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HomeMy WebLinkAboutContracts & Agreements_54-2020A'GINE AFR ENGINE — SOFTWARE SERVICE PROGRAM STATE AND LOCAL LAW ENFORCEMENT AGENCY AGREEMENT This Agreement is made and entered into effective March 2, 2020 (the "Effective Date") between Marlow Innovations Inc., a California corporation D B A AFR Engine ("AFR Engine") and City of Redlands Police Department, an Originating Agency Identifier (ORI) credentialed law enforcement agency ("Agency") RECITAL WHEREAS, AFR Engine stores and disseminates to law enforcement agencies publicly and commercially gathered booking photos and booking photo data; and WHEREAS, Agency desires to obtain access to AFR Engine's Software Service with available publicly and commercially collected booking photos and booking photo data via AFR Engine's server, NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, the parties agree as follows AGREEMENT Section 1. Definitions A LEA Refers to a law enforcement agency. B. AFR Engine Software Service Refers to a web based (hosted) investigative software application C. Booking Photo Data Refers to both public and LEA data such as name, date of birth, gender, and arrest date D LEA Data. Refers to booking photos and related information collected by LEAs and available on the AFR Engine Software Service for use by other LEAs LEA data is governed by the contributing LEA' s retention policy E Public Data Refers to booking photos and associated data collected from public sources and available on the AFR Engine Software Service. F Commercial Data. Refers to booking photos and associated data collected from law enforcement agencies through paid service agreements 1 L1caktimlAgreements\AFR Engine Software Service Agreement 2.27 20 docx.}n F� AkGINE G. Users Refers to an individual who is an agent or sworn officer of Agency and who is authorized by Agency to access the AFR Engine Software Service on behalf of Agency through login credentials provided by Agency Section 2. Licensed Access to the AFR Engine Software Service A. Grant of License During the term of this Agreement, AFR Engine grants Agency a non-exclusive, non -transferable right and license to access the AFR Engine Software Service for use in accordance with the terms of this Agreement B Authorized Use Agency is prohibited from accessing the AFR Engine Software Service other than for law enforcement purposes C. Ownership of AFR Engine Software Except for the rights expressly granted by AFR Engine to Agency under this Agreement, AFR Engine retains all title and rights to the AFR Engine Software D Ownership of LEA Data Agency grants AFR Engine rights to import, store, analyze, and present LEA Data sent by Agency to the AFR Engine Software Service Agency will retain ownership rights of the LEA Data and may request removal of Agency's LEA Data from the AFR Engine Software Service upon termination of this service agreement Such request shall be made in writing to AFR Engine and Agency LEA Data will be removed within 60 days of the request. E. Restrictions on Use of AFR Engine Software Service Agency agrees that access to the AFR Engine Software Service is for authorized Users employed by Agency only F. Non-exclusive Licensed Access Agency acknowledges that AFR Engine intends to license its Software Service to other LEAs and that this Agreement provides non-exclusive access to Agency Section 3. Other Matters Relating to Access to AFR Engine Software Service. A. Accessibility The AFR Engine Software Service, LEA Data and associated tools are accessible to LEAs ONLY B. Eligibility Agency shall authorize individuals who satisfy the eligibility requirements of "Users" to access the AFR Engine Software Service AFR Engine m its sole discretion may deny AFR Engine Software Service access to any individual based on such person's failure to satisfy such eligibility requirements C. Account Security (Agency Responsibility) 2 L Icaldim\Agreements\AFR Engine Software Service Agreement 2.27 20.docx.jn As G a N (1) Agency shall be responsible for assigning an account administrator who in turn will be responsible for assigning a login and password to each of Agency's Users An unlimited number of User accounts for Agency is allowed Agency will cause the Users to maintain login and password credentials confidential and will prevent use of such login and password credentials by any unauthorized person(s) Agency shall notify AFR Engine immediately if Agency believes the password of any of its Users has, or may have, been obtained or used by any unauthorized person(s) In addition, Agency must notify AFR Engine immediately if Agency becomes aware of any other breach or attempted breach of the security of any of its Users' accounts (2) User logins are restricted to agents and sworn officers of the Agency No User logins may be provided to agents or officers of other local, state, or Federal LEAs LEA Data must reside within the AFR Engine Software Service and cannot be copied to another system except for purposes of official police investigations Section 4. Restrictions on Access to AFR Engine Software Service A. Non -Disclosure of Confidential Information Agency and each User will become privy to Confidential Information during the term of this agreement Agency acknowledges that a large part of AFR Engine's competitive advantage comes from the collection and analysis of this Confidential Information and Agency's use, except as expressly permitted under this Agreement, and disclosure of any such Confidential Information would cause irreparable damage to AFR Engine B. Restrictions As a result of the sensitive nature of the Confidential Information, Agency agrees, except to the extent expressly permitted under this Agreement, (i) not to use or disclose, directly or indirectly, and not to permit Users to use or disclose, directly or indirectly, any LEA Data information obtained through Agency's access to the AFR Engine Software Service or any other Confidential Information except for official law enforcement purposes, (ii) not to download, copy or reproduce any portion of the LEA data and other Confidential Information except for official law enforcement purposes, and (in) not to sell, transfer, license for use or otherwise exploit the LEA Data and other Confidential Information in any way Additionally, Agency agrees to take all necessary precautions to protect the Confidential Information against its unauthorized use or disclosure and exercise at least the same degree of care in safeguarding the Confidential Information as Agency would with Agency's own confidential information and to promptly advise AFR Engine in writing upon learning of any unauthorized use or disclosure of the Confidential Information C. Manner of Use Agency must use its account in a manner that demonstrates integrity, honesty, and common sense D Survival of Restrictions and Other Related Matters 3 L lealdjm\Agreements\AFR Engine Software Service Agreement 2.27 20.docx.jn AGINE FR (1) Agency shall cause each User to comply with the provisions of this Section 4 (2) Agency agrees to notify AFR Engme immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Section 4 by Agency or any User, and Agency shall reasonably cooperative with AFR Engine to regain possession of the Confidential Information, prevent its further unauthorized use, and otherwise prevent any further breaches of this Section 4 (3) Agency agrees that a breach or threatened breach by Agency or a User of any covenant contained in this Section 4 will cause irreparable damage to AFR Engine and that AFR Engine could not be made whole by monetary damages Therefore, AFR Engine shall have, in addition to any remedies available at law, the right to seek equitable relief to enforce this Agreement (4) No failure or delay by AFR Engine in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof (5) The restrictions set forth in this Section 4 shall survive the termination of this Agreement for an indefinite period of time Section 5 Term and Termination A Term The Term and Effective Date of this agreement is specified in Attachment "A " Sixty (60) days prior to the expiration of the Initial Term and each subsequent Service Period, AFR Engine will provide Agency with an invoice for the Service Fee due for the subsequent twelve (12) month period (each such period, a "Service Period"). This Agreement will be extended for a Service Period upon Agency's payment of that Service Period's Service Fee, which is due 30 days prior to the expiration of the Initial Term or the existing Service Period, as the case may be Agency may also pay in advance for more than one Service Period. B Termination (1) Agency may terminate this Agreement upon thirty (30) days prior written notice to AFR Engine for any reason (2) AFR Engine may terminate this agreement upon (a) A failure on the part of Agency to pay any amount due and payable to AFR Engine under this agreement within thirty (30) clays following receipt of written notice from AFR Engine of such failure, or (b) A material breach of any other provision of this Agreement by Agency or any User which remains uncured for thirty (30) days following receipt of written notice from AFR Engine of such material breach C. Effect of Termination Upon termination or expiration of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease to exist and Agency must promptly discontinue all use of the AFR Engine Software Service 4 L 1calcbm\Agreements\AFR Engine Software Service Agreement 22720. dock.' n F� AG I N E D No Refunds. Upon termination of this Agreement for any reason whatsoever, whether by Agency or AFR Engine, Agency shall not be entitled to a refund of the annual subscription fee, or any portion thereof Section 6 Miscellaneous A. Notices. Any notice under this Agreement must be written Notices must be addressed to the recipient and either (i) hand delivered, (ii) placed in the United States mail, certified, return receipt requested, (in) deposited with an overnight delivery service, or (iv) sent via -email and followed with a copy sent by overnight delivery or regular mail, to the address or e- mail address specified below Any mailed notice is effective three (3) business days after the date of deposit with the United States Postal Service or the overnight delivery service, as applicable, all other notices are effective upon receipt A failure of the United States Postal Service to return the certified mail receipt to the dispatcher of such notice will not affect the otherwise valid posting of notice hereunder AFR Engine's address for all purposes under this Agreement is Redlands Police Department 30 Cajon Street PO Box 1025 Redlands, CA 92373 Telephone (909) 335-4794 Email ccatren@redlandspolice org AFR Engine 12223 Highland Ave , Suite 106-777 Rancho Cucamonga, CA 91739 Telephone. 888-339-3656 E-mail sales@afrengine coni Either party may designate another address for this Agreement by giving the other party at least five (5) business day's advance notice of its address change A party's attorney may send notices on behalf of that party, but a notice is not effective against a party if sent only to that party's attorney B. Disclaimer AFR Engine makes no express or implied representations or warranties regarding AFR Engine's website, online utilities or their performance, availability, functionality, other than a warranty of merchantability and fitness for the particular purpose of searching booking photos in the database and performing other related analytical functions Any other implied warranties of merchantability or fitness for a particular purpose are expressly disclaimed and excluded C. Limitations of Liability AFR ENGINE WILL NOT BE LIABLE FOR AGENCY'S USE OF THE LEA DATA OR AFR ENGINE SOFTWARE SERVICE AND WILL NOT BE LIABLE TO AGENCY UNDER ANY CIRCUMSTANCES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXPELARY DAMAGES 5 L-\ea\djm\Agreements\AFR Engine Software Service Agreement 2,27 20 docx jn FR AG I N (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOSS OF BUSINESS) D. AFR Engine Indemnification Agency agrees to indemnify, defend and hold harmless AFR Engine and its employees, representatives, agents, officers, directors, and corporate employees (each, an "Indemnified Party"), against any and all claims, suits, actions, or other proceedings brought against the Indemnified Party based on or arising from any claim (i) resulting from Agency's or a User's breach of this Agreement, (n) or any employee or independent contractor hired by Agency or (in) any and all claims based on Agency's or a User's negligent actions or omissions Agency will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by the Indemnified Party in connection with or arising from any such claim, suit, action, or proceeding E Agency Indemnification AFR Engine agrees to indemnify, defend and hold harmless Agency and its employees, representatives, agents, officers, directors, and corporate employees (each, an "Indemnified Party"), against any and all claims, suits, actions, or other proceedings brought against the Indemnified Party based on or arising from any claim (i) resulting from AFR Engine's breach of this Agreement, (ii) or any employee or independent contractor hired by AFR Engine or (iii) any and all claims based on AFR Engine's actions or omissions AFR Engine will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorney's fees and costs awarded against or otherwise incurred by the Indemnified Party in connection with or arising from any such claim, suit, action, or proceeding F No Reliance Agency represents that it has independently evaluated this Agreement and is not relying on any representation, guarantee, or statement from AFR Engine or any other party, other than as expressly set forth in this Agreement G. Governing Law; Venue THIS AGREEMENT IS GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS -OF -LAWS PRINCIPLES THE PARTIES HERETO CONSENT THAT VENUE OF ANY ACTION BROUGHT UNDER THIS AGREEMENT WILL BE IN SAN BERNARDINO COUNTY, CALIFORNIA H. Amendments Except as otherwise permitted by this Agreement, no amendment to this Agreement or waiver of any right or obligation created by this Agreement will be effective unless it is in writing and signed by both parties AFR Engine's waiver of any breach or default will not constitute a waiver of any other or subsequent breach or default I Entirety This Agreement, including the Attachment incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement Except to the limited extent expressly provided 6 L Ica\djm\Agreements\AFR Engine Software Service Agreement 2.27 20.docx.jn ENGINE in this Section 6 (k), no contrary or additional terms contained in any purchase order or other communication from Agency will be a part of this Agreement. J. Force Majeure Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if nonperformance is caused by an occurrence beyond the reasonable control of such party and without its fault or negligence such as acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, delays of common carriers, or any other cause beyond the reasonable control of such party. K. Severability If any provision of this Agreement is held to be invalid, illegal, or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein 1N WITNESS WHEREOF, the parties hereto have executed this Agreement by persons duly authorized as of the date and year first above written CITY OF REDLANDS PAL (it, ice cConnell, Assistant City Manager r1ow, Chief Executive Officer MARLOW INNOVATIONS INC , D B A AFR ENGINE ATTEST. Donaldson, City Clerk 7 L•1ca\djm\Agreements\AFR Engine Software Service Agreement 2.27.20.docx 1n ENGINE2 ATTACHMENT "A" Term and Effective Date AFR Engine does hereby grant a license of the AFR Engine Software Service to the Redlands Police Department The term of this license shall begin on March 2nd, 2020 and shall extend for a duration of (3) three years with an expiration of March 2nd, 2023. The license fee shall amount to $4,995 for each year of service for a total of $14,985 00 Payments shall be made annually in the amount of $4,995 with the first installment due by April 1st, 2020 8 L.Icaldjm\Agreements\AFR Engine Software Service Agreement 2.27 20.docx.jn