PARTIALLY EXEC - AGREEMENT WITH VERSATERM SPIDR TECH.PDF
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January 2024 – v310124
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Please read the terms and conditions carefully. You may not use the Versaterm product and services unless
you agree to the terms of the master software and services agreement.
SPIDR TERMS OF SERVICE AGREEMENT
This SPIDR Terms of Service Agreement (the “Agreement”) is entered into by and between the Versaterm
Public Safety US, Inc. (“Versaterm” or “Contractor”) and Maricopa County for and on behalf of the Maricopa
County Sheriff’s Office (“Agency”, “the County”, or “you”) and is effective upon the date of the last signature
of this Agreement.
WHEREAS the Arizona Criminal Justice Commission (“ACJC”) has awarded Appriss Insights, LLC, an Equifax
Company (“Appriss”) the contract for the Arizona Victim Notification initiative.
AND WHEREAS Appriss Insights have entered into an agreement for the provision of the services regarding the
Arizona Victim Notification initiative (“ACJC Contract”)
AND WHEREAS Versaterm shall provide SPIDR Tech related product regarding the end-to-end victim
notification system in collaboration with Appriss
1. Definitions
For the purposes of this Agreement these terms will have the following meanings:
1.1. “Acknowledgement” means the applicable written document titled Acknowledgement Agreement
which may attached as appendix B or separately signed by Agency and Versaterm which is otherwise
incorporated as part of the Agreement, including training, specialized support, data sharing with
ACJC and data migration.
1.2. “API” means an application programming interface.
1.3. "Authorized User" means an employee, consultant, or contractor of Agency authorized by Agency to
access and use the Services on Agency’s behalf.
1.4. "Confidential Information" means this Agreement Software, Agency Data and all ideas, designs,
business models, databases, drawings, documents, diagrams, formulas, test data, marketing,
financial or personnel data, technology, products, sales information, trade services, know-how
customer or supplier information, including information provided by such customers or suppliers,
or any other information already furnished or to be furnished or made available by one Party to the
other, whether in oral, written, graphic or electronic form including any such information exchanged
during informational sessions designated as confidential, including, without limitation, information
concerning a Party's actual and potential customers and other Intellectual Property Rights of such
Party, provided, however, that Confidential Information shall not include any data or information: (i)
that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through
no act or failure on the part of the receiving Party, whether through breach of this Agreement or
otherwise; (ii) that, prior to disclosure by the disclosing Party, was already in the possession of the
receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of
its business, or as evidenced by proof of actual prior use by the receiving Party; (iii) independently
developed by the receiving Party, by Persons having no direct or indirect access to the disclosing
Party's Confidential Information provided that the receiving Party provides clear and convincing
evidence of such independent development; (iv) which, subsequent to disclosure, is obtained from
a third Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of
any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such
information; and (C) on a non-confidential basis; or (v) is further disclosed with the prior written
consent of the disclosing Party, but only to the extent of such consent.
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1.5. "Agency Data" means collectively any data, files, documentation, or other information: (i) that
Agency or any of its Authorized Users may upload to Versaterm Platform when using the Services;
and (ii) processed through the use of the Services, excluding Third Party Data and any Versaterm
Data.
1.6. “Effective Date” means the last signature date below.
1.7. "Enhancements" means any changes or additions to the Software, that improve functions, add new
functions, improve performance, or corrects errors by changes in system design or coding, including
but not limited to changes or additions that are made to the Software to provide substantial
additional value or utility.
1.8. “Go-Live Date” means the date on which the Software is available for production use, as may be
further defined in a SOW.
1.9. "including" means "including without limitation" and is not to be construed to limit any general
statement which it follows to the specific or similar items or matters immediately following it.
1.10.
"Intellectual Property" means any property, tangible or intangible, that may be subject to
Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts,
techniques, processes, procedures, approaches, methodologies, plans, systems, research,
information, documentation, data, data compilations, specifications, requirements, designs,
diagrams, programs, inventions, technologies, software (including its source code), tools, products
knowledge, know-how, including without limitation, trade secrets, and other materials or things.
1.11.
"Intellectual Property Rights" means: (a) any and all proprietary rights anywhere in the world
provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design
patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii)
privacy law; or (viii) any other statutory provision or common law principal applicable to this
Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use
of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses,
franchises, agreements or any other evidence of a right in any of the foregoing.
1.12.
"Licensed Materials" means collectively the Versaterm Platform, Software, Maintenance and
Support, and the User Documentation.
1.13.
"Network Aggregator Provider" means a third-party service provider that offers connectivity
services to securely link separate networks.
1.14.
“Open-Source Software Components” means software programs, libraries, or distributables
(commonly known as “public”, “open source” or “free” software) made publicly available by the
copyright holders.
1.15.
"Party" means either Agency or Versaterm and "Parties" means both.
1.16.
"Person" means any individual, company, corporation, partnership, government or
government agency, authority, or entity howsoever designated or constituted.
1.17.
"Point of Access" means Versaterm's, or its subcontractor's, border router, which is used to
establish connectivity from the Versaterm Platform to Versaterm's, or its subcontractor's, internet
provider, or the public internet.
1.18.
“Professional Services” all professional services purchased by Agency in respect of the
Subscription Services or use of Software (if installed on Agency’s premises), including
implementation services, data migration, specialized support, training services and any other
services as agreed to in writing.
1.19.
“Services” means the Subscription Service, Licensed Materials, Professional Services and
maintenance and support as agreed to in the ACJC Contract.
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1.20.
"Software" means the SPIDR Tech Investigation Module, Patrol Module, Insights Module and
Vinelink integration the computer programs owned by Versaterm and which are licensed to Agency,
including: (a) all maintenance modifications (updates and upgrades); (b) Enhancements; (c)
Customizations, now developed or to be developed by or for Versaterm during the Term; and (d) all
formulas, routines, subroutines, algorithms, concepts, techniques, know-how and ideas
implemented or embodied in any of the foregoing, in any form. For the avoidance of doubt, Software
excludes Third Party Components.
1.21.
"Subscription Service” means any combination of the following: (i) limited access and use
rights to the Versaterm Platform on a hosted basis, (ii) hosting services, (iii) support services, and (iv)
any other similar generally applicable services that Versaterm provides to its customers in
accordance with the User Documentation. For the avoidance of doubt, Subscription Services do not
include Professional Services.
1.22.
“Subscription Term” means, with respect to any use of Software or access to Subscription
Service, the subscription period commencing once software is made available to the Agency for use
and shall end once the ACJC Contract, has been terminated or expired. .
1.23.
“Term” means the term set out in Section 17.1. of this Agreement.
1.24.
“Third Party Data” means any data owned by a third party that the Agency accesses via the
Software.
1.25.
“Third-Party Component” means any components of the Subscription Services provided by
third parties, including Open-Source Software Components and third-party proprietary software or
services (e.g. Amazon Web Services (AWS)).
1.26.
“Third-Party Supplier” means any party who provides products and/or services, including
Open-Source Software and Third-Party Components that contribute to the overall Software provided
to the Agency by Versaterm.
1.27.
"User Documentation" means the user manuals, guides, and specifications with respect to
the operation, use, functions, and performance of the Software, as revised from time to time, and
any additional documentation for Customizations produced by Versaterm, in written or online
electronic form.
1.28.
“Versaterm Contracting Entity” means the Versaterm entity or affiliate that is counterparty to
this Agreement with You and is set forth in Section 22.
1.29.
"Versaterm Platform" means the Software, Versaterm Server and such devices and
peripherals physically located with the Versaterm Server, including all computer hardware,
software, network elements, and electrical and telecommunications infrastructure located behind
the Point of Access.
1.30.
"Versaterm Server" means that computer server located at Versaterm's premises, or a third-
party provider of hosting and/or network services, that houses the Software.
2. License
2.1. Provided there is no default of payment, for the duration of the applicable Subscription Term,
Versaterm hereby grants to Agency a revocable, limited, non-exclusive, non-sublicensable, non-
transferable, and royalty-free license to access and use of the Subscription Service or Licensed
Materials for the purpose of the ACJC Victim Notification initiative.
3. Usage Restrictions and Requirements.
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3.1. Agency shall not (a) use, reproduce, display, perform or otherwise exploit the Software except as
expressly authorized in this Agreement , (b) copy any of the Software or User Documentation except
as reasonably necessary to use the Software for its internal use as authorized herein , and in all cases
subject to the confidentiality provisions hereof, and provided that all copyright notices and any other
proprietary notices are included, (c) assign this Agreement or transfer, lease, export or grant a
sublicence of the Software or the license contained in this Agreement to any Person except as
expressly authorized herein, (d) decompile, disassemble, reverse engineer, or otherwise access or
attempt to gain access to the Software’s source code (e) give any Person other than its employees,
consultants, contractors and/or clients of Agency or other individuals identified and approved by
Versaterm to access to the Software, (f) rent or lend, with or without charge, any system which
includes the Software to any Person including clients and customers, (g) operate at any time on a
regular or irregular basis an online or offline customer service bureau involving the Software, (h)
permit (and Agency shall take all necessary precautions to prevent) third parties (including, any
parties affiliated or related to Agency) to use the Software in any way that would constitute a breach
of this Agreement, (i) use any APIs, other than the APIs expressly authorized for use by Versaterm,
with the Software or use any authorized APIs in a manner that is not permitted or published by
Versaterm, (j) remove or modify any proprietary marking or restrictive legends placed on the
Licensed Materials, (k) use any device, software, or routine to interfere with the proper working of the
Software or to bypass any security features of the Software, (l) introduce into the Versaterm Platform
any viruses, worms, defects, trojan horses, malware, or any items of a destructive nature.
3.2. Agency shall be solely and exclusively responsible for the supervision, management, and control of
Agency’s and each of its Authorized User’s use of the Licensed Materials and shall require each
Authorized User to maintain all passwords and other access credentials with respect thereto.
4. Agency’s Obligations
4.1. Where the Software will require access and use of the Versaterm Platform, Versaterm shall operate
and maintain the Versaterm Platform in accordance with the terms of this Agreement. Access to the
Versaterm Platform may be through a secure connection with the public internet or using a Network
Aggregator Provider. Agency acknowledges and agrees that Versaterm is not responsible or liable for
any communication over the public internet, or for the Network Aggregator Provider's network or its
operation or the Network Aggregator Provider's network's failure to deliver communication to and
from the Versaterm Platform on a timely basis.
4.2. Agency shall be fully responsible for the acts and omissions of all Persons that are authorized or
otherwise allowed, by Agency, to use or have access to the Software and User Documentation.
4.3. Agency agrees to co-operate with and advise Versaterm of all information which would be
reasonably required to permit Versaterm to deliver and, if applicable, install the Software. Agency
shall respond promptly to any Versaterm request to provide information, approvals, authorizations,
or decisions that are reasonably necessary for Versaterm to provide the Software.
4.4. Subject to the terms and conditions of this Agreement, and if applicable, the SOW, Agency shall
provide Versaterm with all reasonable access, which may include remote access, to Agency’s
systems and premises for the purpose of Versaterm performing its obligations pursuant to this
Agreement, and the failure of Agency to provide such access shall relieve Versaterm of its obligation
to perform such obligations.
4.5. Agency shall notify Versaterm immediately of any actual or suspected unauthorized use of its
passwords or API keys for the Versaterm Platform.
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5. Ownership
5.1. Agency acknowledges and agrees that all rights, title and interests in and to the Licensed Materials,
including all Intellectual Property embodied therein, are and shall at all times remain the exclusive
property of Versaterm and that, except as expressly set forth herein, no rights, title or interests,
including any license, is granted to Agency hereunder by implication, estoppel, or otherwise of any
kind whatsoever in or to the Licensed Materials or any portion thereof, except, in each case, for the
rights and licenses expressly granted to Agency herein. Agency further acknowledges and agrees
that all Third-Party Components are and shall at all times remain the property of the applicable Third-
Party Suppliers.
5.2. Agency shall not remove any Versaterm trademark, service mark or logo, or any proprietary notices
or labels (including any copyright or trademark notices) from the Service.
5.3. If Agency provides any feedback, comments, suggestions, ideas, descriptions of processes, or other
information to Versaterm about or in connection with any Licensed Materials, including any ideas,
concepts, know-how or techniques contained therein (collectively, “Feedback”), then Agency
hereby grants Versaterm and its affiliates a worldwide, fully paid-up, royalty-free, non-exclusive,
perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any
purpose, without any compensation to Agency or any restriction or obligation on account of
Intellectual Property Rights or otherwise. Without limiting the generality of the foregoing, nothing in
this Agreement limits Versaterm’s right to independently use, develop, evaluate, or market products,
whether incorporating Feedback or otherwise.
6. Agency Data and Hosting Provider
6.1. Agency hereby grants to Versaterm a limited, non-exclusive, non-transferable, royalty-free right to
use, reproduce, manipulate, display, transmit and distribute the Agency Data solely in connection
with providing the Licensed Materials to Agency, and improving and developing the Licensed
Materials. In addition, Versaterm may analyze Agency Data, and data of other customers, to create
aggregated and anonymized statistics or data that do not identify Agency or any individual, and
Versaterm may during and after the Term use and disclose such statistics or data in its discretion.
Except as specified otherwise in the Agreement, Agency shall be solely responsible for providing,
updating, uploading, and maintaining all Agency Data.
6.2. Agency acknowledges and agrees that Versaterm: (i) will not be responsible for the accuracy,
completeness or adequacy of any Agency Data or the results generated from any Agency Data
uploaded to the Versaterm Platform and processed by the Software; (ii) has no control over any
Agency Data or the results therefrom; (iii) does not purport to monitor Agency Data; and (iv) if
Software is installed on Agency premises, shall not be responsible to back up or maintain any back
up of the Agency Data or any portion thereof.
6.3. Versaterm may change its third-party hosting provider (“Hosting Provider”) at any time. Agency’s use
of the Licensed Materials is subject to any applicable restrictions imposed by the Hosting Provider.
Notwithstanding any other provision of this Agreement, Versaterm shall not be liable for any
problems, failures, defects, or errors with the Licensed Materials to the extent caused by the Hosting
Provider. Agency acknowledges that the Fees payable for the Licensed Materials reflect the fact that
Versaterm is not responsible for the acts and omissions of the Hosting Provider.
6.4. Agency shall ensure that its employees, consultants, contractors, and agents comply with the terms
and conditions of this Agreement or any SOW to the extent that such Persons are entitled or
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obligated under the terms hereof or thereof to exercise any rights or perform any obligations
hereunder or thereunder. Agency shall be responsible for the actions of all such employees,
consultants, contractors and agents.
7. Fees and Payment Terms
7.1. Versaterm acknowledges that the Agency shall not be invoiced for the Services provided that such
Services are paid by ACJC.
8. Taxes. – Not applicable
9. Confidentiality
9.1. Each Party acknowledges that all Confidential Information includes confidential and proprietary
information. Except as required by law, each Party shall hold Confidential Information of the other
Party in trust and confidence for and on behalf of such other Party and shall take commercially
reasonable measures to maintain the confidentiality of the Confidential Information, which
measures shall in any event be no less than what such Party would implement to protect its own
Confidential Information of a similar nature or value. Each Party agrees not to make use of
Confidential Information other than to the extent necessary for the exercise of rights or the
performance of obligations under this Agreement and not to release, disclose, communicate or
otherwise make it available to any third-party other than officers, directors, employees, consultants
and contractors of Versaterm or Agency, as applicable, who reasonably need to know it in
connection with the exercise of rights or the performance of obligations under this Agreement.
9.2. Each Party agrees that any breach of this Section 9 ("Confidentiality") may give rise to irreparable
damage to the other Party, the injury to the other Party from any such breach would be difficult to
calculate, and that money damages would therefore be an inadequate remedy for such breach. Each
Party agrees that the other Party will be entitled, in addition to all other remedies that the other Party
may have under this Agreement, at law or in equity, and without showing or proving any actual
damage sustained by it, to a permanent or temporary injunction or other order to restrain any breach,
threatened breach or the continuation of any breach of this Section 9.
9.3. Upon the termination or expiration of this Agreement, each Party will return to the other Party all
Confidential Information which is then in its possession or control. Upon the termination of this
Agreement, each Party will return to the other Party all Confidential Information of such other Party
which is then in its possession or control.
9.4. Notwithstanding the above, Versaterm reserves the right to retain Agency Data that has been
aggregated and anonymized, and Agency Data on audit logs and server system logs and in support
tickets, support requests, and direct communications with Versaterm, saved as part of routine back-
ups or as otherwise may be required by law.
9.5. If one Party becomes legally compelled to disclose any Confidential Information of the other Party
(such as by a court order or similar legal instrument or proceeding), it shall provide the other Party
with prompt notice thereof and shall not divulge any Confidential Information until the other Party
has had the opportunity to seek a protective order or other remedy. If such actions are unsuccessful,
or the other Party waives its rights to such remedies, then the compelled Party shall disclose only
that portion of the Confidential Information necessary to comply with the applicable legal
obligations.
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10. Representations and Warranties of Versaterm.
10.1.
Versaterm represents and warrants as follows: (a) Versaterm has the power and the capacity
to enter into, and to perform its obligations under this Agreement. This Agreement and each of the
agreements, contracts and instruments required by this Agreement to be delivered by Versaterm
have been duly authorized by Versaterm. This Agreement has been duly executed and delivered by
Versaterm and is a valid and binding obligation of Versaterm, enforceable in accordance with its
terms, (b) neither the entering into of this Agreement, nor the performance by Versaterm of any of its
obligations under this Agreement will contravene, breach, or result in any default under any
organizational documents of Versaterm or under any agreement to which Versaterm is a party or by
which Versaterm is otherwise bound and (c) Versaterm will use commercially reasonable efforts to
ensure that all Software delivered to Agency is, at the time of shipment, free of any known computer
software viruses.
11. Representations and Warranties of Agency.
11.1.
Agency represents, warrants, and covenants, as follows: (a) Agency has the corporate power
and the capacity to enter into, and to perform its obligations under this Agreement. This Agreement
and each of the agreements, contracts and instruments required by this Agreement to be delivered
by Agency have been duly authorized by Agency and (b) This Agreement has been duly executed and
delivered by the Agency and is a valid and binding obligation of the Agency, enforceable in
accordance with its terms; and neither the entering into of this Agreement, nor the performance by
Agency of any of its obligations under this Agreement will contravene, breach, or result in a default
under the articles, by-laws, constating documents or other organizational documents of Agency or
under an agreement to which the Agency is a party or by which Agency is otherwise bound.
12. Versaterm’s Indemnity
12.1.
Versaterm will defend at its own expense any claim, proceeding or suit (for purposes of this
Section 12, a "Claim") brought against Agency to the extent such Claim alleges that any Licensed
Materials infringes a proprietary right of a third-party which is enforceable within Canada or the
United States, and will indemnify and pay all damages finally awarded against Agency by courts of
competent jurisdiction on account of such infringement together with all reasonable costs and
expenses (including reasonable legal fees as determined by courts of competent jurisdiction)
incurred by Agency as a direct result of such Claim, provided Versaterm is given: (i) prompt written
notice, however, no later than ten (10) days, of the Claim; (ii) all reasonable information and
assistance which it may require to defend the Claim; (iii) sole control of the defense of the Claim,
and all negotiations for its settlement or compromise; and provided further: (iv) that the alleged
infringement does not result from any alterations, modifications or enhancements to the Software
or Documentation made by Agency or on its behalf by a third-party, or the use or operation of the
Licensed Materials in combination with other software, products, data, apparatus or equipment not
provided by Versaterm.
12.2.
Notwithstanding anything to the contrary in this Agreement, Versaterm shall not be
responsible for any cost, expense or compromise incurred or made by Agency in respect of a Claim
without Versaterm's express prior written consent.
12.3.
If any Claim has occurred, or in Versaterm’s opinion is likely to occur, Versaterm may, at its
option and expense: (a) procure for Agency the right to continue using the applicable Licensed
Materials, (b) replace or modify the same so that it becomes non-infringing without loss of material
functionality; or (c) if none of the foregoing alternatives is reasonably available, or available on
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commercially reasonable terms, at Versaterm’s discretion, discontinue the Service and use of the
Software and refund to Agency any pre-paid and unused portion of the Fees paid by Agency in
respect of use of the Software for the remainder of the then-current portion of the Subscription Term
or License Term.
12.4.
Notwithstanding the above, Versaterm shall have no obligation for any Claim based upon
Third Party Components, which are warranted solely by the individual Third-Party Supplier.
12.5.
This Section 12 states the entire obligations of Versaterm with respect to any infringement of
any Intellectual Property Rights of any third party.
13. Agency's Indemnity
13.1.
Unless prohibited by applicable law, Agency shall defend at its own expense any Claim
brought against Versaterm, its affiliates or any of their respective directors, officers, employees,
consultants, contractors or agents (each, a “Versaterm Indemnitee”), to the extent such Claim: (i)
alleges, directly or indirectly, that any Agency Data infringes any Canadian or U.S. Intellectual
Property Right of a third person; or (ii) is in relation to Agency's use of the Software, including contrary
to applicable law, except however to the extent Versaterm is obligated to indemnify Agency pursuant
to Section 13; provided that Agency is given: (a) prompt written notice of the Claim or of any
allegations or circumstances known to Versaterm which could result in a Claim, (b) all reasonable
information and assistance from Versaterm, at Agency's expense, which Agency may require to
defend the Claim; and (c) sole control of the defense of the Claim, and all negotiations for its
settlement or compromise thereof; provided that Versaterm’s express prior written consent shall be
required for any such settlement or compromise that (i) does not fully and irrevocably release all
Versaterm Indemnitees from any liability of any kind a full release with respect thereto, (ii) limits in
any manner Versaterm’s right to use, distribute or commercialize any Licensed Materials, or (iii) that
includes any admission of wrongdoing by or creates or is reasonably likely to create any reputational
harm to any Versaterm Indemnitee.
14. Exclusion of Other Warranties and Conditions
14.1.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT THE LICENSED MATERIALS, THIRD
PARTY COMPONENTS OR ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN "AS IS",
“WHERE-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. THE
REPRESENTATIONS AND WARRANTIES GIVEN BY VERSATERM IN SECTION 11 ARE IN LIEU OF ALL
OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, IN
RELATION TO ANY LICENSED MATERIALS, THIRD PARTY COMPONENTS OR SERVICES PROVIDED
UNDER THIS AGREEMENT INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT
AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR
USAGE OF TRADE. VERSATERM HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY
THIRD-PARTY COMPONENTS OR THE ACTS OR OMISSIONS (INCLUDING WITH RESPECT TO THE
PROVISION OF ANY SERVICES) OF ANY THIRD-PARTY SUPPLIER.
14.2.
AGENCY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE AND OPERATION OF
ANY SOFTWARE OR THIRD-PARTY COMPONENTS, AND THE RESULTS OBTAINED FROM SUCH USE
AND OPERATION, ARE AT THE SOLE AND EXCLUSIVE RISK OF AGENCY AND THAT VERSATERM
ASSUMES NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY RELIANCE UPON THE RESULTS
OBTAINED BY AGENCY OR ANY THIRD-PARTY.
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15. Exclusion of Indirect Damages.
15.1.
UNDER NO CIRCUMSTANCES WILL VERSATERM BE LIABLE FOR ANY OF THE FOLLOWING
UNDER THIS AGREEMENT FOR ANY REASON: (A) SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITH RESPECT TO
LOSS OF PROFITS, REVENUES, AGENCYS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF
OR DAMAGE TO DATA OR AGENCY RECORDS, REPUTATIONAL HARM, OPERATIONAL OR SERVICE
INTERRUPTIONS, BUSINESS INTERRUPTION, OR LACK OF AVAILABILITY OF AGENCY MATERIALS OR
FACILITIES, INCLUDING AGENCY'S COMPUTER RESOURCES, SOFTWARE AND ANY STORED DATA
(INCLUDING AGENCY DATA) OR RECORDS; OR (B) ANY THIRD-PARTY CLAIMS AGAINST AGENCY
FOR LOSSES OR DAMAGES (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13), IN EACH CASE,
EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR EVEN IF SAME WERE REASONABLY
FORESEEABLE.
16. Limitation of Direct Damages.
16.1.
THE TOTAL AGGREGATE LIABILITY OF VERSATERM UNDER THIS AGREEMENT IS LIMITED TO
THE AMOUNTAGENCY PAID VERSATERM FOR THE SERVICES USED BY THE AGENCY PURSUANT TO
WHICH SUCH LIABILITY AROSE OR IS ASSOCIATED DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION
SHALL NOT APPLY TO DAMAGES ARISING FROM VERSATERM’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
17. Term.
17.1.
This Agreement shall commence upon the Effective Date and shall end once the ACJC
Contract, has been terminated or expired.
17.2. Upon expiration this Agreement all rights to access and use or the license to use Licensed
Materials, as applicable.
17.3. The Parties agree that if the Agency is already using the Services under a different contract signed
between Agency and SPIDR Tech, Inc. or service schedule signed between Agency and Versaterm,
the applicable contract or service schedule shall be considered terminated as of the Effective Date
and the Services shall be governed by this Agreement.
17.4. Should Agency desire to continue using the Services following the expiration or termination of this
Agreement the Parties shall enter into a separate master software and services agreement and
service schedule or similar contract.
18. Termination.
18.1.
In addition to any other rights or remedies hereunder:
18.1.1. Subject to terms of the ACJC Contract, Versaterm reserves the right to terminate this
Agreement or parts of this Agreement for convenience by providing thirty (30) days written
notice to the Agency.
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18.1.2. Versaterm may terminate this Agreement at any time on giving Agency notice in writing if: (i)
Agency infringes any copyright or other Intellectual Property Right or other industrial or
proprietary right of Versaterm; (ii) in Versaterm’s reasonable judgment, Agency’s use of the
Software poses a security risk to the Software or any third party; (iii) ; or (iii) Agency fails to
observe or perform any other material obligation or covenant required to be observed or
performed by it under this Agreement, , and solely in the case of (iii) above, such failure
continues for a period of thirty (30) days after delivery of written notice by Versaterm to Agency
requiring Agency to cure such failure.
18.2.
This Agreement shall be terminated should there be a material reduction in or cancellation of
public funding.
18.3.
This Agreement shall automatically terminate upon the expiration or termination of the ACJC
Contract.
18.4.
Subject to applicable law, Agency may terminate this Agreement immediately upon giving
written notice to Versaterm if Versaterm: (i) makes any general assignment for the benefit of
creditors or otherwise enters into any composition or arrangement with its creditors; (ii) is unable to
pay its debts as they mature; (iii) has a receiver and/or manager appointed over its assets or an
application is made to do so; (iv) becomes bankrupt or insolvent or commits an act of bankruptcy or
(v) Versaterm fails to observe or perform any other material obligation or covenant required to be
observed or performed by it under this Agreement and solely in the case of (v) above, such failure
continues for a period of thirty (30) days after delivery of written notice by Versaterm to Agency
requiring Agency to cure such failure.
19. Orderly Termination
19.1.
Upon termination of termination or expiration of this Agreement or termination or expiration
of ACJC Contract, whichever occurs first, Agency shall: (a) immediately discontinue use of the
Licensed Materials; (b) ensure that all Persons using the Licensed Materials pursuant to this
Agreement cease all use thereof; (c) promptly (and in any event within five (5) days) return to
Versaterm all copies of the Licensed Materials in its (or any Authorized Users’ or other Persons’ to
whom it provided access to any Licensed Materials) possession or control; (d) permanently erase all
Licensed Materials, in whole or in part, from all computer systems, storage devices and other
electronic recording systems in Agency’s possession or control and cause each Authorized User and
each other Person to whom it provided access to any Licensed Materials to do the same; deliver
within thirty (30) calendar days of such termination or expiration a certificate certifying that Agency
and all such Persons to whom Agency has provided access to any Licensed Materials have complied
with the terms of this Section 19, as applicable; and (e) pay Versaterm the full amount of any charges
outstanding, including for any Professional Services performed, as of the date of termination, if any,
whether invoiced or not (including any amounts due as late payment charges), and all other monies
owing to Versaterm
20. Suspension
20.1.
If Agency has materially violated the Agreement including failure to pay any Fees (if
applicable) or any portion thereof when due (other than invoiced amounts disputed in good faith
pursuant to Section 8(f)), Versaterm may immediately suspend Agency's and each of its Authorized
Users' right to access or use any Licensed Materials (including access to the Versaterm Platform) or
receive any Services.
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21. Notices.
21.1.
All notices, requests, demands and other communications under this MSA shall be in writing
and shall only be duly given
a)
on the date of sending if sent by email to the email address indicated in Section 21(b); or
b)
on the third business day after posting if sent, during normal postal conditions, by registered or
certified mail to the Party for which it is intended and addressed as follows:
To Versaterm at:
Versaterm Public Safety U.S. Inc.
1 North MacDonald, Suite 500
Mesa, Arizona, USA
85201
E-mail: legal@versaterm.com
With copy to:
Versaterm Public Safety Inc.
1331 Clyde Avenue, Suite 400
Ottawa, Ontario, Canada
K2C 3G4
To Customer at:
Maricopa County Sheriff’s
Office 550 West Jackson Street
Phoenix, Arizona, USA
85003
Attention: Jon Fedenheim, CIO
Attention: Legal Department
E-mail:
jonfendenheim@mcso.maricopa.gov
22. Miscellaneous.
22.1.
Any waiver of, or consent to depart from, the requirements of any provision of this Agreement
or SOW shall be effective only if it is in writing and signed by the Party giving it, and only in the specific
instance and for the specific purpose for which it has been given. No failure on the part of any Party
to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of
such right. No single or partial exercise of any such right shall preclude any other or further exercise
of such right or the exercise of any other right. No amendment or variation to this Agreement shall be
effective unless signed in writing by both Parties.
22.2.
This Agreement is between separate legal entities and neither Party is the agent, employee,
or partner of the other for any purpose whatsoever. The Parties do not intend to create a partnership
or joint venture between themselves. Neither Party shall have the right to bind the other to any with
a third-party or to incur any obligation or liability on behalf of the other Party.
22.3.
Agency may not assign any rights or benefits under this Agreement (including any SOWs), in
whole or in part, to any Person without the express prior written consent of Versaterm. Versaterm
may assign its rights and benefits under this this Agreement to any Person by providing written notice
to the Agency and may contract with any other Person to perform its obligations under this
Agreement without obtaining Agency's consent to any such contract. Notwithstanding the
foregoing, Versaterm may assign its rights and benefits under this Agreement à to any Person without
providing written notice to the Agency if such assignment is due to a corporate restructure, merger,
or acquisition.
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22.4.
Except as expressly provided otherwise in a SOW dates and times by which Versaterm or
Agency is required to render performance (other than dates and times for payment of money) under
a SOW shall be postponed automatically to the extent and for the period of time that Versaterm or
Agency, as the case may be, is prevented from meeting them by reason of any causes beyond its
reasonable control, provided the Party prevented from rendering performance notifies the other
Party promptly and in detail of the commencement and nature of such a cause, and provided further
that such Party uses its commercially reasonable efforts to render performance in a timely manner
utilizing to such end all resources reasonably required in the circumstances, including obtaining
supplies or services from other sources if same are reasonably available.
22.5.
If any provision of this Agreement or SOW is determined to be invalid or unenforceable by a
court of competent jurisdiction from which no further appeal lies or is taken, that provision shall be
deemed to be severed here from, and the remaining provisions of this Agreement or SOW shall not
be affected thereby and shall remain valid and enforceable.
22.6.
All obligations accrued to the date of termination as well as the Sections of this Agreement
listed below shall survive the termination of this Agreement made pursuant to this Agreement for as
long as necessary to permit their full discharge: 1, 3, 4.2, 7-9, 12-16, 19, and 21-22.
22.7.
Section headings used in this Agreement are for convenience of reference only and shall not
be construed as defining, limiting, or describing the scope or intent of this Agreement.
22.8.
This Agreement and (if applicable) SOW made pursuant to this Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
22.9.
Prior to the commencement of any legal proceeding under this Agreement all claims must be
raised for good faith discussion between authorized representatives of both Parties with authority to
resolve the dispute. Should the claims not be resolved within thirty (30) days of the date of the first
request such discussion, each Party shall be free to pursue its legal remedies pursuant to the terms
of this Agreement.
22.10.
None of this Agreement, or SOW shall be changed or amended except in writing by an
amendment executed by authorized representatives of each Party.
22.11.
The laws of the State of Arizona shall be applicable to the interpretation of this Agreement
without regard to the conflicts of law principles thereof. The Uniform Computer Information
Transactions Act and the United Nations Convention on Contracts for the International Sale of
Goods shall not apply.
22.12.
This Agreement, along with the SOW agreed to by the Agency in accordance with this Agreement
or signed by the Agency, constitute the entire agreement between Versaterm and Agency regarding
Agency’s use of the Services. All prior agreements, negotiations, undertakings, and discussions,
whether oral or written, are superseded by this Agreement and there are no warranties,
representations, or covenants between the Parties in connection with this Agreement, except as
specifically set forth or referred to in this Agreement.
22.13.
The Parties agrees that in the event of a conflict or inconsistency between the terms of this
Agreement and or other documents, the order of precedence shall be the following: (1) this
Agreement and (2) Acknowledgement.
22.14.
The Parties agree that any terms or conditions set forth in a purchase order, acknowledgement
or any other document or response issued by the Agency shall not apply to this Agreement shall be
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deemed automatically rejected by Versaterm without need of any further or additional notice of
rejection and void and of no effect.
22.15.
Versaterm may reference the existence of this Agreement and the business relationship
between the Parties for the purposes of: (a) issuing press releases to announce the beginning or
continuation, as applicable, of the business relationship between the Parties; or (b) referencing
Agency as a customer of Versaterm including in Versaterm’s customer list and other marketing
materials.
22.16.
In the event of a Force Majeure Event, nonperformance or delay shall not be deemed to be a
default hereunder. The Party declaring a Force Majeure Event shall continue to meet its security and
confidentiality obligations and shall make all reasonable efforts to continue to meet all its
obligations throughout the duration of the Force Majeure Event. The Party declaring a Force Majeure
Event shall notify the other party promptly when the Force Majeure Event begins. This provision shall
not limit the Parties’ rights under any similarly applicable state law.
22.17.
Agency acknowledges details of the service level agreement can be found in the contract
established withing the ACJC Contract. Support requests can be raised via email
(support@spidrtech.com) or phone (877-746-8276).
22.18.
FORCED LABOR. The Contractor agrees to comply with all applicable portions of Arizona
Revised Statutes Section 35-394. Contracting; procurement; prohibition; written certification;
remedy; termination; exception; definitions. The Contractor certifies that it does not currently, and
agrees for the duration of the contract, that it will not use:
22.18.1.
The forced labor of ethnic Uyghurs in the People’s Republic of China.
22.18.2.
Any goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
22.18.3.
Any contractors, subcontractors or suppliers that use the forced labor or
any good or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
If the Contractor becomes aware during the term of the agreement that contractor is not in
compliance with this paragraph, the contractor shall notify the County within five business days
after becoming aware of the noncompliance. If the Contractor fails to provide a written
certification to the County that the contractor has remedied the noncompliance within 180 days
after notifying the County of its noncompliance, then the agreement terminates, except that if the
agreement termination date occurs before the end the 180-day period, the agreement terminates
on the agreement termination date.
22.19.
STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST. Notice is given that,
pursuant to A.R.S. § 38-511, the County may cancel any contract without penalty or further
obligation within three years after execution of the contract, if any person significantly involved in
initiating, negotiating, securing, drafting, or creating the contract on behalf of the County is at any
time, while the contract or any extension of the contract is in effect, an employee or agent of any
other party to the contract in any capacity or consultant to any other party of the contract with
respect to the subject matter of the contract. Additionally, pursuant to A.R.S. § 38-511, the County
may recoup any fee or commission paid or due to any person significantly involved in initiating,
negotiating, securing, drafting, or creating the contract on behalf of the County from any other party
to the contract arising as the result of the contract.
22.20.
VERIFICATION REGARDING COMPLIANCE WITH A.R.S. § 41-4401 AND FEDERAL
IMMIGRATION LAWS AND REGULATIONS. By entering the contract, the Contractor warrants
compliance with the Immigration and Nationality Act (INA using E-Verify) and all other Federal
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immigration laws and regulations related to the immigration status of its employees and A.R.S. §
23-214(A). The Contractor shall obtain statements from its subcontractors certifying compliance
and shall furnish the statements to the procurement officer upon request. These warranties shall
remain in effect through the term of the contract. The Contractor and its subcontractors shall also
maintain Employment Eligibility Verification forms (I-9) as required by the Immigration Reform and
Control Act of 1986, as amended from time to time, for all employees performing work under the
contract and verify employee compliance using the E-Verify system and shall keep a record of the
verification for the duration of the employee’s employment or at least three years, whichever is
longer. I-9 forms are available for download at www.uscis.gov. The County retains the legal right to
inspect documents of Contractor and subcontractor employees performing work under this
contract to verify compliance. Contractor and subcontractor shall be given reasonable notice of
the County’s intent to inspect and shall make the documents available at the time and date
specified. Should the County suspect or find that the Contractor or any of its subcontractors are
not in compliance, the County will consider this a material breach of the contract and may pursue
any and all remedies allowed by law, including, but not limited to: suspension of work, termination
of the contract for default, and suspension and/or debarment of the Contractor. All costs
necessary to verify compliance are the responsibility of the Contractor.
22.21.
NON-DISCRIMINATION. The Contractor agrees to comply with all provisions and
requirements of Arizona Executive Order 2009 09, including flow down of all provisions and
requirements to any subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4
and amends Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full
herein. During the performance of this contract, contractor shall not discriminate against any
employee, client, or any other individual in any way because of that person’s age, race, creed,
color, religion, sex, disability, or national origin. (Arizona Executive Order 2009-09 can be viewed at
https://apps.azsos.gov/public_services/register/2009/46/governor.pdf)
IN WITNESS WHEREOF this Agreement has been executed by the Parties as of the Effective Date.
Maricopa County Sheriff’s Office
_________________________
Sheriff
Date:
Agreed to on behalf of:
Versaterm Public Safety US, Inc.
_________________________
Adam Schwartz
Chief Revenue Officer
Date:
Agreed to on behalf of:
Maricopa County Sheriff’s Office
Maricopa County Board of Supervisors
____________________________________
Chairman
Date
ATTEST:
____________________________________
Clerk of the Board
Date
APPROVED AS TO FORM:
_____________________________________
Deputy County Attorney
Date
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