositor has materially broached an obligation to provide maintenance or bug fixes to which Beneficiary
is entitled under the License Agreement and (i) such material breach will cause Beneficiary to incur
immediate and substantial injury for which money damages, or such other remedies provided by the
License Agreement, would be inadequate, (ii)Beneficiary is not in breach of the terms of the License
Agreement and(iii)Beneficiary has terminated the License Agreement in accordance with the terms of the
License Agreement; (d)Depositor's duly appointed trustee in a bankruptcy or dissolution proceeding of
Depositor requests in writing that InnovaSafe release the Deposit to Beneficiary; or (e) A court of
competent jurisdiction,or an arbitrator,if applicable,issues an order or judgment directing InnovaSafe to
release the Deposit to Beneficiary.
4.3 Release Procedurg§: innovaSafe will release the Deposit to a Beneficiary subject to and
in accordance with each of the following conditions:(a)Depositor may provide lnnovaSafe with a written
release request at any time, and a Beneficiary may provide InnovaSafe with a written release request
following the occurrence of a Release Condition;(b)Provided that ImrovaSafe has been paid all fees and
costs then due and owing,InnovaSafe shall promptly deliver a copy of the release request to Depositor or
such Beneficiary,as applicable(the"Notice of Release Request");(c)If Depositor or Beneficiary objects to
the requested release, then within thirty(30)days of the receipt of the Notice of Release Request,such
party agrees to provide InnovaSafe with written notice of such objection,and to provide a copy of such
notice to the parry requesting the release, stating that a Release Condition has not occurred or has been
cured,and instructing InnovaSafe not to release the Deposit as requested(the"Contrary Instructions");(d)
If InnovaSafe does not receive Contrary Instructions within the time and in the manner required above,then
InnovaSafe shall deliver a copy of the Deposit to such Beneficiary;(e)If InnovaSafe does receive Contrary
Instructions within the time and in the manner required above,then InnovaSafe shall not deliver a copy of
the Deposit to such Beneficiary, but shall continue to hold the Deposit until the fast to occur of the
following: (i)InnovaSafe receives joint written release instructions from Depositor and such Beneficiary;
iS2ex v09.2 C 2009 InnovaSafe,Inc.All Rights Reserved
Account#2738
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F-4
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
or(ii)ImrovaSafe receives a copy of an order or judgment of a court of competent jurisdiction, or the
decision of an arbitrator,if applicable,directing InnovaSafe to act with regard to disposition of the Deposit.
4.4 Rights in BAWmtcv and (a)The parties agree that this Agreement,as
it may be modified,supplemented,or replaced from time to time,is not intended and shall not be construed
to constitute an election of remedies by any Beneficiary,or otherwise to supersede or foreclose any rights
to which Beneficiary otherwise would be entitled under Title 11 United States Bankruptcy Code§365(n),
as a licensee of intellectual property. (b) Upon receipt of the Deposit, and subject to the covenants,
conditions, warranties and restrictions of this Agreement and the License Agreement, each Beneficiary
shall have the right and hereby agrees to use the Deposit,including copying and modification thereof,only
as reasonably necessary for the sole purpose of enabling such Beneficiary to use the Software for its
intended purpose (unless otherwise authorized by the express terms of the License Agreement). Each
Beneficiary shall use commercially reasonable measures to protect the integrity, security and
confidentiality of the Deposit. The foregoing does not grant, sell, assign or otherwise transfer to any
Beneficiary any title to or ownership of all or any part of the Deposit or Software, or related
documentation,or any other property of Depositor,and without limiting the foregoing, does not grant to
any Beneficiary any right to publish, perform, adapt, create derivative works from, or distribute the
Software or any part thereof.
5. FEES AND PAYMENTS
5.1 Fee Schedule. Payments and Suspension of Performance: (a) The fees and charges of
InnovaSafe are set forth on the fee schedule attached hereto as Exhibit C and incorporated herein. After the
expiration of the initial term,InnovaSafe may increase its fees and costs on an annual basis by providing
written notice of such increase at least sixty(60)days prior to the commencement of the next renewal term.
(b)All fees,costs and any other amounts due and payable to InnovaSafe for annual service fees as provided
hereunder,shall be paid by Depositor. Initial arld annual fees must be paid to InnovaSafe within 30 days of
the Effective Date and on each anniversary thereof. All other amounts payable to InnovaSafe shall be paid
within thirty(30)days from the date of invoice to Depositor or Beneficiary,as applicable. Any release fee
under this Agreement shall be paid by the Beneficiary requesting release of the Deposit. Neither Depositor
nor any Beneficiary shall be entitled to any refunds,withholds,offsets,reductions in,or deductions from,
any payments due to InnovaSafe hereunder. (c) In addition to and without limiting any other right or
remedy to which InnovaSafe may be entitled, InnovaSafe shall have the right, in its sole discretion, to
suspend the performance of any or all of its obligations hereunder for so long as any amount due hereunder
remains unpaid in whole or in part.
6. TERM AND TERMINATION
6.1 Term: This Agreement shall have an initial term of one vear from the date hereof unless
earlier terminated as provided herein. At the expiration of the initial term, this Agreement shall
automatically renew from year to year thereafter until this Agreement is terminated in accordance with the
terms hereof.
6.2 Termination for Cause: (a) Notwithstanding the foregoing, this Agreement shall
terminate as to each specific Beneficiary immediately and automatically upon either the expiration of the
applicable License Agreement between such Beneficiary and Depositor,or the earlier termination of the
applicable License Agreement between such Beneficiary and Depositor,whichever is applicable,provided,
however,that in the case of termination(as distinguished from the expiration)of the applicable License
Agreement between such Beneficiary and Depositor, such termination has been effected by Depositor in
accordance with the requirements of the applicable License Agreement.(b)InnovaSafe shall have the right
to terminate this Agreement as to all parties Was to any Beneficiary,in the event of non-payment of any
fees or other amounts due and payable to InnovaSafe or its designee,or if Depositor otherwise breaches
any material term of this Agreement,provided,however,that written notice of such breach is given to all
applicable parties. if Depositor or the applicable Beneficiary fails to cure such breach within five (5)
business days of the date such notice is delivered,then InnovaSafe shall have the right to terminate this
Agreement by sending written notice of termination to Depositor and all applicable Beneficiaries, and
further provided, however that if payment is due from a Beneficiary and not from Depositor, then
InnovaSafe may terminate this Agreement only as to that Beneficiary. InnovaSafe shall have no obligation
iS2ex v09.2 ®2009 InnovaSafe.Inc.All Rights Reserved
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F-5
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
to perform any obligations under this Agreement so long as such breach remains uncured,including but not
limited to, the receipt or release of any Deposit as required under this Agreement. Any party may cure
amounts past due,whether or not such party is obligated under this Agreement.
6.3 Termination Without Cause: (a) After the expiration of the initial term of this
Agreement,Depositor shall have the right to terminate this Agreement without cause,in its sole discretion,
by giving each Beneficiary and InnovaSafe written notice of its intent to terminate this Agreement at least
forty-five(45)business days prior to the expiration of the initial term or the next renewal tern,whichever
is applicable; (b) Notwithstanding any other provision hereof, at any time during the term of this
Agreement, InnovaSafe shall have the right to terminate this Agreement without cause, in its sole
discretion,by giving Depositor and each Beneficiary written notice of its intent to terminate this Agreement
at least ninety(90)days prior to the date set for termination. During such 90 day period Depositor shall
have the right to provide InnovaSafe with written instructions authorizing InnovaSafe to return the Deposit,
and if InnovaSafe does not receive such written instructions from Depositor within the foregoing 90 day
period, then InnovaSafe will use good faith in an attempt to return any Deposit in its possession to
Depositor,or if InnovaSafe is not able to locate the Depositor after such attempts,then InnovaSafe may
destroy the Deposit. InnovaSafe shall continue to be entitled to payment at its then current fees and
charges (notwithstanding the termination date specified in its notice) until the Deposits are returned or
destroyed. Notwithstanding anything to the contrary herein, InnovaSafe shall refund all fees paid
hereunder in the prorated amount attributable to the time period after termination of the is Agreement
pursuant to this provision;(c)A Beneficiary may not terminate this Agreement;(d)This Agreement shall
terminate automatically,in the event that copies of the Deposit are released to all qualified Beneficiaries as
provided by this Agreement.
6.4 Disposition of Deposit: Upon the termination of this Agreement, the following shall
apply: (a) all amounts then due and owing to InnovaSafe hereunder shall be paid in full; (b) if the
termination is as to all Beneficiaries,then InnovaSafe will return any Deposit in its possession to Depositor,
and(c)if InnovaSafe does not receive written instructions from Depositor authorizing InnovaSafe to return
all Deposits, or if InnovaSafe is not able to locate Depositor after reasonable attempts, then InnovaSafe
shall destroy the Deposit.
6.5 Survival of Certain Obligations: Upon the termination of this Agreement,all future and
continuing rights and obligations established hereunder will terminate,except: (a)the obligations of each
parry to maintain confidentiality,as defined herein;(b)the obligations of the parties under Paragraphs 6.4,
8.3 and 9.4 of the Agreement;and(c)any claim or cause of action for breach of this Agreement,or for
indemnity or contribution under Paragraph 93 of the Agreement,existing as of the date of termination,
which claim or cause of action will remain in full force and effect until such rights and obligations are fully
discharged.
7. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR
7.1 No Conflicts: Depositor represents and warrants to each Beneficiary and to InnovaSafe
that the grant by Depositor to Beneficiary of the rights granted hereunder, the Deposits made pursuant
hereto,and the implementation of this Agreement in accordance with its terms,do not and will not conflict
with, violate or infringe upon (a) any rights or interests of any person or entity not a party to this
Agreement,(b)any terms of any express or implied contract between Depositor and any other person or
entity, or (c) any judicial or administrative order, award,judgment or decree of any state or country
applicable to Depositor,or(d)any laws,rules or regulations of any country from or to which any Deposit
may be delivered in accordance with the provisions of this Agreement, including but not limited to,
customs laws,import,export,and re-export laws.
7.2 Wabij&of Source Codr. Depositor represents and warrants that the Deposits made to
InnovaSafe will, at all tunes, (a) be the version of the current release of the Software, as offered by
Depositor to the Beneficiaries or other licensees in the ordinary course of business from time to time during
the term of this Agreement,(b)be understandable and useable by a reasonably skilled programmer or other
professional to understand,maintain,and correct the Software without assistance of any other person,(c)
contains sufficient documentation to enable such a skilled programmer or other professional to understand
and use any proprietary languages or programming components that such a skilled programmer or other
IS2ex vt19.2 D 20091nnovaSafe,Inc.All Rights Reserved
Account#2738
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F-6
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
professional could not reasonably be expected to understand,and(d)includes all the devices,programming,
and documentation necessary for the maintenance of the Sotfivare by the Beneficiary upon release of the
Deposit pursuant to this Agreement, except for devices, programming, and documentation commercially
available to the Beneficiaries on reasonable terms through readily known sources other than the Depositor.
8. RECORDS,REPORTS,ADMINISTRATION
8.1 Records of Deposits: InnovaSafe will maintain written records of all Deposits made by
Depositor pursuant to this Agreement. InnovaSafe shall be entitled to rely on the completeness and
accuracy of all information, documents and materials provided to InnovaSafe by Depositor,Beneficiary or
any other person or entity, in connection with this Agreement, Depositor shall be entitled at reasonable
times during normal InnovaSafe business hours and upon reasonable notice to InnovaSafe to inspect the
records of Deposits maintained by InnovaSafe pursuant to this Agreement. Beneficiary shall be entitled at
reasonable times during normal InnovaSafe business hours and upon reasonable notice to both Depositor
and InnovaSafe,to inspect the records of Deposits maintained by InnovaSafe pursuant to this Agreement,
provided,however,the right of each Beneficiary to inspect such records of Deposit shall be limited to only
those records that pertain to the requesting Beneficiary.
8.2 intentionally Omitted
8.3 Confidentiality and Storage of Deposits:(a) InnovaSafe will protect the confidentiality of
the Deposit and all proprietary information of Depositor incorporated therein. Except as otherwise required
to cam out its duties under this Agreement, InnovaSafe will not permit any unauthorized person access to
the Deposit. If InnovaSafe receives any order fro►n a court or other judicial or arbitral tribunal pertaining to
the disclosure or release of the Deposit, InnovaSafe will immediately notify the parties to this Agreement
unless prohibited by law. Challenge of any such disclosure or release order shall be the sole responsibility
of Depositor and Beneficiary. InnovaSafe does not waive its rights to present its position with respect to
any such order. No party has the right to require ImovaSafe to disobey any order from a court or other
judicial or arbitral tribunal. (b) InnovaSafe shall implement measures to mainntain the security of all
Deposits including,but not limited to,the storage of all Deposits in secured locked facilities.
9. DISPUTE RESOLUTION AND CLAIMS
9.1 Reliant <und Susoension of Performance:(a) InnovaSafe shall have no responsibility for
determining the genuineness or validity of any instruction, document or other item given to or deposited
with it, and in the performance of its obligations under this Agreement shall be entitled to rely upon any
email or written notice, instruction or request furnished to InnovaSafe by any of the parties hereto if such
instructions are believed by InnovaSafe to have been given by a designated representative ("Designated
Representative") identified by the applicable party. With respect to the Depositor,the initial Designated
Representative shall be Gerald Salzman. Each Beneficiary shall identify its Designated Representatives on
Exhibit B or Exhibit Bns, as applicable. If no Designated Representatives are identified,all employees of
Depositor and any Beneficiary, respectively, are conclusively deemed to have proper authority to act on
behalf of such party hereunder. InnovaSafe shall have no responsibility with respect to the Deposit other
than to follow such instructions as may be provided herein. (b)If any controversy exists between or among
the Depositor and any of the Beneficiaries hereto, or with any other person or entity with respect to the
Deposit or the subject matter of this Agreement,InnovaSafe shall not be required to determine the same or
take any action with respect thereto, but in addition to and without limiting any other right or remedy to
which InnovaSafe may be entitled, InnovaSafe,shall have the right, in its sole discretion, to suspend the
performance of any or all of its obligations hereunder for so long as any such conflict or controversy may
exist hereunder.
9.2 Intentionally Omitted
9.3 lndert rat fica, tion
Depositor,on the one hand,and each Beneficiary on the other hand,jointly and severally,agree to
indemnify, defend and hold harmless InnovaSafe and its directors, officers, agents and employees
(collectively"InnovaSafe") from and against any losses, claims, damages,judgments, assessments, costs
IS2ex v09.2 f)2009 InnovaSafe,Inc.All Rights Reserved
Account#2738
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F-7
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
and other liabilities(collectively"Liabilities"),and will reimburse innovaSafe for all reasonable fees and
expenses(including the reasonable fees and expenses of counsel)(collectively, "Expenses") as they are
incurred in investigating,preparing,pursuing or defending any claim,action,proceeding or investigation,
whether or not in connection with pending or threatened litigation or arbitration and whether or not
lnnovaSafe is a party(collectively,"Actions"),relating to this Agreement or arising out of or in connection
with the services rendered or to be rendered by InnovaSafe pursuant to this Agreement,or any actions or
inactions of InnovaSafe in connection with any such services or this Agreement; provided that Depositor
and Beneficiary will not be responsible for any Liabilities or Expenses of InnovaSafe that are determined to
have resulted from the gross negligence or willful misconduct of InnovaSafe in connection with any of the
services,actions,or inactions referred to above.
9.4 Mediation and Arbitration: (a)In the event of any controversy,dispute or claim between
InnovaSafe and any other party hereto that arises under or otherwise relates to this Agreement,the parties
agree that the dispute shall be submitted to mediation facilitated by a mediator as mutually approved by the
parties,which approval shall not be unreasonably withheld or delayed by either party("Mediator").The
parties agree to participate in good faith in the mediation conferences.Each party shall bear one-half(or its
proportionate share if there are more than two parties) of the costs of the mediation, including the
Mediator's fees.(b) If the parties are unable to resolve the claim,controversy or dispute through mediation,
then it shall be decided by arbitration in Los Angeles County,California, in front of a single retired judge
through the Judicial Arbitration and Mediation Service or, in its absence, any similar organization
providing the arbitration services of retired judges ("JAMS"). If for any reason within 30 days of an
arbitration demand, any other party to the Agreement fails to state in writing that it will cooperate in
selecting the sole arbitrator,then the remaining party shall select the arbitrator. If for any reason the sole
arbitrator is not selected within 45 days of the written arbitration demand, then JAMS shall have sole
authority to assign one of its retired judges as the arbitrator that has experience with intellectual property
law. The parties shall be entitled to discovery to the full extent provided in civil actions pending in the
Superior Court for Los Angeles County,with the arbitrator deciding any controversies arising during and
with respect to discovery. The decision of the arbitrator with respect to any issues submitted for
determination shall be final and binding on all of the parties to this Agreement,provided,however that the
arbitrator shall not have the power to award punitive or exemplary damages. Not less than 21 days before
the first scheduled session of the arbitration hearing,each party shall deliver to the other. (i)a complete list
of the names of the witnesses that the party will call to testify at the hearing; and (ii) a complete and
accurate copy of each document the party will offer in evidence at the hearing, excluding witnesses and
documents that are used for impeachment.
9.5 (a) Disclaimer of Warranties: InnovaSafe expressly disclaims any and all warranties,
express or implied,in connection with this Agreement,or its implementation,or arising out of a course of
performance, dealing, or trade usage, including, without limitation, any warranties of title, non
infringement, merchantability, fitness for a particular purpose, defect, workmanship or uninterrupted or
error-free use or operation. (b) Limitations of Claims and Consequential Damages Limitation: (i) No
action or claim against InnovaSafe arising out of or in any way relating to this Agreement may be instituted
after the first to occur of the following: (a)the expiration of the period of limitation required by applicable
law; (b) the expiration of two (2) years after the event giving rise to such action or claim, or(iii) the
expiration of one(1)year after the date upon which the claiming party discovers,or reasonably should have
discovered,the facts giving rise to such action or claim.(ii)In no event shall any party,its affiliates,or any
of its or their representatives be responsible or liable for any indirect,incidental,consequential, special,
exemplary, or punitive damages(including,but not limited to, loss of data, savings, revenue or profits),
even if such parry,its affiliates,or any of its or their representatives has been advised of the possibility of
such damages,including but not limited to,any damages from the use of,interruption of use,or inability to
use any software or any data related thereto. (c) Limitation of Liability: In no event shall the total
collective liability of InnovaSafe, its affiliates, and any of its or their representatives arising out of or
relating in any way to this Agreement or it implementation exceed the total amounts paid or payable by the
depositor or Beneficiary to InnovaSafe hereunder,provided,however,that the foregoing limitation does not
apply to damages(excluding damage to the Deposit media)that are determined by a judgment of a court of
competent jurisdiction which is no longer subject to appeal or further review to have resulted from the
gross negligence or willful misconduct of InnovaSafe..(d) Proceedjno:If innovaSafe is threatened to be
made a party,required,compelled to be a party to,assist in,otherwise participate,or otherwise becomes
IS2ex v09.2 0 2009 lnnovaSafe,Inc.All Rights Reserved
Accounttt2738
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F-8
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
involved in,whether as a witness or in any other capacity,in any investigation,audit,action or proceeding,
whether judicial, arbitral or administrative, instituted by Depositor, Beneficiary, or any third party
(collectively, a "Proceeding") then in any such case Depositor and Beneficiary each agree to pay in
advance,upon receipt of written demand therefor from InnovaSafe,any and all reasonable expenses that
may be incurred by InnovaSafe in connection therewith,which shall include,without limitation,reasonable
attorneys'fees,disbursements and retainers,court costs,transcript costs,fees of accountants,experts and
witnesses, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a
witness or other participant in a Proceeding.
10. NOTICES
10.1 Notices and Notice Address: Except as otherwise provided herein for Deposits or notices
of Updates and Replacements, all notices, requests, demands, or other communications required or
permitted under this Agreement shall be in writing. Notice shall be sufficiently given for all purposes if
done by personal delivery, or electronic mail, or First Class Mail, or Certified Mail, or commercial
overnight delivery service(DHL,FWEx,UPS),or facsimile transmission. Any correctly addressed notice
that is refused,unclaimed,or undeliverable because of an act or omission of the party to be notified shall be
deemed effective as of the first date that said notice was refused,unclaimed,or deemed undeliverable by
the postal authorities, messenger, or overnight delivery service. Any party may change its contact
information by giving the other parry notice of the change in any manner permitted by this Agreement.
Any party has the option to update their contact information with InnovaSafe using the"Change of Status"
form on our website,http://www.innovasafe.com/update.htTnl.
DEPOSITOR:
Contact Name: Gerald Salzman
Title: President
Street address: 915 E.1".St.
City,State,Postal Code Los Angeles,CA 90012
Country: USA
Phone: 213-229-5300
Facsimile: 213-229-5481
Email: clo Claudia n dai 'ournal.com
Purchase Order if applicable): NA
INNOVASAFE,INC.
Corporate Address: 28502 Constellation Road,Valencia,California,91355-5082 USA
Mailing Address: PO Box 800256,Valencia,California 91380-0256 USA
Phone: USA Direct:1-800-739-3989
International Direct:1-661-310-1810
Facsimile: 1-661-295-5515
entail: clientservices®innovasafe.com
BENEFICIARY: As set forth in Exhibit B or Exhibit Bns.
11. MISCELLANEOUS PROVISIONS
11.1 Independent Contractors: The parties are independent contractors,and no party shall be
held to be a fiduciary or trustee, or to have any fiduciary obligation, to any other party, or shall be
considered, by entering into or performing any obligation under this Agreement, to assume or become
liable for any special duty,or any existing or future obligations,liabilities or debts of the other party. No
employee or agent of one party shall be considered to be an employee or agent of any other party.
IS2ex v09.2 ®2009 InnovaSafe,Inc.All Rights Reserved
Account#2739
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F-9
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
11.2 Complete Statement Interpretation and Modification of Agreement: The parties hereto
acknowledge that each has read this Agreement, understands it, and agrees to be bound by its terms. The
parties further agree that this Agreement is the complete and exclusive statement of their agreement with
respect to the subject matter hereof, and supersedes all oral or written proposals, understandings,
representations, warranties, covenants, and communications between the parties relating hereto.
InnovaSafe is not a parry to any License Agreement and no provision of any License Agreement shall be
construed to apply to InnovaSafe or otherwise give rise to any obligation of InnovaSafe. Each party and its
counsel have participated fully in the review and approval of this Agreement. Any statute or mile of law to
the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this
Agreement.No supplement, amendment, or modification of this Agreement shall be binding unless it is in
writing and signed by Depositor and InnovaSafe,and by each Beneficiary,if it affects any material right or
obligation of such Beneficiary provided hereunder. No course of performance by the parties hereunder
shall be deemed to constitute an amendment of this Agreement.
11.3 Waiver: No waiver of a breach, failure of a condition,or any right or remedy contained
in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the
waiving party. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other
breach, failure,right or remedy,whether or not similar,nor shall any waiver constitute a continuing waiver
unless the writing so specifies.
11.4 Attomevs' Fees: In any litigation, arbitration or other proceeding by which one party
either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a
declaration of any rights or obligations under this Agreement, the prevailing patty shall be awarded
reasonable attorneys' fees, together with any costs and expenses,to resolve the dispute and to enforce the
Tina!judgment.
11.5 Force Maieure: Except for obligations to make payment as indicated herein, no party
shall be held responsible for any act, failure, event, or circumstance addressed herein if such act, failure,
event,or circumstance is caused by conditions beyond such parry's reasonable control.
11.6 Due Authorization, No Third Party Ri is Partial Invalidity. Headings: (a) Each parry
represents and warrants that the execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate,partnership, or limited liability company action.(b)This Agreement
is made solely for the benefit of the parties to this Agreement, the Designated Beneficiaries, and their
respective permitted, authorized and acknowledged successors and assigns, and no other person or entity
shall have or acquire any right by virtue of this Agreement. (c)If any provision of this Agreement is held
illegal, unenforceable, or in conflict with any law of any federal, state or local government having
jurisdiction over this Agreement, the validity of the remaining provisions hereof shall not be affected
thereby.(d)The headings in this Agreement are included for convenience only and shall neither effect the
construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations
of the parties to this Agreement.
1 L7 Governing Law: The validity of this agreement and any of its terms or provisions, as
well the rights and duties of the parties under this agreement, shall be construed pursuant to and in
accordance with the laws of the State of California, and each party to this agreement specifically agrees to
submit to the jurisdiction of the courts of the State of California.
11.8 Instructions to InnovaSafe:This Agreement shall constitute instructions to InnovaSafe as
escrow agent. In addition,Depositor and each Beneficiary agrees to execute,deliver and be bound by any
supplemental or general policies or procedures of InnovaSafe or such other instruments as may be
reasonably required by InnovaSafe in order to perform its obligations as contemplated by this Agreement.
In the event of any conflict or any inconsistency between such policies or procedures and any provision of
this Agreement,the provision of this Agreement shall control.
1 L9 Authorization to Copy: Depositor authorizes InnovaSafe to use and copy the Deposit as
determined by InnovaSafe in its sole discretion as necessary for the performance of its obligations
hereunder, including but not limited to, performing any Deposit verification testing as authorized
1S2cx v09.2 0 2009 InnovaSafe,Inc.All Rights Reserved
Account#2738
Page 10 of 16
F-10
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
hereunder, provided, however, that the foregoing authorization does not grant, sell, assign or otherwise
transfer to hmovaSafe any title to or ownership of any part of the Deposit or Software, or related
documentation, or any other property of Depositor, except for the media upon which the Deposit is
recorded,title to and ownership of which shall pass to InnovaSafe as provided herein.
11.10 Counterparts, Facsimile and Scanned Cony: This .Agreement may be signed in one or
more counterparts,by facsimile or scanned copy each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF,the parties have executed this Agreement as of the date below the signatures.
DEPOSITOR INNOVASAFF.
BY: BY:
Signature Signature
Name:Gerald L.Salzman Name:
Title:President Title
Date: 7/13//1) Date:
IS2ex v09.2 D 2009 InnovaSafe,Inc.All nights Reserved
Account#2738
Page 11 of 16
F-11
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit F
APR 22 16
11 13A
EXHIBIT B
BENEFICIARY ENROLLMENT FORM
INNOVASAFE AccouNx#2738
The undersigned Beneficiary hereby acknowledges, accepts, and agrees to be bound by the terms of the above-
referenced Sollware Source Cade Escrow Agreement by and between InnovaSafe, Inc.,a California corporation,as
intellectual property Escrow Agent and Journal Technologies,Inc.formerly known as Sustain Technologies,Inc.as
Depositor,on this 22'd day of___Apdj__,2016 (the"Agreement").
BENEFICIARY INFORMATION:
*This contact person will receive ALL deposit and update deposit notifications.
❑ Check here if there is an alternate contact person or additional Designated Representatives and list
them on the back of this form. i
i
Company:County of Fresno u� Designated Representative:Intemal Services
Department
Title: Email:q6eeoie1'3dcorr�rztcfsato,Fresno.C4.US
St.Address:2048 N Fine Avenue F City/State:Fresno,CA
Postal Code:93727 Country:USA I
Tel#:559-600-5800 Fp 0:559-600-5927
Signature(Required): 1
DEPOSITOR INFORMATION: i
I
Company:Journal Technologies,Inc. I Contact:Gerald L.Salzman r
Title:President I Email:maryjoe rodriguezgadailyjoumal.com
St.Address:915 E 10 Street CirylState:Los Angeles,CA
Postal Code:90012 Country:USA
Tel#:213-229-5434 Fax#:NA
PLEASE LIST WHICH SOFTWARE PACKAGE(S)THIS BENEFICIARY IS ENTITLED:
eCourt
See Ex.' Party responsible for: Depositor Parry responsible for: Depositor
Schedule of Fees Annual Deposit fee: C Beneficiary Annual Beneficiary fee: ❑Beneficiary
Invoicing Contact(Reauiredl:
Depositor: Beneficiary:
Contact Name:Maryjoe Rodriguez Contact Name:
Address:9!5 E 1"Street Address:
Los Angeles,CA 90012
Phone:213-229-5402 Phone
Fax:NA Fax: ^�
email:maryjoe_rodriguez@dailyjournal.com entail:
PO#: Po#:
Please return this form to: InnovaSafe,Inc.
PO Box 800256
Valencia,
CA CA 91380-0256 USA
Received
InnovaSafe, Inc
APR 2 2'2016
F-12
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit G
MINIMUM SYSTEM REQUIREMENTS
Customer On-Premise - Primary ( 51-500 user )
REMOTE OFFICE
USERS
=0* INTERNAL USERS PUBLIC USERS
FIPS 140-2 _ _
REMOTE USERS • 4
HTTPS
VPN
Customer Data Center
Primary Application Zone(DMZ) FI AL F1 AL
eCourt Zone
LOAD FIR WALL APP04
BALANCER PUBLIC PORTAL
APPLICATION
SERVER
TRAI NG, APPLICATION SERVERS
REPORTIN 8e TESTING FIREWALL
APP03 APPO1 APP02 5703
APPLICATION FILESERVER
SERVER
24 HR BACKUP
AND REST R
D802) D8
0
1 ST02 STOl DB03
DATABASE PRIMARY DATABASE DOCUMENT MYSQL
DATABASE STORAGE STORAGE DATABASE
VPN
TO DISASTER RECOVERY
DATA CENTER
G-1
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit G
Customer On-Premise - Disaster Recovery ( Off-site )
REMOTE OFFICE
USERS
�.y PUBLIC USERS
FIPS 140 2
REI tOTE$USERS
QHTTPS
VPN'
Customer Disaster Recovery
Data tenter................ O.. a........ '
Disaster Recovery FIREWALL FIREWALL
Application Zone
eCourt Zone
FIREVIALL (APP06
PUBLIC PORTAL
APPLICATION
SERVER
APP TION
APP05
APPLICATION
SERVER
DB03 if4 ST03
PRIMARY DATABASE DOCUMENT
DATABASE STORAGE STORAGE
-------------------�= VPNT��
DMZ
FROM PRIMARY DATA CENTER
G-2
DocuSign Envelope ID: 06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit G
Data Centers
Sample Hardware/Software Manifest
• *APP01 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Tomcat 8 or currently supported version of Tomcat.
o Java 8 or alternative model, like open JDK
o Hazelcast
• *APP02 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Tomcat 8 or currently supported version of Tomcat.
o Java 8 or alternative model, like open JDK
o Hazelcast
• APP03 - report/testing/training server (4 CPU / 16 GB RAM / 500 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Tomcat 8 or currently supported version of Tomcat.
o Java 8 or alternative model, like open JDK
o Jasper
• APP04 - portal server (2 CPU / 8 GB RAM / 100 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Apache or Nginx
• APP05 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Tomcat 8
o Java 8 or alternative model, like open JDK
• APP06 - portal server (2 CPU / 8 GB RAM / 100 GB HDD / 1Gb NET)
o Ubuntu Linux or currently supported version of Windows server (Server 2022)
preferred.
o Apache or Nginx
• DB01 - db server (8 CPU / 64 GB RAM / 100 GB HDD / 1Gb NET)
o MS Windows Server 2016 currently supported version of Windows server (Server
2022) preferred.
o MS SQL Server 2016 Enterprise edition
• D1302 - db server (8 CPU / 64 GB RAM / 100 GB HDD / 1Gb NET)
o MS Windows Server 2016
o MS SQL Server 2016 Enterprise edition
• ST01 - Document/app server storage device with
0 1 TB for Documents
o 500 GB for app server data
0 100 GB for config mgmt data
o 500 GB for report server data
• ST02 - Database storage device with
0 1 TB for DB
• ST03 - Document/app server storage device with
o 1 TB for Documents
G-3
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit G
0
0 500 GB for app server data
0 100 GB for config mgmt data
0 500 GB for report server data
• ST04 - Database storage device with
o 1 TB for DB
• Load balancer
• Firewalls and VPN devices as required
*Additional application and database servers may be added to scale up the solution.
G-4
DocuSign Envelope ID:06E80231-AF8F-4448-A06B-B7615A1B8158
Exhibit H
Health Insurance Portability and Accountability Act (HIPAA)
1. The terms of this Exhibit H apply to the Agreement only to the limited extent that
County requires that Contractor handle, view, or access Protected Health Information ("PHI") in
order to provide support or troubleshooting pursuant to this Agreement or, in the instance that PHI
is inadvertently received by Contractor. In these cases, County is a "Covered Entity," and the
Contractor is a "Business Associate", as these terms are defined by 45 CFR 160.103. In
connection with providing services under the Agreement, both parties anticipate that the Contractor
may, in rare occasions only, receive PHI from or on behalf of the County. County is responsible for
securing such County PHI on its own computer systems and networks. The parties enter into
Business Associate Agreement(BAA)to comply with the Business Associate requirements of
HIPAA, to govern the use and disclosures of PHI under this Agreement.: "HIPAA Rules" shall
mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and
164. The parties to this Agreement shall be in strict conformance with all applicable federal and
State of California laws and regulations, including, but not limited to California Welfare and
Institutions Code sections 5328, 10850, and 14100.2 et seq.; 42 CFR 2; 42 CFR 431; California
Civil Code section 56 et seq.; the Health Insurance Portability and Accountability Act of 1996, as
amended ("HIPAX), including, but not limited to, 45 CFR Parts160, 45 CFR 162, and 45 CFR 164;
the Health Information Technology for Economic and Clinical Health Act("HITECH") regarding the
confidentiality and security of patient information, including, but not limited to 42 USC 17901 et
seq.; and the Genetic Information Nondiscrimination Act("GINA") of 2008 regarding the
confidentiality of genetic information.
Except as otherwise provided in this Agreement, the Contractor, as a business
associate of the County, may use or disclose Protected Health Information ("PHI") to perform
functions, activities or services for or on behalf of the County, as specified in this Agreement,
provided that such use or disclosure shall not violate HIPAA Rules. The uses and disclosures of
PHI may not be more expansive than those applicable to the County, as the "Covered Entity"
under the HIPAA Rules, except as authorized for management, administrative or legal
responsibilities of the Contractor.
2. The Contractor, including its subcontractors and employees, shall protect from
unauthorized access, use, or disclosure of names and other identifying information, including
genetic information, concerning persons receiving services pursuant to this Agreement, except
where permitted in order to carry out data aggregation purposes for health care operations [45
CFR§§ 164.504(e)(2)(i), 164.504(e)(2)(ii)(A), and 164.504(e)(4)(i)]. This pertains to any and all
persons receiving services pursuant to a County-funded program. This requirement applies to
electronic PHI. The Contractor shall not use such identifying information or genetic information for
any purpose other than carrying out the Contractor's obligations under this Agreement.
3. The Contractor, including its subcontractors and employees, shall not disclose any
such identifying information or genetic information to any person or entity, except as otherwise
specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,
required by the Secretary of the United States Department of Health and Human Services
("Secretary"), or authorized by the client/patient in writing. In using or disclosing PHI that is
permitted by this Agreement or authorized by law, the Contractor shall make reasonable efforts to
limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request.
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4. For purposes of the above sections, identifying information shall include, but not be
limited to, name, identifying number, symbol, or other identifying particular assigned to the
individual, such as fingerprint or voiceprint, or photograph.
5. For purposes of the above sections, genetic information shall include genetic tests
of family members of an individual or individual(s), manifestation of disease or disorder of family
members of an individual, or any request for or receipt of genetic services by individual or family
members. Family member means a dependent or any person who is first, second, third, or fourth
degree relative.
6. The Contractor shall provide access, at the request of the County, and in the time
and manner designated by the County, to PHI in a designated record set (as defined in 45 CFR§
164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR § 164.524
regarding access by individuals to their PHI. With respect to individual requests, access shall be
provided within thirty (30) days from request. Access may be extended if the Contractor cannot
provide access and provides the individual with the reasons for the delay and the date when
access may be granted. PHI shall be provided in the form and format requested by the individual
or the County.
The Contractor shall make any amendment(s) to PHI in a designated record set
at the request of the County or individual, and in the time and manner designated by the County
in accordance with 45 CFR § 164.526.
The Contractor shall provide to the County or to an individual, in a time and
manner designated by the County, information collected in accordance with 45 CFR § 164.528,
to permit the County to respond to a request by the individual for an accounting of disclosures of
PHI in accordance with 45 CFR § 164.528.
7. The Contractor shall report to the County, in writing, any knowledge or
reasonable belief that there has been unauthorized access, viewing, use, disclosure, security
incident, or breach of unsecured PHI not permitted by this Agreement of which the Contractor
becomes aware, immediately and without reasonable delay and in no case later than two (2)
business days of discovery. Immediate notification shall be made to the County's Information
Security Officer and Privacy Officer and the County's Department of Public Health ("DPH")
HIPAA Representative, within two (2) business days of discovery. The notification shall include,
to the extent possible, the identification of each individual whose unsecured PHI has been, or is
reasonably believed to have been, accessed, acquired, used, disclosed, or breached. The
Contractor shall take prompt corrective action to cure any deficiencies and any action pertaining
to such unauthorized disclosure required by applicable federal and State laws and regulations.
The Contractor shall investigate such breach and is responsible for all notifications required by
law and regulation or deemed necessary by the County and shall provide a written report of the
investigation and reporting required to the County's Information Security Officer and Privacy
Officer and the County's DPH HIPAA Representative.
This written investigation and description of any reporting necessary shall be
postmarked within the thirty (30) working days of the discovery of the breach to the
addresses below:
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Exhibit H
County of Fresno County of Fresno County of Fresno
Department of Public Health Department of Public Health Department of Internal
HIPAA Representative Privacy Officer Services
(559) 600-6439 (559) 600-6405 Information Security Officer
P.O. Box 11867 P.O. Box 11867 (559) 600-5800
Fresno, California 93775 Fresno, California 93775 2048 North Fine Street
Fresno, California 93727
8. The Contractor shall make its internal practices, books, and records relating to
the use and disclosure of PHI received from the County, or created or received by the
Contractor on behalf of the County, in compliance with Parts the HIPAA Rules. The Contractor
shall make its internal practices, books, and records relating to the use and disclosure of PHI
received from the County, or created or received by the Contractor on behalf of the County,
available to the Secretary upon demand.
The Contractor shall cooperate with the compliance and investigation reviews conducted
by the Secretary. PHI access to the Secretary must be provided during the Contractor's normal
business hours; however, upon exigent circumstances access at any time must be granted.
Upon the Secretary's compliance or investigation review, if PHI is unavailable to the Contractor
and in possession of a subcontractor of the Contractor, the Contractor must certify to the
Secretary its efforts to obtain the information from the subcontractor.
9. Safeguards
The Contractor shall implement administrative, physical, and technical safeguards as
required by the HIPAA Security Rule, Subpart C of 45 CFR Part 164, that reasonably and
appropriately protect the confidentiality, integrity, and availability of PHI, including electronic
PHI, that it creates, receives, maintains or transmits on behalf of the County and to prevent
unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for by
this Agreement. The Contractor shall conduct an accurate and thorough assessment of the
potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI.
The Contractor shall develop and maintain a written information privacy and security program
that includes administrative, technical and physical safeguards appropriate to the size and
complexity of the Contractor's operations and the nature and scope of its activities. Upon the
County's request, the Contractor shall provide the County with information concerning such
safeguards.
The Contractor shall implement strong access controls and other security safeguards
and precautions in order to restrict logical and physical access to confidential, personal (e.g.,
PHI) or sensitive data to authorized users only. Said safeguards and precautions shall include
the following administrative and technical password controls for all systems used to process or
store confidential, personal, or sensitive data:
A. Passwords must not be:
(1) Shared or written down where they are accessible or recognizable by anyone
else; such as taped to computer screens, stored under keyboards, or visible
in a work area;
(2) A dictionary word; or
(3) Stored in clear text
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B. Passwords must be:
(1) Eight (8) characters or more in length;
(2) Changed every ninety (90) days;
(3) Changed immediately if revealed or compromised; and
(4) Composed of characters from at least three (3) of the following four (4)
groups from the standard keyboard:
a) Upper case letters (A-Z);
b) Lowercase letters (a-z);
c) Arabic numerals (0 through 9); and
d) Non-alphanumeric characters (punctuation symbols).
The Contractor shall implement the following security controls on each workstation or
portable computing device (e.g., laptop computer) containing confidential, personal, or sensitive
data:
1. Network-based firewall and/or personal firewall;
2. Continuously updated anti-virus software; and
3. Patch management process including installation of all operating system/software
vendor security patches.
The Contractor shall utilize a commercial encryption solution that has received FIPS
140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
electronic media (including, but not limited to, compact disks and thumb drives) and on portable
computing devices (including, but not limited to, laptop and notebook computers).
The Contractor shall not transmit confidential, personal, or sensitive data via e-mail or
other internet transport protocol unless the data is encrypted by a solution that has been
validated by the National Institute of Standards and Technology (NIST) as conforming to the
Advanced Encryption Standard (AES) Algorithm. The Contractor must apply appropriate
sanctions against its employees who fail to comply with these safeguards. The Contractor must
adopt procedures for terminating access to PHI when employment of employee ends.
10. Mitigation of Harmful Effects
The Contractor shall mitigate, to the extent practicable, any harmful effect that is
suspected or known to the Contractor of an unauthorized access, viewing, use, disclosure, or
breach of PHI by the Contractor or its subcontractors in violation of the requirements of these
provisions. The Contractor must document suspected or known harmful effects and the
outcome.
11. The Contractor's Subcontractors
The Contractor shall ensure that any of its contractors, including subcontractors, if
applicable, to whom the Contractor provides PHI received from or created or received by the
Contractor on behalf of the County, agree to the same restrictions, safeguards, and conditions
that apply to the Contractor with respect to such PHI and to incorporate, when applicable, the
relevant provisions of these provisions into each subcontract or sub-award to such agents or
subcontractors.
Nothing in this section 11 or this Exhibit H authorizes the Contractor to perform services
under this Agreement using subcontractors.
12. Employee Training and Discipline
The Contractor shall train and use reasonable measures to ensure compliance with the
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requirements of these provisions by employees who assist in the performance of functions or
activities on behalf of the County under this Agreement and use or disclose PHI, and discipline
such employees who intentionally violate any provisions of these provisions, which may include
termination of employment.
13. Termination for Cause
Upon the County's knowledge of a material breach of these provisions by the Contractor,
the County will either:
A. Provide an opportunity for the Contractor to cure the breach or end the
violation, and the County may terminate this Agreement if the Contractor does not cure the
breach or end the violation within the time specified by the County; or
B. Immediately terminate this Agreement if the Contractor has breached a
material term of this Exhibit H and cure is not possible, as determined by the County.
C. If neither cure nor termination is feasible, the County's Privacy Officer will
report the violation to the Secretary of the U.S. Department of Health and Human Services.
14. Judicial or Administrative Proceedings
The County may terminate this Agreement if: (1) the Contractor is found guilty in a
criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or
(2) there is a finding or stipulation in an administrative or civil proceeding in which the Contractor
is a party that the Contractor has violated a privacy or security standard or requirement of the
HITECH Act, HIPAA or other security or privacy laws.
15. Effect of Termination
Upon termination or expiration of this Agreement for any reason, the Contractor shall
return or destroy all PHI received from the County (or created or received by the Contractor on
behalf of the County) that the Contractor still maintains in any form, and shall retain no copies of
such PHI. If return or destruction of PHI is not feasible, the Contractor shall continue to extend
the protections of these provisions to such information, and limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible. This provision applies to
PHI that is in the possession of subcontractors or agents, if applicable, of the Contractor. If the
Contractor destroys the PHI data, a certification of date and time of destruction shall be
provided to the County by the Contractor.
16. Compliance with Other Laws
To the extent that other state and/or federal laws provide additional, stricter and/or more
protective privacy and/or security protections to PHI or other confidential information covered
under this BAA, the Contractor agrees to comply with the more protective of the privacy and
security standards set forth in the applicable state or federal laws to the extent such standards
provide a greater degree of protection and security than HIPAA Rules or are otherwise more
favorable to the individual.
17. Disclaimer
The County makes no warranty or representation that compliance by the Contractor with
these provisions, the HITECH Act, or the HIPAA Rules, will be adequate or satisfactory for the
Contractor's own purposes or that any information in the Contractor's possession or control, or
transmitted or received by the Contractor, is or will be secure from unauthorized access,
viewing, use, disclosure, or breach. The Contractor is solely responsible for all decisions made
by the Contractor regarding the safeguarding of PHI.
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18. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
and privacy are rapidly evolving and that amendment of this Exhibit H may be required to
provide for procedures to ensure compliance with such developments. The parties specifically
agree to take such action as is necessary to amend this agreement in order to implement the
standards and requirements of the HIPAA Rules, the HITECH Act and other applicable laws
relating to the security or privacy of PHI. The County may terminate this Agreement upon thirty
(30) days written notice in the event that the Contractor does not enter into an amendment
providing assurances regarding the safeguarding of PHI that the County in its sole discretion,
deems sufficient to satisfy the standards and requirements of the HIPAA Rules, and the
HITECH Act.
19. No Third-Party Beneficiaries
Nothing expressed or implied in the provisions of this Exhibit H is intended to confer, and
nothing in this Exhibit H does confer, upon any person other than the County or the Contractor
and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
20. Interpretation
The provisions of this Exhibit H shall be interpreted as broadly as necessary to
implement and comply with the HIPAA Rules, and applicable State laws. The parties agree that
any ambiguity in the terms and conditions of these provisions shall be resolved in favor of a
meaning that complies and is consistent with the HIPAA Rules.
21. Regulatory References
A reference in the terms and conditions of these provisions to a section in the HIPAA
Rules means the section as in effect or as amended.
22. Survival
The respective rights and obligations of the Contractor as stated in this Exhibit H survive
the termination or expiration of this Agreement.
23. No Waiver of Obligation
Change, waiver or discharge by the County of any liability or obligation of the Contractor
under this Exhibit H on any one or more occasions is not a waiver of performance of any
continuing or other obligation of the Contractor and does not prohibit enforcement by the County
of any obligation on any other occasion.
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