HomeMy WebLinkAboutService Master Subscription Agreement - NEC Corp of America - AFIS Annual Maintenance and WideNet Annual Subscription Fee1316 COUNTY-Cl-i'y Buiu)iw
227 W. JEFFTAMN Boul.1"NARD
S011TH BEND. INDIANA 46601-1830
CITY OFSOUTH MEND PETE BUTTIGIEG, MAYOR
BOARD OF PUBLIC WORKS
August 14, 2018
Brent Hostutler
Attn: Legal Division
NEC Corporation of America
6535 N State Highway 161
Irvington, TX 75039
RE: Service Master Subscription Agreement
Dear Mr. Hostutler:
NIONf-, 574/235-9251
FAX 574/ 235-9171
The Board of Public Works, at its meeting held on August 14, 2018, approved the above
referenced agreement for the Automatic Fingerprint Identification System (AFIS) Annual
Maintenance and WideNet annual subscription 1'ce in the amount of $61,95 5 for AFIS
maintenance and $30,000 for WideNet, annually for five (5) years.
Enclosed please find the original of the agreement for your signature. Please sign and return
the original agreement to our office and retain a copy for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Mat -tin, Clerk
Enclosure
GARY A. Gii.,o'r SUZANNA M, MITZBER(j ELIZAM.,"m A. MARADIK JAMEs A. MUEILER THERE'SE J. DORAU
l,8 L11 rZm�
Software as a Service Master Subscription Agreement
This Software -as -a -Service Agreement, ipcluding its attached Exhibits (collectively, the
"Agreement") are entered into as of August Lq, 2018 ("'Effective Date") between NEC Corporation
of America ("NEC"), a company organized under the laws of the State of Nevada, with its principal
place of business at 3929 W. John Carpenter Freeway, Irving, Texas 75063, and City of South
Bend Police Department having its principal place of business at 701 W Sample Street, South
Bend, Indiana 46601 ("Subscriber") (each herein referred to individually as a "Party," or
collectively as the "Parties").
I - Scope of this Agreement. NEC is the provider of proprietary facial recognition computer
software application ("'Software"). NEC offers on-line access to and use of the software as
a service solution, including its Software on a subscription basis ("Subscription"), using a
vendor's government community cloud services, which is accessible to Subscriber with
appropriate login credentials. Subscriber may request to subscribe to the Subscription
service by placing a "Subscription Order" with NEC, a copy of which is attached as
Exhibit A.
2. Subscription Term. The initial Subscription term shall commence on the date, and shall
continue for the period of time, as set forth in the Subscription Order ("'Initial Subscription
Term"). Such term shall be automatically renewed for successive one-year terms
("Renewal Subscription Term") (collectively, the "Initial Subscription Term" and
"Renewal Subscription Term" shall be considered the "Term") absent written notice given
by either party within forty-five (45)days prior to the expiration of the Initial Subscription
Term or any Renewal Subscription Term of its intent not to renew this Agreement.
3. Subscription License. NEC grants to Subscriber a limited, non. -exclusive, non-
transferable, non -sub -licensable license to access and use the Software through the
Subscription solely for Subscriber's internal business purposes during the Term.
4. Vendor License. Microsoft is the vendor of and provides the government community
cloud services, which NEC hereby resells to Subscriber, as part of the Subscription. The
terms and conditions of the Microsoft license and service are attached hereto as Exhibit E,
Subscriber hereby accepts those terms and conditions. In the event there is any
inconsistency or conflict between the terms of this Agreement and Exhibit E, with respect
to the Microsoft product and services, Exhibit E shall govern.
5. Subscriber Database. In addition to, any other terms set forth in this Agreement, use,
uploading or searching of a Subscriber Database is subject to the following terms and
conditions:
a. NEC shall store a copy of data compiled, uploaded, and updated by Subscriber
("Subscriber Data"), as further detailed in Exhibit A.
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b. Subject to this Section, NEC shall consider the Subscriber Data as Confidential
Information (as the term is fiurther defined in Section 15) and use commercially
reasonable efforts to prevent unauthorized access.
c. NEC shall use commercially reasonable efforts to prevent loss or corruption of the
Subscriber Data.
d. Subscriber Data may be disclosed and shared with other subscribers of the
Subscription service with the prior written authorization of Subscriber, as set forth
in a "Subscriber Data Consent" form, a copy of which is attached as Exhibit B.
e. NEC shall not modify any data within the Subscriber Data except as expressly
authorized by Subscriber.
f. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, and
sufficiency of all Subscriber Data.
g. NEC shall not be required to maintain the Subscriber Data following the
termination of this Agreement.
6. Fees and Reimbursable Expenses. Subscriber shall pay to NEC the amount stipulated in
the Subscription Order ("Subscription Fee") during the Term of this Agreement. All Fees
are due and payable by Subscriber within thirty (30) days from the date of the invoice sent
by NEC. All Fees are non -cancellable, non-refundable, and non-proratable unless
expressly set forth otherwise in this Agreement or unless the Subscription has terminated
in accordance with the terms of this Agreement.
a. Overdue Charges. Fees not paid when due shall bear interest at the rate of 1.5%
per month from due date or the maximum interest rate allowable by applicable law.
b. Taxes. The Subscription Fee does not include any applicable sales or use tax, and
in the event that such taxes are imposed by any local, state or federal taxing
authority, Subscriber shall pay the taxes within thirty (30) days from receipt of the
invoice therefore from NEC.
7, NEC Warranties. NEC warrants to Subscriber, and disclaims and limits any other
warranties, as follows:
a. NEC shall use commercially reasonable efforts to maintain the availability of the
Subscription to the Subscriber(s) for twenty-four hours per day, seven days per
week during the Term, except for scheduled maintenance times which shall be
managed in accordance with NEC's standard maintenance services as set forth in
Exhibit D. The foregoing also applies to any unavailability caused by force
majeure circumstances and other events and circumstances beyond NEC's
reasonable control, including, for example, other third party service provider
failures or delays;
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b. The functionality of the Software shall not be materially decreased during the
Term;
c. NEC disclaims any express or implied warranty that the Software is fit for
Subscriber's intended uses or purposes; and
d. NEC makes no promise representation or warranty whether express, implied,
statutory, or otherwise, with respect to the service, including its condition, its
conformity to any representation that the Software or service shall be error -free or
will operate without interruptions;
e. NEC shall not be responsible for any false positives resulting from incorrectly
matched images, nor does NEC guarantee the accuracy of the Software, including
the percentage probability of matches or results;
£ NEC disclaims all other express or implied warranties.
8. Subscriber Warranties. Subscriber mares the following representations and warranties
to NEC:
a. Subscriber holds the requisite copyrights to Subscriber Data as necessary for the
use and sharing of the data under this Agreement;
b. Should Subscriber authorize the sharing and use of Subscriber Data with other
subscribers as described in Section 5, Subscriber has, at all times during the Term,
the requisite rights required to share the Subscriber Data with other subscribers and
grants such rights to other subscribers to search and use Subscriber Data;
c. The uploading or posting of Subscriber Data through the service by Subscriber does
not and shall not violate any third party rights, including, without limitation, any
intellectual property or confidentiality rights;
d. Subscriber shall abide by its internal policies, including any face recognition
policies. If no such facial recognition policy exist, Subscriber shall take necessary
measures to implement one. Such policies are consistent with this Agreement; and
e. Subscriber personnel shall not upload, post or otherwise transmit to the service any
information that is or may be considered "classified" under or subject to export or
import control under applicable law.
9. Subscription. In addition to any other terms set forth in this Agreement, a Subscription is
subject to the following terms and conditions:
a. Subscription, including Subscriber Data, shall only be used only for lawful and law
enforcement investigative means;
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b. Except as expressly authorized under this Agreement, the Subscription shall not be
used by or made available to any third party, and that use of the Subscription shall
be only by its Subscriber's authorized employees and contractors; and
c. Subscriber shall not sell, resell, rent, or lease the Subscription.
10. Proprietary Rights. Except for the Subscription granted herein, NEC reserves all rights
in and to the Software, including all enhancements developed by NEC during the
Subscription Term. Subscriber shall not modify, copy any portion, mirror, or reverse -
engineer the Software. All proprietary rights in and to the Subscriber Database shall be
owned by Subscriber.
11. Equipment and Services. During the Subscription Term, any maintenance, support and
training services, and equipment provided by NEC are subject to the terms and conditions
set forth in Exhibit D.
12. Insurance. During the Subscription Term, NEC shall maintain insurance coverage in at
least the amounts and types set forth on Exhibit C.
13. Subscriber Breach. If Subscriber breaches any term of this Agreement and fails to cure
the breach within thirty (30) days' notice thereof by NEC, NEC may exercise any or all of
the following cumulative remedies:
a. Suspension of the Subscription, and all rights of access to or copies of the
Subscriber Database, until the breach has been cured;
b. Termination of the Subscription; and
c. The recovery of any unpaid fees and reimbursable expenses due under this
Agreement.
14. NEC Breach. If NEC breaches any term of this Agreement and fails to cure the breach
within thirty (30) days' notice thereof by Subscriber, Subscriber may terminate the
Subscription and receive a pro -rats refund of the unused Subscription Fees for the
remaining Subscription Term of the Subscription Order.
15. Confidential Information. "Confidential Information," as used herein, means non-public
information that is exchanged between the Parties, provided that such information is (i)
labeled or identified "Confidential" at the time it is provided by the disclosing Party, or (ii)
disclosed under circumstances that would indicate to a reasonable person that the
information should be treated as confidential by the Party receiving the information. If the
disclosing Party fails to identify information as "Confidential Information" at the time of
disclosure it may subsequently identify the information as "Confidential Information" by
giving written notice to the other Party.
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Notwithstanding the foregoing definition, the term Confidential Information does not
include information which (i) has been published by the disclosing Party or is otherwise in
the public domain through no fault of the receiving Party; (ii) is properly within the
legitimate possession of the receiving Party prior to its disclosure hereunder and without
any obligation of confidence; (iii) is lawfully received by receiving Party from a third party
who lawfully possesses the information and who is not restricted from disclosing the
Confidential Information to the receiving Party; (iv) is independently developed by the
receiving Party without use of the Confidential Information; or (v) is approved for
disclosure by the disclosing Party, in writing, prior to its disclosure.
Each Party understands and agrees that in the performance of services under this
Agreement, or in contemplation thereof, that a Party may have access to Confidential
Information of the other Party. The receiving Party agrees that all Confidential Information
disclosed by the other Party shall be held in confidence and used only in performance of
services under this Agreement. The receiving Party shall exercise the same standard of care
to protect such Confidential Information as is used to protect its own proprietary data, but
in no event less than a reasonable standard of care.
Confidential Information may be disclosed in response to a valid order of a court or other
governmental body or as otherwise required by law, provided, however, that the receiving
Party first gives notice to the disclosing Party and has, as appropriate, (i) fully cooperated
in the disclosing Party's attempt to obtain a "protective order" from the appropriate court
or other governmental body, or (ii) attempted to classify the media containing the
Confidential Information to prevent access by the public, in accordance with the provisions
of the federal Freedom of Information Act ("FOIA") or similar state statutes.
16. Indemnification. Each Party shall defend, indemnify and hold the other party harmless
from and against any and all third -party claims and actions ("Claims") and all costs and
expenses (including reasonable attorneys' fees) incidental to such Claims, to the extent
proximately and proportionately caused by breach of contract, including but not limited to
a breach of representation or warranty, including but not limited to Section 9, violation of
the law, rules or regulations, misappropriation or infringement of intellectual property, the
gross negligence of the indemnifying party or anyone acting under that party's direction,
control, or in its behalf in the course of the performance of its obligations under this
Agreement.
The indemnified party shall give prompt notice of Claims to the indemnifying party.
Promptly after receipt of such notice, the indemnifying party shall assume the defense of
such Claim with counsel reasonably satisfactory to the other party. If (i) the indemnifying
party fails within a reasonable time after receipt of such notice to assume the defense with
counsel reasonably satisfactory to the other party, or (ii) upon petition by the indemnified
party, the appropriate court rules that the indemnifying party failed or is failing to
vigorously prosecute or defend such Claim, then such other party shall have the right to
undertake the defense, compromise and settlement of such Claim for the account and at the
expense of the indemnifying party. The indemnified party shall provide reasonable
assistance to the indemnifying party, at the indemnifying party's cost and expense, in
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connection with any Claim. Notwithstanding the foregoing, if the indemnified parry in its
sole discretion so elects, such indemnified party may also participate in the defense of such
Claims on a non -controlling basis by employing counsel at its expense, without waiving
the indemnifying party's obligations to indemnify or defend. Neither party shall settle or
compromise any Claim or consent to the entry of any judgment without the prior written
consent of the other party and without an unconditional release of all liability by each
claimant or plaintiff with respect to such other party.
Except as excluded below, specifically with respect to NEC's indemnity obligation, NEC will
defend and indemnify Subscriber against any third party claims or suits ("Actions") against
Subscriber which allege infringement of a United States patent or copyright by the Software,
provided that: (a) NEC is notified promptly in writing of the Action, (b) Subscriber gives NEC
the sole right to defend and settle any suit, and (c) Subscriber fully cooperates in the defense
when and as requested by NEC. Should continued use of Software be enjoined, NEC may at
its option and expense, either: (a) if commercially reasonable, procure for Subscriber the right
to continue using the affected Software, (b) replace or modify the same so that infringement
is eliminated, or (c) if none of these alternatives are commercially reasonable, either party
may terminate this Agreement and NEC shall issue a pro-rata refund of the Subscription fee.
This indemnity shall not apply to any Claims or suits concerning: (a) items manufactured by
NEC at Subscriber's request and according to Subscriber 's specifications, or (b) use of
Software, or services in a manner or for a purpose not contemplated by this Agreement. The
foregoing provisions state the entire liability and obligations of each party, and the exclusive
remedy of the other, with respect to any alleged intellectual property infringement hereunder.
17. Limitation of Liability: EXCEPT FOR EITHER PARTY'S LIABILITIES ARISING
FROM USE OF INTELLECTUAL PROPERTY BEYOND THE SCOPE PERMITTED
BY THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR DAMAGES EXCEEDING THE SUBSCRIPTION FEES PAID OR
PAYABLE TO THE OTHER PARTY UNDER THE TRANSACTION GIVING RISE TO
THE CLAIM; AND NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY
CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL
DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES
FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE), ARISING OUT OF THIS
AGREEMENT, (INCLUDING ANY DAMAGES ARISING UNDER ANY CLAIM OR
NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY), EVEN IF THE PARTY
INCURRING SUCH DAMAGES HAS ADVISED THE OTHER PARTY OF THE
POSSIBILITY OF SUCH DAMAGES.
18. Force Maj cure. Except for the obligation to pay monies due and owing, neither Party shall
be responsible for any failure to perform or delay in performing any of its obligations
hereunder where and to the extent that such failure or delay results from causes outside the
reasonable control of the Party, including but not limited to governmental actions, acts of
terrorism, transportation or labor strikes, environmental conditions, fire, flood, riot, strike,
or life- or health -threatening conditions.
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19, Notices. Notices required under this Agreement shall be sufficient if contained in writing
and delivered by hand, express or overnight mail, or by registered or certified mail, postage
prepaid, return receipt requested, addressed to the Parties as specified below. All notices
or communication shall be deemed given when received by the intended recipient,
To NEC: NEC Corporation of America
Attention: Legal Division, Contracts Administration
Department
3929 W John Carpenter Fwy
Irving, Texas 75063
To Subscriber: South Bend Police Department
701 W. Sample St.
South Bend, IN 46601
Attention: Charlie Eakins
20. Miscellaneous.
a. Waiver of Terms and Conditions. Failure of either Party to enforce any of the
terms or conditions of this Agreement shall not constitute a waiver of any such
terms or conditions or of any other terms or conditions.
b. Precedent of Documents. This Agreement takes precedence over the language of
any implementing Subscriber Order or similar document. In case of any conflict
between provisions of this Agreement or in any purchase order and provisions
contained in any invoice, order acknowledgement or other document submitted by
Subscriber, the provisions of this Agreement shall govern. Preprinted terms and
conditions contained in any purchase order or in any invoice, order
acknowledgement or other document provided by Subscriber shall be void and have
no effect.
c. Severability. If, any provision of this Agreement is for any reason held to be
unenforceable all other provisions of this Agreement shall remain in full force and
effect and the unenforceable provision shall be replaced by a mutually acceptable
provision consistent with the Parties' original intent.
d. Survival of Obligations. Except as otherwise specifically set forth in this
Agreement, all provisions, including but not limited to, intellectual property
ownership, remedies, or limitations of remedies, indemnification and
confidentiality shall survive the expiration or termination of this Agreement for any
reason. All other articles and sections shall terminate upon the expiration or
termination of this Agreement for any reason.
e. Governing Law. This Agreement will have been made, executed, and delivered in
the State of Indiana and will be governed and construed for all purposes in
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accordance with the laws of the State of Indiana without giving effect to conflict of
law's provisions. The parties specifically disclaim the United States Convention on
Contracts for the International Sale of Goods.
f Publicity. NEC agrees not to publish or use any advertising, sales promotion, press
release, or publicity documents regarding this Agreement without Subscriber's
prior written approval. Any approval required under this Section shall not be
unreasonably withheld or delayed. Subscriber agrees to provide NEC with the
Subscriber's authorized corporate logo, for use on the NEC website. Within the
first year of this Agreement, Subscriber further agrees to provide one "testimonial"
quote, from the Subscriber employee of their choosing.
g. Binding Upon Successors. -This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and assigns.
Subscriber may assign its rights and/or obligations hereunder; (a) to any subsidiary,
parent company or affiliate; (b) pursuant to any financing, merger or reorganization,
or (c) pursuant to any sale or transfer of substantially all of the assets of the
Subscriber. Otherwise, neither party may assign its rights and/or obligations under
this Agreement without the prior written consent of the other party. Nothing in this
Agreement, express or implied, is intended to confer upon any person or entity other
than the parties hereto and their respective permitted successors and assigns, any
rights, benefits or obligations hereunder.
h. Authority. Subscriber and NEC represent and warrant that (a) all necessary
approvals and authority to enter into this Agreement and bind the Parties have been
obtained, (b) the person executing this Agreement on behalf of each party has
express authority to do so and, in so doing, to bind Subscriber or Contractor hereto,
(c) each party the right to make the disclosures of Confidential Information under
this Agreement and (d) the execution of this Agreement by Subscriber or Contractor
does not violate any provision of any by-law, charter, regulation or any other
governing authority of such party.
Independent Contractor. In providing Software and services pursuant to this
Agreement, NEC is acting solely as an independent contractor and not as an agent
of any other party. Persons furnished by NEC shall be regarded solely as NEC's
employees, and shall be under its sole and exclusive direction and control. They
shall not be considered employees of Subscriber for any purpose. Neither party
undertakes by this Agreement to perform or discharge any liability or obligation of
the other party, whether regulatory or contractual in nature, or to assume any
responsibility for the conduct of the business or operations of the other party.
Nothing contained in this Agreement is intended to give rise to a partnership or
joint venture between the parties or to impose upon the parties any of the duties or
responsibilities of partners or joint ventures.
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j. Headings. The section headings contained herein are inserted only for convenience
in reference and arc not intended to define or limit the scope of any provision of
this Agreement.
k. Counterparts, This Agreement may be executed in two, or more counterparts, each
of which will be considered an original, but all of which together will constitute
one and the same instrument, binding upon all parties hereto. The dates contained
in the signature blocks of this Agreement only indicate the date(s) upon which such
document was signed, and shall have no effect on any other term of this Agreement,
including, but not limited to the Agreement Effective Date.
2 1. Entire Agreement. This Agreement, together with each Subscription Order(s) and
Subscriber Data Consent hereafter submitted by Subscriber and accepted by NEC, is the
complete Agreement between the parties concerning the subject matter herein and
supersedes any prior oral or written communications between the Parties with regard to the
subject matter contained herein. There are no conditions, understandings, agreements,
representations, or warranties, expressed or implied, which are not specified or
incorporated herein. THIS AGREEMENT MAY NOT BE MODIFIED, CHANGED, OR
AMENDED EXCEPT BY A WRITTEN AMENDMENT SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF EACH PARTY.
By the duly authorized signatures below, the Parties hereto agree to and enter into this Agreement,
,as of the Effective Date.
City of South Bend Police Department
Authorized Representative
Printed Name
Title
Date
NEC Corporation of America
Authorized Representative
Printed Name
APPUQVXD
Board of P11Wk Work,
AUG 1 8
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Title
Date
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EXHIBIT A
Subscription Order Form
Agency Name:
City of South Bend Police Department
Mailing Address:
701 W. Sample St., South Bend, IN 46601
Physical Address:
701 W. Sample St., South Bend, IN 46601
Phone:
574-245-6106
Email:
ceakins@southbendin.gov
Contact Person:
Charlie Eakins
Subscription Term:
5 years
Subscription
Commencement Date:
To Be Determined
Subscription
-Expiration Date:
To Be Determined
Software
NeoFace WideNet service is cloud -based, designed to expedite and improve the
investigative process for law enforcement and other agencies to match photos of
suspects or persons of interest with identified photos in the WideNet database.
Hosting
Microsoft Azure Government Cloud solution; Subscriber data is logically separated
from other subscriber data.
Interface
NEC provides access to a photo gallery maintenance API hosted on the Microsoft
Azure Government Cloud. Subscriber's developers can invoke this API to perform
direct integration between their photo systems and their NeoFace WideNet gallery. The
API will be exposed as a standard Web Services endpoint and provide the following
operations.
Register — Adds a new photo image to the NeoFace WideNet gallery. Photo will be
uploaded and registered into the client's photo gallery along with associated metadata,
Update — Updates a face image, or the associated metadata already registered to the
photo gallery.
Delete — Removes a facial image and associated metadata from the photo gallery.
Subscription Fees:
$30,000
Payment Currency:
U.S. dollars SD
Payment Frequency:
Annual
Initial Training and
Included
On -going Maintenance
Services:
Conditions: Subscriber understands and agrees that the availability of other data is subject to the consent given by
other Subscription subscribers, and, therefore, availability may change over time. Subscriber shall not rely on the
availability of the data nor should continuing availabiliy be considered a material term of the Agreement.
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This Subscription Order is subject to the terms and conditions of the SaaS Master Subscription
Agreement between Subscriber and NEC.
NEC Corporation of America
Authorized Representative
Printed Name
Title
Date
City of South Bend Police Department
AI"PAQVXD
Authorized Representative at"d of, Ptwic 'Works
AU 4Ma
Printed Name
Title
Date
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Subscriber Data Consent Form
Pursuant to the Agreement between Subscriber and NEC, Subscriber hereby consents to other
Subscription subscribers searching and using Subscriber Data, Other Subscription subscribers use
or searching of Subscriber Data shall be subject to the terms and conditions of the Agreement.
Agency Name:
City of South Bend Police Department
Mailing Address:
Physical Address:
Phone:
Email.
Contact Person:
Effective Date.
Consent Term.
Subscription Expiration Dater
Conditions:
Subscriber Data includes demographic information, person ID, and face image.
Subscriber understands and agrees that Subscriber may revoke sharing or shorten the duration of the consent term
with at least 30 days' advance written notice to NEC.
City of South Bend Police Department
Authorized. Representative II
PWVW
Board
U:
Printed N rane
1 p1.' 1
Title
Date
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EXHIBIT C
Insurance Coverage Requirements
NEC SHALL HAVE AND MAINTAIN IN FULL FORCE AND EFFECT FOR THE
DURATION OF THIS AGREEMENT INSURANCE INSURING AGAINST CLAIMS FOR
INJURIES TO PERSONS OR DAMAGES TO PROPERTY WHICH MAY ARISE FROM OR
IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES BY NEC, ITS AGENTS,
REPRESENTATIVES, OR EMPLOYEES.
NEC SHALL MAINTAIN COVERAGE AND LIMITS NO LESS THAN:
(a) COMPREHENSIVE GENERAL LIABILITY OF $1,000,000 PER OCCURRENCE FOR
BODILY AND PERSONAL INJURY, SICKNESS, DISEASE OR DEATH, INJURY TO
OR DESTRUCTION OF PROPERTY, INCLUDING LOSS OF USE RESULTING
THEREFROM, AND $2,000,000 IN AGGREGATE.
(b) COMPREHENSIVE AUTOMOBILE LIABILITY (ANY AUTO) OF $1,000,000
COMBINED SINGLE LIMIT PER OCCURRENCE FOR BODILY AND PERSONAL
INJURY, SICKNESS, DISEASE OR DEATH, INJURY TO OR DESTRUCTION OF
PROPERTY, INCLUDING LOSS OF USE RESULTING THEREFROM.
(c) PROFESSIONAL LIABILITY OF $1,000,000 LIMIT FOR CLAIMS ARISING OUT OF
PROFESSIONAL SERVICES CAUSED BY NEC'S ERRORS, OMISSIONS, OR
NEGLIGENT ACTS.
(d) WORKERS' COMPENSATION LIMITS AS REQUIRED BY THE STATE OF TEXAS
AND EMPLOYERS LIABILITY LIMITS OF $1,000,000 PER ACCIDENT.
(e) UMBRELLA LIABILITY OF $1,000,000
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EXHIBIT D
Equipment and Services
This Exhibit is applicable to Services and Equipment which may be provided by NEC Corporation
of America ("NEC") as part of the Subscription services.
Definitions. These supplemental definitions shall apply to Services and Equipment
delivered under this Agreement. Any capitalized terms not otherwise defined herein shall
have the meaning that is given to it elsewhere in the Agreement.
a. "Equipment" means hardware products leased to Subscriber by NEC hereunder as
part of the Subscription service.
b. "Services" means the installation, maintenance, professional or other related
services performed by NEC hereunder.
C. "Time & Materials Price" or "T&M" Services may be offered on an hourly basis
at defined labor rates plus any materials or tools of the trade or other costs as
described in an Exhibit to this Appendix.
2. Equipment.
a. Equipment Title, Delivery and Risk of Loss. NEC retains ownership of all
hardware and components, and such Equipment shall be returned to NEC at the
termination or expiration of the contract term. Equipment will be shipped F.O.B.
origin.
3. Services. NEC represents and warrants that all Services provided to Subscriber pursuant
to any Subscription Order shall be performed by competent personnel, with professional
diligence and skill, consistent with industry standards, and will conform in all material
respects to the specifications and requirements set forth in the Agreement.
a. Maintenance Services. NEC possesses the requisite knowledge and experience to
ensure that Subscriber's Subscription will be available on a continuous basis, as
described below, with minimal interruptions.
NEC's CJIS-compliant Biometrics Operations Support Service (BOSS) will
provide standard 8 x S remote coverage for WideNet services. NEC's U.S.-based,
CJIS-compliant Biometrics Operations Support Service (BOSS) Call Center is
operated by a dedicated engineering team that performs Remote Monitoring
Service (RMS) activities, including service request logging, response, tracking,
escalation, resolution, and report management.
NEC's maintenance and support services are based on a standard four -tiered
support model that follows industry best practices for delivering technical support,
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and ensures that all Subscription components will remain in optimal operational
condition for the duration of the agreement. The following is a brief description of
the four tiers of support:
• Level 1 Support— Consisting of BOSS call center personnel, first line support
staff are assigned to initiate trouble tickets, log related incident information, and
ensure that the appropriate field support personnel are engaged.
• Level 2 Support — Consisting of area Field Service Engineer "FSEs" and
remote Subject Matter Expert "SMEs" that can be specifically assigned to
Subscriber, second line support staff are available to resolve common incidents
when specialized knowledge, skills, and abilities are required.
• Level 3 Support — Consisting of implementation/delivery personnel, third line
support staff are engaged along with related managers to provide escalation
support when normal support processes fail to resolve an incident within the
required timeframe.
• Level 4 Support — Consisting of software developers and R&D team members
primarily dedicated to new product development, fourth line support staff are
engaged along with senior management if for any reason Levels 1 through 3
cannot resolve an incident.
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EXHIBIT E
Microsoft Cloud Agreement
US Government Community Cloud
This Microsoft Cloud Agreement is incorporated into the Government Contract entered into
between the customer who is a Government entity ("Customer") and the person or entity who
has entered into a prime contract with the Customer ("Contractor") as an addendum and
governs Customer's use of the Microsoft Products. It consists of the terms and conditions
below, Use Rights, SLA, and all documents referenced within those documents (together, the
"agreement"). It is effective on the date that the Contractor provisions the Customer's
Subscription. Key terms are defined in Section 9.
1. Grants, rights and terms.
All rights granted under this agreement are non-exclusive and non -transferable and apply
as long as neither Customer nor any of its Affiliates is in material breach of this agreement.
a. Software. Upon acceptance of each order, Microsoft grants Customer a limited right
to use the Software in the quantities ordered.
L Use Rights. The Use Rights in effect when Customer orders Software will apply
to Customer's use of the version of the Software that is current at the time. For
future versions and new Software, the Use Rights in effect when those versions
and Software are first released will apply. Changes Microsoft makes to the Use
Rights for a particular version will not apply unless Customer chooses to have
those changes apply.
ii. Temporary and perpetual licenses. Licenses available on a subscription basis are
temporary. For all other licenses, the right to use Software becomes perpetual
upon payment in full.
b. Online Services. Customer may use the Online Services as provided in this agreement.
i. Online Services Terms. The Online Services Terms in effect when Customer
orders or renews a Subscription to an Online Service will apply for the
applicable Subscription term. For Online Services that are billed periodically
based on consumption, the Online Services Terms current at the start of each
billing period will apply to usage during that period.
ii. Suspension. Microsoft may suspend use of an Online Service during Customer's
violation of the Acceptable Use Policy or failure to respond to a claim of alleged
infringement. Microsoft will give Customer notice before suspending an Online
Service when reasonable.
iii. End Users. Customer controls access by End Users, and is responsible for their
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use of the Product in accordance with this agreement. For example, Customer will
ensure End Users comply with the Acceptable Use Policy.
iv. Customer Data. Customer is solely responsible for the content of all Customer
Data. Customer will secure and maintain all rights in Customer Data necessary
for Microsoft to provide the Online Services to Customer without violating the
rights of any third party or otherwise obligating Microsoft to Customer or to any
third party. Microsoft does not and will not assume any obligations with respect
to Customer Data or to Customer's use of the Product other than as expressly set
forth in this agreement or as required by applicable law.
V. Responsibility for your accounts. Customer is responsible for maintaining the
confidentiality of any non-public authentication credentials associated with
Customer's use of the Online Services.
Customer must promptly notify customer support about any possible misuse of
Customer's accounts or authentication credentials or any security incident related
to the Online Services.
c. Reservation of rights. Products are protected by copyright and other intellectual
property rights laws and international treaties. Microsoft reserves all rights not
expressly granted in this agreement. No rights will be granted or implied by waiver
or estoppel. Rights to access or use Software on a device do not give Customer any
right to implement Microsoft patents or other Microsoft intellectual property in the
device itself or in any other software or devices.
d. Restrictions. Customer may use the Product only in accordance with this agreement.
Customer may not (and is not licensed to): (1) reverse engineer, decompile or
disassemble any Product or Fix, or attempt to do so; (2) install or use non -Microsoft
software or technology in any way that would subject Microsoft's intellectual
property or technology to any other license terms; or (3) work around any technical
limitations in a Product or Fix or restrictions in Product documentation. Customer may
not disable, tamper with, or otherwise attempt to circumvent any billing mechanism
that meters Customer's use of the Online Services. Except as expressly permitted in
this agreement or Product documentation, Customer may not distribute, sublicense,
rent, lease, lend, resell or transfer and Products, in whole or in part, or use them to
offer hosting services to a third party.
e. Preview releases. Microsoft may make Previews available. Previews are provided
"as -is," "with all faults," and "as -available" and are excluded from the SLA
and all limited warranties provided in this agreement. Previews may not be
covered by customer support. Previews may be subject to reduced or different
security, compliance, and privacy commitments, as further explained in the Online
Services Terms and any additional notices provided with the Preview. Microsoft
may change or discontinue Previews at any time without notice. Microsoft also
may choose not to release a Preview into "General Availability."
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f Verifying compliance for Products.
i. Right to versify compliance. Customer must keep records relating to all use and
distribution of Products by Customer and its Affiliates. Microsoft has the
right, at its expense, to verify compliance with the Products' license terms.
Customer must promptly provide any information reasonably requested by the
independent auditors retained by Microsoft in furtherance of the verification,
including access to systems running the Products and evidence of licenses for
Products that Customer hosts, sublicenses, or distributes to third parties.
Customer agrees to complete Microsoft's self -audit process, which Microsoft
may request as an alternative to a third- party audit.
ii. Remedies for non-compliance. If verification or self -audit reveals any
unlicensed use of Products, then within 30 days Customer must order
sufficient licenses to cover its use. If unlicensed use or distribution is 5% or
more, the Customer may be completely responsible for the costs Microsoft has
incurred in verification, to the extent permitted by 31 U.S.C. § 1341 (Anti -
Deficiency Act) and other applicable Federal law or similar state law (as
applicable). The unlicensed use percentage is based on the total number of
licenses purchased compared to actual install base. Notwithstanding the
foregoing, nothing in this section prevents the Customer from disputing any
invoice in accordance with the Contract Disputes Act (41 U.S.C. §§7101-
7109), if and as applicable. If there is no unlicensed use, Microsoft will not
subject Customer to another verification for at least one year. By exercising
the rights and procedures described above, Microsoft does not waive its rights
to enforce this agreement or to protect its intellectual property by any other legal
means.
iii. Verification process. Microsoft will notify Customer at least 30 days in advance
of its intent to verify Customers' compliance with the license terms for the
Products Customer and its Affiliates use or distribute. Microsoft will engage
an independent auditor, which will be subject to a confidentiality obligation.
Any information collected in the self -audit will be used solely for purposes
of determining compliance. This verification will take place during normal
business hours and in a manner that does not unreasonably interfere with
Customer's operations.
2. Subscriptions, ordering.
a. Available Subscription offers. The Subscription offers available to Customer will
be established by the Government Contract and generally can be categorized as
one or a combination of the following:
i. Online Services Commitment Offering. Customer commits in advance to
purchase a specific quantity of Online Services for use during a Term and to pay
upfront or on a periodic basis for continued use of the Online Service.
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ii. Consumption Offering (also called Pay -As -You -Go). Customer pays based on
actual usage with no upfront commitment.
iii. Limited Offering. Customer receives a limited quantity of Online Services for
a limited term without charge (for example, a free trial) or as part of another
Microsoft offering (for example, MSDN). Provisions in this agreement with
respect to the SLA and data retention may not apply.
iv. Software Commitment Offering. Customer commits in advance to purchase
a specific quantity of Software for use during a Term and to pay upfront or on a
periodic basis for continued use of the Software.
b. Ordering.
i. Orders must be placed through the Contractor. Customer may place orders for
its Affiliates under this agreement and grant its Affiliates administrative rights
to manage the Subscription, but, Affiliates may not place orders under this
agreement. Customer also may assign the rights granted under Section La and
Lb to a third party for use by that third party in Customer's internal business.
If Customer grants any rights to Affiliates or third parties with respect to
Software or Customer's Subscription, such Affiliates or third parties will be
bound by this agreement and Customer agrees to be jointly and severally
liable for any actions of such Affiliates or third parties related to their use of
the Products.
ii. The Contractor may permit Customer to modify the quantity of Online Services
ordered during the Term of a Subscription. Additional quantities of Online
Services added to a Subscription will expire at the end of that Subscription.
c. Pricing and payment. Prices for each Product and any terms and conditions for
invoicing and payment will be established by the Contractor.
d. Renewal.
i. Upon renewal of a Subscription, Customer may be required to sign a new
agreement, a supplemental agreement or an amendment to this agreement.
ii. Customer's Subscription will automatically renew unless Customer provides
the Contractor notice of its intent not to renew prior to the expiration of the
Term.
e. Eligibility for Academic, Government and Nonprofit versions. Customer agrees
that if it is purchasing an academic, government or nonprofit offer, Customer meets
the respective eligibility requirements listed at the following sites:
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i. For academic offers, the requirements for educational institutions (including
administrative offices or boards of education, public libraries, or public
museums) listed at httpllgow rrcrosof.com/acadq
ii. For government offers, the requirements listed at
bttp,;#gqtI ic s ft& gypriinx
-r.-Q-1-1 .Qq1%.-and
iii. For nonprofit offers, the requirements listed at http: 9o.microsoft... c........om/n.rm-r—fi-t
Microsoft
f. Taxes. The parties are not liable for any of the taxes of the other party that the other
party is legally obligated to pay and which are incurred or arise in connection with
or related to the transactions contemplated under this agreement, and all such taxes
will be the financial responsibility of the party who is obligated by operation of law to
pay such tax.
3. Term, termination.
a. Agreement term and termination. This agreement will remain in effect until the
expiration or termination of the Government Contract, whichever is earliest.
b. Cancel a Subscription. The Government Contract will establish the terms and
conditions, if any, upon which Customer may cancel a Subscription.
4. Security, privacy and data protection.
a. Reseller Administrator Access and Customer Data. Customer acknowledges and
agrees that the Contractor will be the primary administrator of the Online Services for
the Term and will have administrative privileges and access to Customer Data,
however, Customer may request additional administrator privileges from its
Contractor; (ii) Customer can, at its sole discretion and at any time during the Term,
terminate its Contractor's administrative privileges; (iii) the Contractor's privacy
practices with respect to Customer Data or any services provided by the Contractor
are subject to the terms of the Government Contract and may differ from Microsoft's
privacy practices; and (iv) the Contractor may collect, use, transfer, disclose, and
otherwise process Customer Data, including personal data. Customer consents to
Microsoft providing the Contractor with Customer Data and information that
Customer provides to Microsoft for purposes of ordering, provisioning and
administering the Online Services.
b, Customer consents to the processing of personal information by Microsoft and its
agents to facilitate the subject matter of this agreement. Customer may choose to
provide personal information to Microsoft on behalf of third parties (including your
contacts, resellers, distributors, administrators, and employees) as part of this
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agreement. Customer will obtain all required consents from third parties under
applicable privacy and data protection laws before providing personal information to
Microsoft.
c. Additional privacy and security details are in the Online Services Terms. The
commitments made in the Online Services Terms only apply to the Online Services
purchased under this agreement and not to any services or products provided by the
Contractor.
d. As and to the extent required bylaw, Customer shall notify the individual users of the
Online Services that their data may be processed for the purpose of disclosing it to
law enforcement or other governmental authorities as directed by the Contractor or as
required by law, and Customer shall obtain the users' consent to the same.
e. Customer appoints the Contractor as its agent for purposes of interfacing with
and providing instructions to Microsoft for purposes of this Section 4.
5. Warranties.
a. Limited warranty.
i. Software. Microsoft warrants that each version of the Software will perform
substantially as described in the applicable Product documentation for one
year from the date Customer is first licensed for that version. if it does not,
and Customer notifies Microsoft within the warranty term, then Microsoft will,
at its option, (1) return the price Customer paid for the Software license or (2)
repair or replace the Software.
ii. Online Services. Microsoft warrants that each Online Service will perform in
accordance with the applicable SLA during Customer's use. Customer's
remedies for breach of this warranty are in the SLA.
The remedies above are Customer's sole remedies for breach of the warranties in this
section. Customer waives any breach of warranty claims not made during the
warranty period.
b. Exclusions. The warranties in this agreement do not apply to problems caused by
accident, abuse or use inconsistent with this agreement, including failure to meet
minimum system requirements. These warranties do not apply to free or trial
products, Previews, Limited Offerings, or to components of Products that Customer
is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above, to the extent not prohibited
by applicable law, Microsoft provides no warranties or conditions for Products
and disclaims any other express, implied, or statutory warranties for Products,
cool
vt1222017
including warranties of quality, title, non -infringement, merchantability and
fitness for a particular purpose.
6. Defense of third party claifns.
a. By Microsoft. Microsoft will defend Customer against any third -party claim to the
extent it alleges that a Product or Fix made available by Microsoft for a fee and used
within the scope of the license granted under this agreement (unmodified from the
form provided by Microsoft and not combined with anything else), misappropriates a
trade secret or directly infringes a patent, copyright, trademark or other proprietary
right of a third party. If Microsoft is unable to resolve a claim of infringement under
commercially reasonable terms, it may, as its option, either: (1) modify or replace the
Product or fix with a functional equivalent; or (2) terminate Customer's license and
refund any prepaid license fees (less depreciation on a five-year, straight-line basis)
for perpetual licenses and any amount paid for Online Services for any usage period
after the termination date. Microsoft will not be liable for any claims or damages due
to Customer's continued use of a Product or Fix after being notified to stop due to a
third -party claim.
b. Customer's agreement, Customer agrees that use of Customer Data or non -
Microsoft software Microsoft provides or otherwise makes available on Customer's
behalf will not infringe any third parry's patent, copyright or trademark or make
unlawful use of any third parry's trade secret. In addition, Customer will not use an
Online Service to gain unauthorized access to or disrupt any service, data, account
or network in connection with the use of the Online Services.
c. Rights and remedies in case of possible infringement or misappropriation. If
Microsoft reasonably believes that a claim under this section may result in a legal bar
prohibiting Customer's use of the Product or Fix, Microsoft will seek to obtain the
right for Customer to keep using it or modify or replace it with a functional equivalent,
in which case Customer must discontinue use of the prior version immediately. If
these options are not commercially reasonable, Microsoft may terminate Customer's
right to the Product or Fix and refund any amounts Customer has paid for those rights
to Software and Fixes and, for Online Services, any amount paid for a usage period
after the termination date.
d. Other terms. Customer must notify Microsoft promptly in writing of a claim subject
to this section; give Microsoft sole control over the defense and settlement (provided
that for any Federal Agency Customers, the control of the defense and settlement
is subject to 28 U.S.C. 516); and provide reasonable assistance in defending the
claim. Microsoft will reimburse Customer for reasonable out of pocket expenses
that it incurs in helping. The remedies provided in this section are the exclusive
remedies for the claims described in this section.
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Notwithstanding the foregoing, and solely with respect to Federal Agency Customers,
Microsoft's rights set forth in this section (and the rights of the third parry claiming
infringement) shall be governed by the provisions of 28 U.S.C. § 1498.
7. Limitation of liability.
For each Product, each party's maximum, aggregate liability to the other under this
agreement is limited to direct damages finally awarded in an amount not to exceed the
amounts Customer was required to pay for the applicable Products during the term of this
agreement, subject to the following:
a. Online Services. For Online Services, Microsoft's maximum liability to Customer
for any incident giving rise to a claim will not exceed the amount Customer paid for
the Online Service during the 12 months before the incident; provided that in no event
will Microsoft's aggregate liability for any Online Service exceed the amount paid
for that Online Service during the Subscription.
b. Free Products and distributable
code that Customer is authorized t
payment to Microsoft, Microsoft's
awarded up to US$5,000.
code. For Products provided free of charge and
a redistribute to third parties without separate
liability is limited to direct damages finally
c. Exclusions. In no event will either party be liable for loss of revenue or
indirect, special, incidental, consequential, punitive, or exemplary damages, or
damages for loss of use, lost profits, revenues, business interruption, or loss of
business information, however caused or on any theory of liability.
d. Exceptions. The limits of liability in this section apply to the fullest extent permitted
by applicable law, but do not apply to: (1) the parties' obligations under Section 6;
or (2) violation of the other's intellectual property rights.
For Customers that are Federal Agencies, this Section shall not impair the Customer's
right to recover for fraud or crimes arising out of or related to this agreement under any
federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733.
8. Miscellaneous
a. Notices. You must send notices by mail, return receipt requested, to the address below.
Microsoft Corporation
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA
Via Facsimile: (425) 936-7329
Microsoft Corporation Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA
Via Facsimile: (425) 936-7329
v11222017
Customer agrees to receive electronic notices from us, which will be sent by email
to the account administrator(s) named for your Subscription. Notices are effective on
the date on the return receipt or, for email, when sent. You are responsible for
ensuring that the email address for the account administrator(s) named for your
Subscription is accurate and current. Any email notice that we send to that email
address will be effective when sent, whether or not Customer actually receives the
email.
b. Assignment. Customer may not assign this agreement either in whole or in part.
Microsoft may transfer this agreement without Customer's consent, but only to one
of Microsoft's Affiliates. Any prohibited assignment is void.
c. Severability. If any part of this agreement is held unenforceable, the rest remains in
full force and effect.
d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
e. No agency. This agreement does not create an agency, partnership, or joint venture.
f. No third -party beneficiaries. There are no third -party beneficiaries to this agreement.
g. Use of contractors. Microsoft may use contractors to perform services, but will be
responsible for their performance, subject to the terms of this agreement.
h. Microsoft as an independent contractor. The parties are independent contractors.
Customer and Microsoft each may develop products independently without using
the other's confidential information.
i. Agreement not exclusive. Customer is free to enter into agreements to license, use
or promote non -Microsoft products or services.
Entire agreement. This agreement is the entire agreement concerning its subject
matter and supersedes any prior or concurrent communications. In the case of a
conflict between any documents in this agreement that is not expressly resolved in
those documents, their terms will control in the following order of descending
priority: (1) this agreement, (2) the Product Terms, (3) the Online Services Terms,
and (4) any other documents in this agreement.
k. Survival. All provisions survive termination of this agreement except that requiring
performance only during the term of the agreement.
1. U.S. export jurisdiction. Products are subject to U.S. export jurisdiction. Customer
must comply with all applicable international and national laws, including the U.S.
Export Administration Regulations, the International Traffic in Arms Regulations,
and end -user, end -use and destination restrictions issued by U.S. and other
governments related to Microsoft products, services, and technologies.
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vII2220I7
m. Force majeure. Neither party will be liable for any failure in performance due to
causes beyond that parry's reasonable control (such as fire, explosion, power
blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of
civil or military authority, war, terrorism (including cyber terrorism), acts of God,
acts or omissions of Internet traffic carriers, actions or omissions of regulatory or
governmental bodies (including the passage of laws or regulations or other acts of
government that impact the delivery of Online Services). This Section will not,
however, apply to your payment obligations under this agreement.
n. Contracting authority. If you are an individual accepting these terms on behalf of an
entity, you represent that you have the legal authority to enter into this agreement on
that entity's behalf.
o. Additional Terms Applicable when the Customer is a U.S. Federal Agency.
i. No provisions of any shrink-wrap or any click -through agreement (or other
similar form of agreement) that may be provided in conjunction with any
Product(s) acquired under this agreement shall apply in place of, or serve to
modify any provision of this agreement, even if a user or authorized officer of
Customer purports to have affirmatively accepted such shrink-wrap or click -
through provisions. For the avoid of doubt and without limiting the foregoing,
in the event of a conflict between any such shrink-wrap or click -through
provisions (irrespective of the products or services that such provisions attach to)
and any term or condition of this agreement, then the relevant term or condition
of this agreement shall govern and supersede the purchase of such Product(s) to
the extent of any such conflict. All acceptance of agreements and renewals shall
be executed in writing.
ii. If any document incorporated by reference into this agreement, including the
Product Terms and Online Service Terms included and/or referenced or
incorporated herein and/or therein, contains a provision (1) allowing for the
automatic termination of your license rights or Online Services; (2) allowing for
the automatic renewal of services and/or fees; (3) requiring the governing law to
be anything other than Federal law; and/or (4) otherwise violates applicable
Federal law, then, such terms shall not apply with respect to the Federal
Government. If any document incorporated by reference into this agreement,
including the Product Terms and Online Service Terms included and/or
referenced or incorporated herein and/or therein contains an indemnification
provision, such provision shall not apply as to the United States indemnifying
Microsoft or any other party.
9. Definitions.
Any reference in this agreement to "day" will be a calendar day.
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m. Force majeure. Neither parry will be liable for any failure in performance due to
causes beyond that party's reasonable control (such as fire, explosion, power
blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of
civil or military authority, war, terrorism (including cyber terrorism), acts of God,
acts or omissions of Internet traffic carriers, actions or omissions of regulatory or
governmental bodies (including the passage of laws or regulations or other acts of
government that impact the delivery of Online Services). This Section will not,
however, apply to your payment obligations under this agreement.
n. Contracting authority. If you are an individual accepting these terms on behalf of an
entity, you represent that you have the legal authority to enter into this agreement on
that entity's behalf.
o. Additional Terms Applicable when the Customer is a U.S. Federal Agency.
i. No provisions of any shrink-wrap or any click -through agreement (or other
similar form of agreement) that may be provided in conjunction with any
Product(s) acquired under this agreement shall apply in place of, or serve to
modify any provision of this agreement, even if a user or authorized officer of
Customer purports to have affirmatively accepted such shrink-wrap or click -
through provisions. For the avoid of doubt and without limiting the foregoing,
in the event of a conflict between any such shrink-wrap or click -through
provisions (irrespective of the products or services that such provisions attach to)
and any term or condition of this agreement, then the relevant term or condition
of this agreement shall govern and supersede the purchase of such Product(s) to
the extent of any such conflict. All acceptance of agreements and renewals shall
be executed in writing.
ii. If any document incorporated by reference into this agreement, including the
Product Terms and Online Service Terms included and/or referenced or
incorporated herein and/or therein, contains a provision (1) allowing for the
automatic termination of your license rights or Online Services; (2) allowing for
the automatic renewal of services and/or fees; (3) requiring the governing law to
be anything other than Federal law; and/or (4) otherwise violates applicable
Federal law, then, such terms shall not apply with respect to the Federal
Government. If any document incorporated by reference into this agreement,
including the Product Terms and Online Service Terms included and/or
referenced or incorporated herein and/or therein contains an indemnification
provision, such provision shall not apply as to the United States indemnifying
Microsoft or any other party.
9. Definitions.
.Any reference in this agreement to "day" will be a calendar day.
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"Acceptable Use Policy" is set forth in the Online Services Terms.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common
ownership with a party. "Ownership" means, for purposes of this definition, control of more than
a 50% interest in an entity. "Community" means the community consisting of one or more of the
following: (1) a Government, (2) a Customer using eligible Government Community Cloud
Services to provide solutions to a Government or a qualified member of the Community, or (3)
a Customer with Customer Data that is subject to Government regulations for which the Customer
determines, and Microsoft agrees, that the use of Government Community Cloud Services is
appropriate to meet the Customer's regulatory requirements. Membership in the Community is
ultimately at Microsoft's discretion, which may vary by Government Community Cloud Service.
"Consumption Offering", "Commitment Offering", or "Limited Offering" describe categories of
Subscription offers and are defined in Section 2.
"Customer Data" is defined in the Online Services Terms.
"End User" means any person you permit to access Customer Data hosted in the Online Services
or otherwise use the Online Services.
"Federal Agency" means a bureau, office, agency, department or other entity of the United States
Government. "Fix" means a Product fix, modifications or enhancements, or their derivatives,
that Microsoft either releases generally (such as Product service packs) or provides to Customer
to address a specific issue.
"Government" means a Federal Agency, State/Local Entity, or Tribal Entity acting in its
governmental capacity. "Government Community Cloud Services" means Microsoft Online
Services that are provisioned in Microsoft's multi -tenant data centers for exclusive use by or for
the Community and offered in accordance with the National Institute of Standards and Technology
(MIST) Special Publication 800-145. Microsoft Online Services that are Government Community
Cloud Services are designated as such in the Use Rights and Product Terms. "Government
Contract" means the binding agreement between the Contractor and Customer under which
Customer orders Products from the Contractor and the Contractor binds Customer to the terms
of the this agreement.
"Licensing Site" means I tt (rishi coptracts or a successor site. "Non -
Microsoft Product" is defined in the Online Set -vices Terms.
"Online Services" means any of the Microsoft -hosted online services subscribed to by Customer
under this agreement, including Government Community Cloud Services, Microsoft Dynamics
Online Services, Office 365 Services, Microsoft Azure Services, or Microsoft Intune Online
Services.
"Online Services Terms" means the additional terms that apply to Customer's use of Online
Services published on the Licensing Site and updated from time to time.
I I
v 11222017
"Previews" means preview, beta, or other pre-release version or feature of the Online Services
or Software offered by Microsoft to obtain customer feedback.
"Product" means all products identified in the Product Teens, such as all Software, Online
Services and other web -based services, including Previews.
"Product Terms" means the document that provides information about Microsoft Products and
Professional Services available through volume licensing. The Product Terms document is
published on the Licensing Site and is updated from time to time.
"SLA" means Service Level Agreement, which specifies the minimum service level for the Online
Services and is published on the Licensing Site.
"State/Local Entity" means (1) any agency of a state or local government in the United States, or
(2) any United States county, borough, commonwealth, city, municipality, town, township,
special purpose district, or other similar type of governmental instrumentality established by
the laws of Customer's state and located within Customer's state' jurisdiction and geographic
boundaries.
"Software" means licensed copies of Microsoft software identified on the Product Terms.
Software does not include Online Services, but Software may be a part of an Online Service.
"Subscription" means an enrollment for Online Services for a defined Term as established by your
Reseller. "Term" means the duration of a Subscription (e.g., 30 days or 12 months).
"Tribal Entity" means a federally -recognized tribal entity performing tribal governmental functions
and eligible for funding and services from the U.S. Department of Interior by virtue of its status as
an Indian tribe.
"Use Rights" means the use rights or terms of service for each Product published on the Licensing
Site and updated from time to time. The Use Rights supersede the terms of any end user
license agreement that accompanies a Product. The Use Rights for Software are published by
Microsoft in the Product Terms. The Use Rights for Online Services are published in the Online
Services Terms.
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BOARD OF PUBLIC WORKS
Date
Name
111;1911115it-*�
Charles Eakins
BPW Date 08-14-18, Phone Extension 245-6106
Required Prior to Submittal to Board
Legal X Attorney Name Clara McDaniels
Controller review is required for all Contracts $5,000.00 or more
Controller and greater than one year in length per the City Purchasing
Policy
Purchasing E
Check the Appropriate
Item Type — Required for All Submissions
Agreement
M Contract
El Proposal El Addendum
El Professional Services
El Amendment
F-1 Bid Opening
0 Bid Award
E] Req. to Advertise El Title Sheet
F] Quote Opening
R Quote Award
F] Ch!g Order No.
F] C/O & PCA No.
❑ PCA
❑ Ease./Encroach.
El Traffic Control
❑ Resolution
Other:
❑ Claim
Company or Vendor Name
New Vendor
MBEMBE Contractor
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Purpose/Description
NEC Corporation of America
Yes ❑ If Yes, Approved by Purchasing
No
MBE No E Completed E-Verify Form Attached Yes
E] WBF-1
AFIS Annual Maintenance & WideNet Annual Subscription Fee
IT Operating Account
279-0672-415-36-04
AFIS Maint. $,61,955 Annual + WildeNet $ 30,000 Annual x 5 Yrs
WideNet-Initial training and on -going maintenance services
included
The South Bend Police Dept. requests BPW approval of the
contracts for annual AFIS Maintenance and WideNet Subscriber
Fees between NEC Corp. and the South Bend Police Dept.
Amount of H Increase $
F-1 Decrease $
Previous Amount
Current Percent of Change:
New Amount
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F-1
F-1
El E]
Charlie Eakins
NEC