AGREEMENT NO. ___________________
INDEPENDENT CONTRACTOR'S AGREEMENT
[Over $100,000]
This INDEPENDENT CONTRACTOR’S AGREEMENT (“Agreement”) is made and entered into on __________________, by and between the CITY OF BAKERSFIELD, a municipal corporation (referred to herein as “CITY”), and MAGNET FORENSICS, LLC a limited liability company authorized to do business in California (referred to herein as “PROVIDER”).
R E C I T A L S
WHEREAS, on May 22, 2019, CITY entered into Agreement No. 19 -075 with PROVIDER for the purchase of PROVIDER’s GrayKey unit & license subscription , a forensic tool used to assist with data extraction from Apple products in active investigations, CITY has been satisfied with the product and has continued to renew its subscription in the years since, most recently via Agreement No. 2024 - 254(1); and
WHEREAS, on January 2, 2026, CITY entered into Agreement No. TS26 -002 with PROVIDER for the one (1) year subscription to PROVIDER’s Magnet AXIOM Essentials Bundle software, an examination tool used to examine digital evidence from mobile, cloud, computer and vehicle sources alongside third -party extractions; and
WHEREAS, the Bakersfield Police Department desires to merge all software subscriptions into one single agreement for a one (1) year term, while also subscribing to more of PROVIDER’s software’s per Quote No. Q-448792 attached hereto as Exhibit A and Magnet Forensics End User License Agreement attached hereto as Exhibit B; and
WHEREAS, PROVIDER represents that PROVIDER is experienced, well qualified and a specialist in the field of digital investigation solutions.
NOW, THEREFORE, incorporating the foregoing recitals herein, CITY and PROVIDER mutually agree as follows:
1. SCOPE OF WORK . In exchange for the Compensation (defined below), PROVIDER shall perform the followin g: provide a one (1) year subscription to Providers AXIOM Premier Bundle Software and License, Magnet Griffeye Processing Engine Machine License , Magnet AUTOMATE Bundle and Implementation Package, Graykey Premier Bundle Software and License, Magnet Autokey License and Hardware, FasTrak Unlimited Software , and Witness Term License (“Scope of Work”). The Scope of Work shall be subject Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55
to the terms and conditions set forth in Exhibits A and B, attached hereto.
The Scope of Work shall include all items and procedures necessary to properly complete the task PROVIDER has been hired to perform, whether specifically included in the Scope of Work or not.
2. COMPENSATION/PAYMENT PROCEDURE . Subject to the conditions of this section, CITY will pay PROVIDER as follows for performing the Scope of Work (“Compensation”):
A total, lump sum payment of $ 179,755.97 after the Scope of Work is completed to CITY’s satisfaction as shown in Exhibit A.
CITY will pay PROVIDER within thirty (30) days after PROVIDER submits an itemized invoice for the portions of the Scope of Work completed and that invoice is approved by CITY. The Compensation will be the total amount paid to PROVIDER for performing the Scope of Work and includes, but is not limited to, all out -of-pocket costs and taxes. CITY will pay no other compensation to PROVIDER. In no case will CITY compensate PROVIDER more than $195,000.00 for performing the Scope of Work.
3. TERM. Unless terminated sooner, as set forth herein, this Agreement shall terminate on August 14, 2027.
4. TERMINATION. Either party may terminate t his Agreement after giving the other party written notice, as provided herein, ten (10) days before the termination is effective.
5. ACCOUNTING RECORDS . PROVIDER shall maintain accurate accounting records and other written documentation pertaining to all costs incurred in performance of this Agreement. Such records and documentation shall be kept at PROVIDER's office during the term of this Agreement, and for a period of three (3) years from the date of the final payment hereunder, and made available to CITY representatives upon request at any time during regular business hours.
6. ASSIGNMENT. Neither this Agreement nor any rights, interests, duties, liabilities, obligations or responsibilities arising out of, concerning or related in any way to this Agreement (including, but not limited to, accounts, actions, causes of action, claims, damages, demands, liabilities, losses, obligations, or reckonings of any kind or nature whatsoever, for compensatory or exemplary and punitive damages, or declaratory, equitable or injunctive relief, whether based on contract, equity, tort or other theories of reco very provided for by the common or statutory law) may be assigned or transferred by any party. Any such assignment is Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55
prohibited, and shall be unenforceable and otherwise null and void without the need for further action by the non-assigning party or parties.
7. BINDING EFFECT. The rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the parties to the Agreement and their heirs, administrators, executors, personal representatives, successors and assigns.
8. COMPLIANCE WITH ALL LAWS . PROVIDER shall, at PROVIDER’s sole cost, comply with all of the requirements of municipal, state, and federal authorities now in force, or which may hereafter be in force, pertaining to this Agreement, and shall faithfully observe in all activities relating to or growing out of this Agreement all municipal ordinances and state and federal statutes, rules or regulations, and permitting requirements now in force or which may hereafter be in force including, without limitation, obtaining a City of Bakersfield business tax certificate (Bakersfield Municipal Code Chapter 5.02) where required.
9. CORPORATE AUTHORITY. Each individual signing this Agreement on behalf of entities represent s and warrant s that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
10. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such.
11. DIRECTION. PROVIDER retains the right to control or direct the manner in which the services described herein are performed.
12. EQUIPMENT. PROVIDER will supply all equipment, tools, materials and supplies necessary to perform the services under this Agreement.
13. EXECUTION. This Agreement is effective upon the date first written above and is the product of negotiation and all parties are equally responsible for authorship of this Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of this Agreement.
14. EXHIBITS. In the event of a conflict between the terms, conditions or specifications set forth in this Agreement and those in exhibits attached hereto, the terms, conditions, or specifications set forth in this Agreement shall prevail. All exhibits to which referen ce is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached.
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15. FURTHER ASSURANCES. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of this Agreement and the intent of the parties to this Agreement.
16. GOVERNING LAW. The laws of the State of California will govern the validity of this Agreement and its interpretation and performance. Any litigation arising in any way from this Agreement shall be brought in Kern County, California.
17. INCLUDED DOCUMENTS. Any bid documents, including, without limitation, special provisions and standard specifications and any Request for Proposals, Request for Qualifications and responses thereto relating to this Agreement are incorporated by reference as though fully set forth herein.
18. INDEMNITY. [RESERVED]
19. INDEPENDENT CONTRACTOR . This Agreement calls for PROVIDER’s performance of the Scope of Work as an independent contractor.
PROVIDER is not an agent or employee of CITY for any purpose and is not entitled to any of the benefits provided by CITY to its employees. This Agreement shall not be construed as forming a partnership or any other association with PROVIDER other than that of an independent contractor.
20. INSURANCE. [RESERVED]
21. INTERPRETATION. Whenever the context so requires, the masculine gender includes the feminine and neuter, and the singular number includes the plural.
22. KEY PERSONNEL. At request of CITY, PROVIDER shall name all key personnel to be assigned to the work set forth herein. CITY reserves the right to approve key personnel, which approval shall not be unreasonably withheld. Once the key personnel are approved PROVIDER shall not change such personnel without the approval of CITY.
23. LICENSES. PROVIDER shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits and approvals which are legally required for PROVIDER to practice its profession and perform the Scope of Work. If PROVIDER is a corporation, at least one (1) officer or key employee shall hold the required licenses or professional degrees. If PROVIDER is a partnership, at least one (1) partner shall hold the required licensees or professional degrees.
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24. MERGER AND MODIFICATION . This Agreement sets forth the entire agreement between the parties and supersedes all other oral or written representations. This Agreement may be modified only in a writing approved by the City Council and signed by all the parties.
25. NO WAIVER OF DEFAULT. The failure of any party to enforce against another party any provision of this Agreement shall not constitute a waiver of that party's right to enforce such a provision at a later time and shall not serve to vary the terms of this Agreement.
26. NON-INTEREST. No CITY officer or employee shall hold any interest in this Agreement (California Government Code section 1090).
27. NOTICES. All notices relative to this Agreement shall be given in writing and shall be personally served or sent by certified or registered mail and be effective upon actual personal service or depositing in the United States mail. The parties shall be addressed a s follows, or at any other address designated by notice:
CITY: CITY OF BAKERSFIELD
CITY HALL
1600 Truxtun Avenue
Bakersfield, California 93301
PROVIDER: MAGNET FORENSICS, LLC
931 Monroe Drive NE
Suite A102-340
Atlanta, GA, 93308
28. RESOURCE ALLOCATION. All CITY obligations under the terms of this Agreement are subject to the appropriation and allocation of resources by the City Council.
29. SB 854 COMPLIANCE . To the extent Labor Code Section 1771.1 applies to this Agreement, a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, be subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Labor Code Section 1725.5. It is not a violation of Labor Code Section 1771.1 for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provide d the contractor is registered to perform Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55
public work pursuant to Labor Code Section 1725.5 at the time the contract is awarded. The prime contractor is required to post job site notices in compliance with California Code of Regulations, Title 8, Section 16451. This project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.
30. STANDARD OF PERFORMANCE . The Scope of Work shall be performed in conformity with all legal requirements and industry standards observed by a specialist of PROVIDER’s profession in California.
31. STARTING WORK. PROVIDER shall not begin work until authorized to do so in writing by CITY. No work will be authorized before the date first written above.
32. TAX NUMBERS.
PROVIDER’s Federal Tax ID Number 81-3806753 PROVIDER is a corporation? Yes X No
(Please check one.)
33. THIRD-PARTY CLAIMS. In the case of public works contracts, CITY will timely notify PROVIDER of third-party claims relating to this Agreement. CITY shall be allowed to recover from PROVIDER, and PROVIDER shall pay on demand, all costs of notification.
34. TITLE TO DOCUMENTS. [RESERVED]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
[ REMAINING SIGNATURES ON FOLLOWING PAGE ]
"CITY" “PROVIDER”
CITY OF BAKERSFIELD MAGNET FORENSICS, LLC
By:________________________________ By:_________________________________ KAREN GOH Print Name:
Mayor Title:
Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55 Peter Vreeswyk
CFO
APPROVED AS TO CONTENT:
TECHNOLOGY SERVICES DEPARTMENT
By:_______________________________
GREGORY PRONOVOST
Technology Services Director
APPROVED AS TO FORM: COUNTERSIGNED:
(Deputy) City Attorney:_______________________ Finance Director: _____________________
ASHLEY ZAMBRANO RANDY MCKEEGAN
Attachment(s): Exhibit A: Magnet Forensics Quote No. Q-448792 Exhibit B: Magnet Forensics End User License Agreement
Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55
Quotation
Quote #: Q-448792
Issue Date: 31-Jul-26
Expires On: 31-Aug-26
Bill To End User
Buffie Kaiser Alex Patino Alex Patino
Bakersfield Police Department (CA) Bakersfield Police Department (CA) Bakersfield Police Department (CA) 1501 Truxtun Ave, 1st Fl 1501 Truxtun Ave, 1st Fl 1501 Truxtun Ave, 1st Fl Bakersfield, California, 93301 Bakersfield, California, 93301 Bakersfield, California, 93301 United States United States United States
(661)-326-3553 (661)-326-3862 (661)-326-3862
[email protected] [email protected] [email protected]
SALESPERSON
Joshua Salas
PRODUCT CODE SMS DATE UNIT PRICE
(USD) QTY
GKL-ONF-PR-B 8/15/2026 - 11/4/2026 -$12,804.11 1
6AX110 8/15/2026 - 1/5/2027 -$1,818.47 3
WTS60 8/15/2026 - 8/14/2027 $2,590.24 1
6AX310 8/15/2026 - 8/14/2027 $8,954.75 3
AUBAPUB - $0.00
6AU01 8/15/2026 - 8/14/2027 $25,036.75 1
6AU02 8/15/2026 - 8/14/2027 $3,757.00 3
GRAS-01701 8/15/2026 - 8/14/2027 $0.00 3
PSAUIO - $8,393.75 1
GKL-ONF-PR-AKB 8/15/2026 - 8/14/2027 $61,395.00 1
AK-ONL-ESS 8/15/2026 - 8/14/2027 $3,000.00 1
AK-SH - $75.00 1
FT-PR 8/15/2026 - 8/14/2027 $59,389.50 1
GKL-GKP 8/15/2026 - 8/14/2027 $0.00 1
USD $179,755.97
USD $0.00
USD $179,755.97
Terms & Conditions
Signature _____/_____/_____
Name (Print):
Check if Tax Exempt
Ship To
Sub-Total
Taxes
Grand Total
N30
PHONE
EXTENDED PRICE (USD)
-$12,804.11
-$5,455.41
$2,590.24
$26,864.25
$0.00
THANK YOU FOR YOUR BUSINESS!
PAYMENT TERMSEMAIL
[email protected]
PRODUCT
GrayKey License - Premier Bundle
Magnet AXIOM Essentials
Magnet AUTOMATE Advanced Public Bundle
Magnet AUTOMATE Advanced - Controller
Please sign and email to <enter rep's email address>
Effective Date:
Title:
Unless you have an existing written agreement with Magnet Forensics for the software and related services listed in this quotation, by: (a) signing below, (b) submitting an Order to Magnet Forensics referencing this quotation, or (c) making payment for the software and related services listed in this quotation, you agree to the terms and conditions at magnetforensics.com/legal/ applicable to the software and related services listed in this quotation.
Witness Term License
Prices subject to change upon quote expiry. Accurate sales tax will be calculated at the time of invoicing when applicable. If your company is tax exempt, please provide appropriate support with your signed quote.
$25,036.75
Magnet AUTOMATE Advanced - Node $11,271.00
Magnet Griffeye Processing Engine Machine License $0.00 Magnet AUTOMATE Implementation Package - Onsite $8,393.75 GrayKey License - Premier Bundle w/ AutoKey $61,395.00
Magnet AutoKey Licnese $3,000.00
AutoKey Hardware (Shipping) $75.00
FasTrak Unlimited $59,389.50
GrayKey License - Preserve $0.00
Magnet AXIOM Premier
Address:
Magnet Forensics LLC
931 Monroe Drive NE
Suite A102-340
Atlanta, GA, 30308
United States
EXHIBIT A
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LICENSE AGREEMENT
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This End User License Agreement (the “ Agreement”) is a legal agreement between You and Magnet Forensics respecting Your use of the accompanying Software and is effective as of the date of last signature (the “Effective Date”).
1 Definitions
1.1 “Confidential Information” means any information regardless of form or medium, whether tangible or intangible, including any copies or fixations made thereof that is disclosed by discloser, or to which the recipient is provided access by discloser, that is proprietary or confidential to discloser or its affiliated companies, including, without limitation, information that specifies, concerns or is related to discloser’s intellectual property, Software, Documentation, Product, trade secrets, business operations, finances, customers, technical know -how, prototypes, designs, processes, products, services, or the development, testing or commercial exploitation of any of the foregoing that is either specifically identified as confidential prior to or at the time of its disclosure or that would reasonably be considered by a person knowledgeable in the industry to be proprietary or confidential in nature because of legends or other markings on the information, the circumstances of disc losure or the nature of the information itself. Confidential Information includes, without limitation, (i) information concerning the methods of use, internal components, features, functions and solutions of Graykey and Verakey Products, information found on the Magnet Forensics support website, and (ii) any copies, photographs, or other reproductions of the foregoing, whether or not marked as “confidential” or “proprietary.”
1.2 “Documentation” means the electronic, printed or other form of documents that accompany delivery of the Product that provides information about installation, operation, and use of the Product. For Professional Services, this includes any specifications or other materials prepared by Magnet Forensics in connection with the delivery of Professional Services, including the Professional Services Engagement Guide and Solution Architecture Document.
1.3 “Hardware” means the physical components, devices, or equipment provided to you by Magnet Forensics used for the operation of the Software.
1.4 “License Term” means the time period identified in Your Quotation or if no such period is identified in Your Quotation then for one (1) year commencing on the date the Software is available to You.
1.5 “Magnet Forensics” has the meaning set out in Section 12.1.
1.6 “Magnet Software” means the proprietary software of Magnet Forensics.
1.7 “Perpetual License” means a license purchased with a perpetual License Term as identified in a Quotation.
1.8 “Product” means the Magnet Forensics supplied products identified in the Quotation, which may include, Hardware, Software, Professional Services, and Support Services.
1.9 “Professional Services” means the Consulting Services and Implementation Services provided by Magnet Forensics to You in connection with the Products.
1.10 “Quotation” means the quotation provided to You by Magnet Forensics or a Magnet Forensics authorised reseller outlining the terms, conditions, and pricing details for the licensing of Magnet Hardware, Software, and Support Services.
1.11 “Software” means the Magnet Software and Third Party Software.
1.12 “Support Services ” means the support services included in the Term License or separately purchased as part of the Perpetual License as indicated on Your Quotation and, in each case, described further in Section 4.1.
EXHIBIT B
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LICENSE AGREEMENT
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1.13 “Term License” means a license purchased with a non-perpetual License Term as identified in a Quotation.
1.14 “Third Party Software” means the copyrighted, patented or otherwise legally protected software of third parties (including open-source code components) incorporated into the Software.
1.15 “User” means a single user who uses the Software as permitted by this Agreement or is otherwise provided access to the Software by You.
1.16 “You”, and “ Your” means the entity that purchases the license for Software pursuant to this Agreement.
2 License Grant
2.1 License. The licensed rights to the Software granted to You by Magnet Forensics are as set out in Schedule A (Licensed Rights), Schedule B, and Schedule C to this Agreement, as applicable. 3 Fees, Taxes, and Delivery
3.1 Fees. You agree to pay Magnet Forensics all applicable fees identified in the Quotation within thirty (30) days from date of the invoice. Magnet Forensics shall invoice You upon the earlier of: (a) You issuing a purchase order to Magnet Forensics that relates to the Quotation ; (b) Your signing the Quotation; and (c) Your written indication, by email or otherwise, of Your approval of the Quotation.
If You fail to pay any amount under this Agreement that is due and payable, and such failure remains unremedied for a period of thirty (30) days following written notice of default by Magnet Forensics, in addition to any other rights and remedies available to Magnet Forensics, Magnet Forensics shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law.
3.2 Taxes. You are responsible for all taxes relating to Software and services identified in a Quotation (excluding any taxes based on the income of Magnet Forensics ). Unless otherwise indicated, all amounts payable by You under this Agreement are exclusive of any tax, duty, levy, or similar government charge. If You are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to Magnet Forensics shall equal the amount invoiced or otherwise due.
3.3 Delivery. Software will be provided by electronic means. Title and risk of loss to tangible products such as Hardware pass to you upon delivery , which occurs when Magnet Forensics places them with a carrier for shipment to you, freight prepaid.
4 Support Services
4.1 Support Services. Details of support packages can be found at www.magnetforensics.com/legal/.
4.2 Magnet Forensics does not require Your personal data to provide Support Services. If, however, as part of an incident resolution, You wish to provide Magnet Forensics with Your data or information (i.e. video footage, screen shots, case file data), You are solely responsible and liable in connection with the provision of such data to Magnet Forensics, including, without limitation, ensuring that the collection, processing and transfer of such data is in compliance with all applicable laws . Any data You choose to provide to Magnet Forensics in connection with the licensing and/or support of the Software shall be processed and store d in accordance with the confidentiality provisions of this Agreement and the Magnet Forensics Privacy Policy available at https://www.magnetforensics.com/legal/.
EXHIBIT B
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LICENSE AGREEMENT
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5 Intellectual Property Rights
5.1 License Only. Except for the limited license set forth herein, You do not acquire any intellectual property rights to the Product or Documentation under this Agreement, including, without limitation, any right, title or interest in and to patents, copyrights, trademarks, trade names, industrial designs, Magnet Forensics Confidential Information, or trade secrets, whether registered or unregistered.
The Software is licensed and not sold. Any rights not expressly granted under this Agreement are reserved by Magnet Forensics.
5.2 Feedback. Magnet Forensics shall own all feedback, comments, suggestions, ideas, and concepts that You provide or identify during Your use of the Product and Support Services, and all associated intellectual property rights (collectively the “Feedback”). You hereby assign to Magnet Forensics all of Your right, title and interest in Your Feedback. For certainty, Feedback shall not include any of Your data, Confidential Information, or intellectual property. 6 Confidentiality
6.1 Maintenance of Confidential Information. Subject to applicable law, e ach party agrees to: (a) keep confidential all Confidential Information disclosed by the other party ; (b) only use , reproduce and disclose the Confidential Information to facilitate the use of the Software (in Your case) or support and develop the Software (in Magnet Forensics’ case); and (c) protect the Confidential Information from unauthorized use, reproduction or disclosure in the same manner it protects the confidentiality of similar information of its own, but not less than a reasonable degree of care.
6.2 A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided that You promptly notif y Magnet Forensics in writing, if notification is permitted by law, and use commercially reasonable efforts to assist Magnet Forensics, at Magnet Forensics’ expense, in opposing such disclosure or obtaining a protective order or other reliable assurance preventing or limiting such disclosure and/or ensuring that confidential treatment will be accorded to any Confidential Information that is disclosed. Such disclosure does not remove the Confidential Information so disclosed from the protection of this Agreement. No further disclosure beyond the scope of such order is allowed.
7 Warranties, Exclusions, Disclaimer
7.1 Software Warranty. While Your Support Services are active, Magnet Forensics warrants that the Software shall materially conform to the Documentation. If the Software does not materially conform to the Documentation, and you give Magnet Forensics notice while Your Support Services are active, Magnet Forensics will, at its option, attempt to correct, repair, or replace the Software at no additional cost to You. If Magnet Forensics is unable to correct the Software to conform with the warranty stated herein within thirty (30) days , then upon Your request , Magnet Forensics shall , as your sole and exclusive remedy, refund You : (a) a prorated amount of any unused prepaid license fees if You purchased a Term License; or (b) a prorated amount of any unused prepaid Support Services fees if You purchased a Perpetual License.
7.2 Viruses, Licenses, Support Services. Magnet Forensics (a) has implemented testing practices consistent with industry standards designed to protect against viruses that may impede the Software; (b) includes fully paid-up licenses to any and all Third Party Software incorporated into the Software; and (c) will perform all Support Services in a good and workmanlike manner consistent with industry standards.
EXHIBIT B
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7.3 EXCLUSIONS. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE EXCLUSIVE
WARRANTIES MADE BY MAGNET FORENSICS TO YOU REGARDING THE PRODUCT, AND
YOUR SOLE AND EXCLUSIVE REMEDY RESPECTING ANY DEFECTS, NON -CONFORMITIES OR PROBLEMS WITH THE PRODUCT. EXCEPT AS SET FORTH IN SECTION 7.1 AND 7.2,
MAGNET FORENSICS DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND
CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, MERCHANTABLE QUALITY, PERFORMANCE, FITNESS FOR A
PARTICULAR PURPOSE, DURABILITY, ACCURACY, RELIABILITY, NON -INFRINGEMENT, OR
ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE PRODUCT PROVIDED HEREUNDER. To the maximum extent permitted by law, any implied warranties or conditions relating to the Software that cannot be excluded as set out above are limited to thirty (30) days from the date that the Software is delivered to You.
8 Limitation of Liability
8.1 NOTWITHSTANDING ANY OTHER SECTION OF THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY WHETHER IN AN ACTION IN CONTRACT, TORT,
PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY, OR OTHERWISE ARISING
FROM OR RELATED TO THIS AGREEMENT OR ANY ORDER FOR (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES; (B) LOSS OF
PROFITS OR REVENUE (OTHER THAN IN AN ACTION BY MAGNET FORENSICS TO RECOVER PAYMENT OF A PRICE OWED ); OR (C) LOSS OF TIME, OPPORTUNITY OR ANY DAMAGES
RELATING TO THE CORRUPTION OF DATA, LOSS OF THE USE OF DEVICES OR ANY PORTION
THEREOF, AND DAMAGES CAUSED BY YOUR FILES, CONNECTED DEVICES, OR DATA
COLLECTED BY YOU, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT (OTHER THAN IN AN ACTION BY MAGNET FORENSICS
TO RECOVER PAYMENT OF A PRICE OWED) WILL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES.
8.2 SECTION 8 .1 SHALL NOT APPLY TO EITHER PARTY’S LIABILITY IN RELATION TO: (A) INDEMNIFICATION OBLIGATIONS OF EITHER PARTY UNDER SECTION 9 (INDEMNIFICATION) UNDER THIS AGREEMENT; (B) MISAPPROPRIATION OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; AND ( C) YOUR PAYMENT OBLIGATIONS TO MAGNET FORENSICS, PROVIDED, HOWEVER, THAT MAGNET FORENSICS’ CUMULATIVE LIABILITY UNDER SECTION 9.2 RELATING TO THIRD PARTY SOFTWARE SHALL IN NO EVENT EXCEED THE LESSER OF: THREE TIMES (3X) THE AMOUNT PAID BY YOU FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH DAM AGES AND ONE MILLION USD ($1,000,000.00 USD).
9 Indemnification
9.1 Your Indemnification of Magnet Forensics. You will defend and indemnify Magnet Forensics from and against any third-party claim, cause of action, legal proceeding, cost, award of damages or any other judgment and legal expenses (“Claim”) in relation to : (a) a ny Claim arising from the modification, combination or use of the Software with equipment, software, interfaces, or other materials that are not specifically authorized by Magnet Forensics; and (b) Your collection and use of data resulting from Your use of the Software and any actions You take as a result thereof; and (c) unauthorized use of the Product.
EXHIBIT B
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9.2 Magnet Forensics Indemnity. Magnet Forensics will defend You from and against any suit brought against you by a third party to the extent the suit alleges that your use of a Product infringes a valid patent in Canada or the United States (an “IP Claim”). Magnet will also pay the damages, costs, and attorneys’ fees that are awarded against you in a final, non-appealable court judgment for the IP Claim, or required to be paid by you in a settlement of an IP Claim that Magnet has agreed to in writing. You agree to (i) give prompt notice of the IP Claim to Magnet Forensics; (ii) grant sole control of the defense and settlement of the IP Claim to Magnet Forensics; and (iii) provide reasonable cooperation to Magnet Forensics and, at Magnet Forensics’ request and expense, assistance in the defense or settlement of the IP Claim ("Your Indemnification Obligations”) and Magnet Forensics shall not be liable to the extent an IP Claim, or portion thereof, is attributable to Your breach of Your Indemnification Obligations. In the event of an IP Claim, Magnet Forensics may, at its option and expense: (a) obtain for You the right to continue to use the Product; (b) substitute a substantially equivalent non-infringing product; (c) modify the Product to make it non- infringing; or if (a), (b), and (c) are not commercially feasible, then (d) terminate Your license and require that You no longer access and use the Product. If Your license is terminated, You must return or destroy the Product and within 30 days of receipt of all of the Product or certification of destruction thereof, Magnet Forensics shall refund You x) a prorated amount of any unused prepaid license fees if You purchased a Term License; or y) a prorated amount of any unused prepaid Support Services fees if You purchased a Perpetual License . The indemnity obligations under this clause do not extend to Claims arising from or relating to: (aa) any modification to the Product or use in combination with any equipment, software, data or any other materials not authorized by Magnet Forensics where the infringement would not have occurred but for such activity; (bb) use of the Product by You in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; (cc) the continued use of the infringing Product after Magnet Forensics has provided substantially equivalent non-infringing software, a non-infringing modification of the Product, or terminated Your license in accordance with this Agreement; or (dd) custom Product developed at Your request while utilizing Your specifications .
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, THE PROVISIONS
OF THIS CLAUSE STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MAGNET FORENSICS
AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY ACTUAL OR ALLEGED
MISAPPROPRIATION, VIOLATION AND/OR INFRINGEMENT OF ANY PROPRIETARY AND/OR
INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9.3 Mutual General Indemnity. Each party will defend and hold harmless the other from and against any Claim arising from any of the following: (a) gross negligence, willful misconduct, fraudulent misrepresentation and fraud by a party; (b) bodily injury or death caused by a party; and (c) breach of confidentiality obligations. 10 Term and Termination
10.1 Term of Agreement. This Agreement shall survive for one (1) year after the termination or expiry of Your License Term.
10.2 Termination for Convenience. You may terminate this Agreement and Your license for Software at any time upon written notice to Magnet Forensics but You will not be entitled to any refund.
10.3 Termination for Breach. Either party may terminate this Agreement and any License Term immediately upon notice to the other if: (a) the other party materially breaches a material term or condition of this Agreement which breach remains unremedied for thirty (30) days following written notice thereof by the other party, or immediately if such breach is not capable of remedy; (b) the other party becomes involved in any legal proceeding concerning its solvency, commences liquidation proceedings, has a receiver or administrator appointed for any of its assets, ceases or threatens to cease operations, or otherwise has a serious and reasonable doubt arise respecting its solvency; or (c) if Magnet Forensics determines in its sole discretion that licensing the Product to You would violate applicable laws. If Your License Term is terminated due to breach by Magnet Forensics under (a) above, where Magnet Forensics is the relevant party under (b) above, or by Magnet Forensics in accordance with (c) above, Magnet Forensics shall refund
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You: (i) a prorated amount of any unused prepaid License fees if You purchased a Term License; or (ii) a prorated amount of any unused prepaid Support Services fees if You purchased a Perpetual License.
10.4 Termination/Expiry Obligation. Upon termination or expiry of this Agreement, and, if earlier, termination or expiry of a Term License, free trial or any Beta Period, You shall immediately cease all use and access of the Software and destroy or permanently delete all copies of the Software in Your possession along with any Documentation delivered to You or derivative works made therefrom.
10.5 Request for Information for Compliance. Upon request of Magnet Forensics, You agree to provide reasonable information on a timely basis to confirm Your compliance with the license rights and restrictions to the Product. Your failure to comply with this Section 10.5 will be deemed to be a material breach of this Agreement.
11 Compliance with Export Laws and Ethical Conduct
11.1 You shall not export any Product, Documentation, or Confidential Information unless You comply with all applicable international trade laws (“ITR”). Further, You warrant (a) You are not now and have never been on any Restricted Party List or any sanctions list in the countries in which You conduct business; and (b) You understand and abide by ITR laws administered by the country in which You conduct business. You agree not to engage in any action in any way that would cause Magnet Forensics to violate ITR laws of the country in which it conducts business, including providing Magnet Forensics Product, Documentation, or Confidential Information to any person in any country subject to comprehensive sanctions by the U.S., Canada, the UK, EU, the EU member state and Singapore or any person on a Restricted Party List. You agree to indemnify Magnet Forensics to the extent Your actions or inactions have caused Magnet Forensics to violate ITR laws and the ITR of the country in which it conducts business. You agree to maintain a sanctions compliance policy and controls to ensure compliance with the applicable economic sanctions and upon request provide a Magnet Forensics with a copy of such policy.
11.2 If the Software is being licensed by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then, as a commercial item, the Government ’s rights in the Software will be only as set forth: (a) in this Agreement; or (b) as provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (a) or (b) are the more restrictive.
11.3 Throughout Your use of the Product, You agree to comply with the Magnet Forensics Business Code of Conduct found at https://www.magnetforensics.com/legal. Failure to comply with the Business Code of Conduct may result in the suspension or termination of access to the Software , as outlined in this Agreement.
12 Magnet Forensics Entity, Governing Law
12.1 “Magnet Forensics” means:
a) Where Your “Bill To” address identified on the Quotation is in Canada, Magnet Forensics Inc., with an office at 2220 University Avenue East, Suite 300, Waterloo, Ontario, Canada N2K 0A8. b) Where Your “Bill To” address identified on the Quotation is in France, Magnet Forensics SAS, with an office at c/o WeWork 33 Rue La Fayette Paris, France 75009. c) Where Your “Bill To” address identified on the Quotation is in Germany, Magnet Forensics GmbH, with a registered office at Sternstraße 58, 40479 Düsseldorf, Germany. d) Where Your “Bill To” address identified on the Quotation is anywhere other than in Canada, France, and Germany, Magnet Forensics , LLC, with a registered office at 931 Monroe Drive Northeast, Suite A102-340, Atlanta GA 30308.
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12.2 Governing Law. This Agreement is governed by and con strued under, excluding any body of law governing conflicts of laws, the laws of: (a) England, where Your “Bill To” address identified on the Quotation is in Europe, Greenland or the UK; (b) Ontario, Canada, where Your “Bill To” address identified on the Quotation is in Canada, or (c) California, U.S., where Your “Bill To” address identified on the Quotation is anywhere else. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 13 General Provisions
13.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations, and understandings relating to the subject matter hereof. Your additional or different terms and conditions, whether on Your purchase order or otherwise, shall not apply.
13.2 Force Majeure. Neither party shall be deemed to be in default of this Agreement for failure to fulfill its obligations due to causes beyond its reasonable control. This provision shall not be construed as excusing any payment obligations.
13.3 Waiver. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omissio n by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
13.4 Notices. Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by hand or sent by registered mail, courier , facsimile or electronic mail. For notices to You, Magnet Forensics shall send such notice to Your “Bill To” Address. For notice to Magnet Forensics, You shall send such notice to Attn: Legal Department, Magnet Forensics, with an office at 300 Colonial Center Pkwy, Suite 130, Roswell, GA 30076, United States.
13.5 Assignment. You shall not assign or transfer this Agreement (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control) without the prior written consent of Magnet Forensics, which consent will not be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon the parties hereto and their respective lawful successors and permitted assigns. Any purported assignment in violation of this Section 13.5 shall be null and void.
13.6 Survival. Section 6 (Confidentiality), Section 8 (Limitation of Liability), Section 9 (Indemnification), and any other provision of this Agreement which by its nature would survive the termination or expiration of this Agreement shall do so.
13.7 Electronic Execution. The parties agree to the use of electronic communication in order to enter into this Agreement, Quotations, purchase orders and any other notices or records. You hereby waive any rights or requirements under any laws in any jurisdiction which require an original, non-electronic signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
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13.8 Invalidity. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties executed this Agreement.
MAGNET FORENSICS BAKERSFIELD POLICE DEPARTMENT (CA)
Per: Per:
Name: Name:
Title: Title:
Date: Date:
Address:
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Schedule A – Licensed Rights for All Products
1 Definitions.
1.1 “Case License” means the Software is subject to a license fee that is based on granting access to the Software for a single source (i.e. single hard drive or image file).
1.2 “CLS License” or “LLS License” means the Software is subject to a license fee that is calculated based on the number of concurrent usage virtual license Keys identified in the Quotation as available at any one time to be downloaded by Users. CLS (Cloud License Server) virtual license Keys are hosted in an online, cloud -based environment whereas LLS (Local License Server) virtual license Keys are hosted on Your premises.
1.3 “Dongle” means a USB device provisioned with the Software.
1.4 “Dongle License” means the Software is subject to a license fee that is calculated per Dongle.
1.5 “Enterprise License” means the Software is subject to a license fee that is calculated based on a maximum number of Software installs and/or concurrent Users as set out in the Quotation.
1.6 “Instance” means a copy of the Software that a User is authorized to use. The maximum number of Instances per User are stated in the Quotation.
1.7 “Key” means the license key provided to You by Magnet Forensics to permit access to and use of the Software to a User.
1.8 “Machine” means each hardware machine or hardware unit on which the Software is used.
1.9 “Machine License” means the Software is subject to a license fee that is calculated per Machine. 2 License Grant. Magnet Forensics hereby grants to You a limited, non-exclusive, revocable, non - transferable, non-sublicensable license to use the Software on Your internal business networks for the number of Users, installs, and/or Instances and License Term indicated in Your Quotation in accordance with the terms set forth in this Agreement and the Documentation . Your license only permits you to possess and use the Software in object code form. For certainty: (a) academic licenses are granted for academic, non-commercial use only; (b) licenses for Magnet AUTOMATE products are licensed on a per ‘control node” and “agent node” basis; (c) Machine Licenses are solely permitted for use of the Software on the Machine on which such Software is first installed and by the original User; and ( d) Dongle Licenses are for use on Machines only (and not for use in cloud or other virtual environments), and cannot be shared between individual Users. For further certainty: ( i) Enterprise Licenses, CLS Licenses and LLS Licenses allow for concurrent Users of the Software as indicated in Your Quotation; and ( ii) a unique key code is issued for a Case License tied to the original single source, with requirements for additional single sources requiring an add -on purchase. It is Your responsibility to fully comply with all applicable laws in using and handling the Software and any additional third-party license terms applicable to Third Party Software. 3 Restrictions. You shall not and shall ensure that Users shall not:
3.1 copy, reproduce, or modify the Product or any part thereof , including, but not limited to, com bining with other software or hardware other than as authorized by Magnet Forensics in writing ;
3.2 enhance, improve, alter, create derivative works, reverse engineer, disassemble, deconstruct, impair, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
3.3 distribute, lend, assign, license, sublicense, lease, pledge, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party;
3.4 use any Product on a time sharing, service bureau, application services provider (ASP), rental or other similar basis;
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3.5 remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software;
3.6 circumvent or disable copyright protection mechanisms or license management mechanisms;
3.7 photograph or record any of the Product’s components, whether internal, external or as digitally displayed;
3.8 use the Product to provide services to third parties (including technical or training services), or otherwise publicly display or market the Software, for the purposes of Your commercial gain;
3.9 use the Product in conjunction with other software or hardware, except as authorized in writing by Magnet Forensics;
3.10 use the Product in any unlawful manner or to violate any rights of a third party; or
3.11 authorise, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in 3.1 – 3.10 above, or attempting to do so.
For the purposes of this provision “copy” and “reproduce” shall not include: (A) making additional copies of the Software for Your own use, as long as only one copy may be used at any one time in accordance with the Documentation; or (B) making one back-up copy of the Software. 4 Restrictions Applicable to Consultant Licenses . Notwithstanding Section 3.8, if Your license is identified in a Quotation as a “consultant license”, You may use the Software in relation to Your provision of forensic analysis services to a third party for commercial gain, subject to Your compliance with all other terms of this Agreement and the payment of all applicable fees, provided that the following additional restrictions shall apply:
4.1 You shall be solely responsible for Your services, including any use or operation of the Software (both separately or in combination with any other software), to provide such services, and, as Magnet Forensics expressly disclaims all liability for any claims, losses or damages relating to Your services, You agree to indemnify Magnet Forensics against all such claims, losses and damages;
4.2 You shall not permit Your customers to use the Software (with the exception of using the Portable Case functionality);
4.3 You shall not use the Software to provide digital forensics training to third parties (including instructions on how to use the Software), unless You have first obtained Magnet Forensics’ express written permission;
4.4 You shall not, whether in an agreement for Your services or otherwise, in any way modify, negate or override any terms and conditions of the protections afforded to Magnet Forensics under this Agreement;
4.5 You shall not engage in deceptive, misleading, illegal or unethical practices that might reasonably be detrimental to Magnet Forensics or its products or services;
4.6 You shall not make any representations, warranties or guarantees about Magnet Forensics or its products and services except as expressly set out in this Agreement; and
4.7 where You wish to publicize, market or otherwise promote the use of the Software in Your services, You must do so in a manner consistent with Magnet Forensics’ External Marketing Policy (located at https://www.magnetforensics.com/wp-
content/uploads/2022/11/MagnetForensics_BrandGuidelines.pdf) and any other marketing and trademark requirements set out by Magnet Forensics from time to time . Any use of Magnet Forensics’ Trademarks shall remain unchanged and give legal notice of such trademark status.
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5 Beta Product. If You have requested use of or have access to Product or features that are identified by Magnet Forensics as pre-commercial, preview release, evaluation, pilot, "alpha", or "beta" ("Beta Product"), the license rights set out above with respect to Your use of such Beta Product apply only to the extent necessary to enable You and the Users to test and provide Feedback to Magnet Forensics regarding the Beta Product. You acknowledge and agree that Magnet Forensics may terminate Your use of Beta Product at any time and may include technical measures in the Beta Product that renders it inoperable and You agree that You will not circumvent such technical measures. You further acknowledge and agree that the Beta Product is provided “AS IS” with none of the representations, warranties, or indemnities provided in the Agreement. In consideration of the grant of license for the Beta Product, You agree that You will provide Magnet Forensics with Feedback on Beta Product as Magnet Forensics reasonably requests without any compensation. 6 Trial Licenses. If Your License is indicated as a Trial License on the Quotation (“Trial License”), the license rights set out above with respect to Your use of such Trial License apply only for the time period authorised by Magnet Forensics (“Trial Period”) and solely to the extent necessary to enable You and the Users to test the Product in order to identify if the Product is suitable for purchase from Magnet Forensics. Additionally, the Product underlying the Trial License or delivered to you as a Free Tool is provided “AS IS” with none of the representations, warranties or indemnities provided in the Agreement.
Notwithstanding the Trial Period, Magnet Forensics may terminate Your Trial License at any time and require that You cease using the Software.
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Schedule B – Additional Verakey Terms and Conditions
1 Definitions.
1.1 “Authorized Country” means the country in which You reside as set out in Your ‘End User’ address of the Quotation, or as otherwise pre-authorized by Magnet Forensics in writing.
1.2 “Authorized User(s)” for the purposes of this Schedule B, means employees who are authorized by You to access or use Verakey. You agree to limit the number of Authorized Users to those employees who perform extractions in the normal course of their employment.
1.3 “Authorized Device” means mobile devices and vehicle infotainment systems (a) owned and controlled by you; (b) if you are retained to perform an Investigation by a third party, owned by such third party; or (c) owned by an individual that has expressly, voluntarily, and specifically authorized you in writing, without coercion or threat of reprisal, to perform an Extraction of their mobile device .
1.4 “Extraction” means, for the purposes of this Schedule B, the use of Verakey to extract data from an Authorized Device.
1.5 “Verakey” means Products associated with the Magnet Forensics Verakey product family, including Verakey, Verakey Fastrak, Verakey Access, Autokey (when used by non-law enforcement or private sector entities), and related hardware and software Products. 2 License Restrictions. If You are licensing Verakey, as identified in Your Quotation, You agree to the following additional restrictions in addition to the license rights and restrictions set out in Schedule A of this Agreement:
2.1 You may only use Verakey in an Authorized Country for Extractions on Authorized Devices in aid of (1) an official investigation of corporate malfeasance including (a) fraud, ( b) bribery, ( c) theft, ( d) antitrust violation, (e) sabotage, (f) breach of confidentiality obligations, (g) securities violation, (h) IP infringement or misappropriation of intellectual property , (i) as part of or in response to an official government investigation or request for production of documentation (FDA, SEC, FTC, OSHA, etc.), (j) as part of a legally compelled production of documents by a court of competent jurisdiction, (k) alleged violations of applicable laws and regulations in the jurisdiction that the investigation is being conducted; (l) in defense of a criminal charge filed in a court of competent jurisdiction , where such investigation is made in response to an official complaint supported by reasonable evidence (each, an “Investigation”), (2) the provision of digital forensic services for the investigation and defen se of clients charged, or soon to be charged, under federal or state criminal codes, but only where a complete Graykey extraction(s) has not already been performed or is not available from the prosecution, or (3) estate -related data recovery where You have the requisite permissions and lawfulness to extract such data, and for no other purpose (“Authorized Extraction(s)”). You agree not to use Verakey to screen, audit, spot -check, or otherwise discover instances of corporate malfeasance or violation of corporate policy . Notwithstanding the foregoing, Magnet Forensics may authorize additional use cases of the Verakey and Verakey Access Products as described in the Documentation or through prior written authorization provided to You.
2.2 Prior to performing an Extraction or Access request, Magnet Forensics may require that you or your Authorized User(s) certify that the contemplated Extraction meets the above definition of an Authorized Extraction and request that You provide supporting documentation . You represent and warrant that (a) any certification and supporting documentation submitted as part of Your Authorized Extraction certification responsibilities and Access requests and (b) all materials submitted to Magnet Forensics in order to license Verakey (including Verakey Access) are true and correct in all material respects. You understand and agree that Verakey (including Verakey Access) is only permitted for limited use cases, as may be determined by Magnet Forensics from time to time and You further agree that Magnet Forensics may, in its sole discretion, reject any Extraction or Access requests made by You for any reason.
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2.3 You agree not to make statements in a court of law, tribunal, regulatory hearing, or similar setting, which attempt to discredit or would have the effect of creating uncertainty as to the effectiveness of Products or outputs therefrom.
2.4 To the extent legally practicable, Authorized Devices must remain in Your possession and control until after the software agent employed by Verakey has been successfully uninstalled from such Authorized Devices.
2.5 Only Authorized Users who have obtained any necessary consents and approvals are permitted to access and use Verakey in connection with any Extractions. You shall notify Magnet Forensics in writing the name and user information associated with each Authorized User, and within thirty (30) calendar days following a change of an Authorized User’s employment status such that the Authorized User ceases to be authorized by You to access or use Verakey either through ceasing to be employed by You or a change in his or her position within the Your organization such that he or she is no longer authorized to access or use Verakey.
2.6 You agree to designate an employee with senior management and oversight responsibilities within your organization to act as Your “Primary Authorized User.” The Primary Authorized User will be notified each time an extraction is performed on the device and shall supervise use and security of Verakey. You agree to require the Primary Authorized User, as part of their employment obligations, to monitor the use of and ensure the security of Verakey. The Primary Authorized User is not permitted to perform Extractions. You shall notify Magnet Forensics in writing the name and user information associated with the Primary Authorized User, and within thirty (30) calendar days following a change of the Primary Authorized User’s employment status such that the Primary Authorized User ceases to be tasked by the Licensee to oversee the use and security of Verakey.
2.7 You will conduct, at your expense, background checks on your employees (including but not limited to Authorized Users) and those of your agents and subcontractors who will have access (whether physical, remote, or otherwise) to Verakey. You will not permit your employees, agents, or subcontractors (including the personnel of any of its agents or subcontractors) that have been convicted of a felony crime or has agreed to or entered into a pretrial diversion or similar program in connection with a felony crime to have access to: (a) Magnet Forensics Confidential Information; (b) the secure environment in which Verakey is stored; ( c) Verakey, or any associated materials or documentation.
2.8 You covenant and agree to keep Verakey in a physically secure environment at all times, and to take all necessary precautions to restrict use of Verakey to Authorized Users . You acknowledge and agree that for Verakey to function properly in online mode, Verakey must be connected to the Internet. Further, You understand and agree that Verakey Access may only be used at the End User’s address listed on the Quotation. Verakey Access is prohibited from use at an Authorized User’s home address or a publicly shared workspace. Magnet Forensics reserves the right to review and audit security protocols at locations where Verakey is used and stored and accordingly limit access to Verakey.
2.9 Magnet Forensics may use third-party monitoring tools to ensure that You comply with the foregoing restrictions. You acknowledge that Your use of Verakey may be subject to additional terms and conditions as set by the third-party responsible for such tools. 3 Warranty Disclaimer. Notwithstanding Section 7.1 of the Agreement, You acknowledge and agree that the Software is provided AS -IS and without any warranty of any kind. Further, You acknowledge that all case stakeholders are aware of and understand the associated risk that the Authorized Device may become damaged and/or Authorized Device data may be unrecoverable when used with Verakey, in particular for Authorized Devices (a) with aftermarket repairs or hardware and nonstandard software builds; (b) that boot loop or are otherwise unable to boot normally; (c) that have preexisting damage, defects, or faults that may or may not be detectable; or (d) with software, sof tware builds, states, or
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usage profiles not identified on the applicable support matrix. You further understand that not all permutations of Authorized Device software, software builds, states, and usage profiles have been tested by Magnet Forensics. Before utilizing Verakey on an Authorized Device(s) under any of the above conditions, please consult Magnet Forensics through the customer support portal. You release Magnet Forensics from all liability associated with damage to a mobile device or corruption of mobile device data resulting from the use of Verakey. You further acknowledge and agree that Verakey may produce different results than other Magnet Forensics Products (such as Graykey) and that the use of Verakey with Authorized Devices can produce different results over time. 4 Violations of License Restrictions.
4.1 Section 8.1 of the Agreement (Limitation of Liability) shall not apply to damages arising from Your violation(s) of Schedule A - Section 3 and this Schedule B.
4.2 In addition to the termination rights set out in Section 10 of the Agreement (Termination), Magnet Forensics may terminate this Agreement and suspend Your License of Verakey, at its sole discretion and option, without notice and without refund or reimbursement if You violate any material term or condition of this Agreement (for clarity, all terms in this Schedule B shall be considered a material term or condition).
5 Heightened Confidentiality Obligations. Verakey, along with its associated Documentation, contains sensitive technologies whose Confidential Information requires the highest duty of care. You, Your employees, Your agents who require access in order to perform hereunder, and all final users of Verakey (collectively, “Receiving Party”) shall not disclose, use, sell, transmit, inform or make available to any entity, person or body any of the Confidential Information nor shall it copy, photograph, or otherwise reproduce any Confidential Information, excep t as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and Magnet Forensics’ rights therein, at all times exercising the highest duty of care. Receiving Party agrees to restrict access to Verakey Confidential Information to those Authorized Users who require access in order to perform hereunder, and, except as otherwise provided, the Receiving Party shall not make Confidential Information available to any other person or entity without the prior written consent of Magnet Forensics. Further, Receiving Party acknowledges and agrees that due to the unique nature of Verakey, there can be no adequate remedy at law for any breach of its obligations under this Section 5 related to Verakey, that any such breach will cause irreparable and continuing damage to Magnet Forensics and, therefore, that upon any such breach or any threat thereof, Magnet Forensics shall be entitled to whatever remedies it might have by law and equity, including injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages, if appropriate). The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.
6 Excess Use of Licenses. If You use Verakey in excess of the license quantities or levels stated in Your Quote, Magnet Forensics reserves the right to invoice You for such excess use based on the then current list price of the minimum add -on package required to bring Your use into compliance and yo u agree to pay such invoice in accordance with Section 3 of the Agreement. 7 Autokey Hardware License. Notwithstanding Section 3.3, any Hardware provided as part of the Autokey Product is licensed, not sold. Title to Autokey Hardware does not pass to You, and You shall return the Autokey Hardware unit to Magnet Forensics in good working condition, reasonable wear and tear excepted, within thirty (30) days following the e xpiration or earlier termination of the applicable License Term.
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Schedule C – Additional Graykey Terms and Conditions
1 Definitions.
1.1 “Authorized Location” means the registered location at the ‘End User’ address as set out in the Quotation or as otherwise provided in the Quotation , or (b) the location that You have otherwise registered with Magnet Forensics and that Magnet Forensics has approved in writing.
1.2 “Authorized User(s)” means, for the purposes of this Schedule C, collectively, employees, agents or contractors who are authorized by You to access or use Graykey.
1.3 “Device” means a mobile device or vehicle infotainment system.
1.4 “Extraction” means, for the purposes of this Schedule C, the use of the Product to extract data from a Device.
1.5 “Graykey” means Products associated with the Magnet Forensics Graykey product family, including Graykey, Graykey Fastrak, Autokey (when used by law enforcement or government entities), and related software and hardware Products.
2 License Restrictions. If You are licensing Graykey, as identified in Your Quotation, You agree to the following additional restrictions in addition to the license rights and restrictions set out in Schedule A of this Agreement:
2.1 Only Authorized Users who have obtained any necessary consents and approvals are permitted to access and use Graykey in connection with any Extractions. You shall notify Magnet Forensics in writing the name and user information associated with each Authorized User, and within thirty (30) calendar days following a change of an Authorized User’s employment status such that the Authorized User ceases to be au thorized by You to access or use Graykey either through ceasing to be employed by You or a change in his or her position within the Your organization such that he or she is no longer authorized to access or use Graykey.
2.2 To the extent legally practicable, Devices must remain in Your possession and control until after the software agent employed by Graykey has been successfully uninstalled from such Devices.
2.3 Unless Your use of Graykey is specifically authorized for mobile use, You covenant and agree to keep Graykey at the Authorized Location during use. Further , You covenant and agree to keep Graykey in a physically secure environment at all times, whether at the Authorized Location or during transit or mobile use, and to take all necessary precautions to restrict use of Graykey to Authorized Users. You acknowledge and agree that for Graykey to function properly in online mode, Graykey must be connected to the Internet.
2.4 Magnet Forensics may use third-party monitoring tools to ensure that You are in compliance with the foregoing restrictions. You acknowledge that Your use of Graykey may be subject to additional terms and conditions as set by the third-party responsible for such tools. 3 Warranty Disclaimer. Notwithstanding Section 7.1 of the Agreement, You acknowledge and agree that Graykey is provided AS-IS and without any warranty of any kind. Further, You acknowledge that all case stakeholders are aware of and understand the associated risk that a Device may become damaged and/or Device data may be unrecoverable when used with Graykey, in particular for Devices (a) with aftermarket repairs or hardware and nonstandard software builds; (b) that boot loop or are otherwise unable to boot normally; (c) that have preexisting damage, defects, or faults that may or may not be detectable; or ( d) with software, software builds, states, or usage profiles not identified on the applicable support matrix. You further understand that not all permutations of Device software, software builds, states, and usage profiles have been tested by Magnet Forensics . Before utilizing Graykey on a Device(s) under any of the above conditions, please consult Magnet Forensics through
EXHIBIT B
Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55
END USER
LICENSE AGREEMENT
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the customer support portal. You release Magnet Forensics from all liability associated with damage to a mobile device or corruption of mobile device data resulting from the use of Graykey. 4 Violations of License Restrictions.
4.1 Section 8.1 of the Agreement (Limitation of Liability) shall not apply to damages arising from Your violation(s) of Schedule A - Section 3 and this Schedule C.
4.2 In addition to the termination rights set out in Section 10 of the Agreement (Termination), Magnet Forensics may terminate this Agreement and suspend Your License of Graykey, at its sole discretion and option, without notice and without refund or reimbursement if You violate any material term or condition of this Agreement.
5 Heightened Confidentiality Obligations. Graykey, along with its associated Documentation, contains sensitive technologies whose Confidential Information requires the highest duty of care. You, Your employees, Your agents who require access in order to perform hereunder, and all final users of Graykey (collectively, “Receiving Party”) shall not disclose, use, sell, transmit, inform or make available to any entity, person or body any of the Confidential Information nor shall it copy, photograph, or otherwise reproduce any Confidential Information, excep t as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and Magnet Forensics’ rights therein, at all times exercising the highest duty of care. Receiving Party agrees to restrict access to Graykey Confidential Information to those Authorized Users who require access in order to perform hereunder, and, except as otherwise provided, the Receiving Party shall not make Confidential Information available to any other person or entity without the prior w ritten consent of Magnet Forensics. Further, Receiving Party acknowledges and agrees that due to the unique nature of Graykey, there can be no adequate remedy at law for any breach of its obligations under this Section 5 related to Graykey, that any such breach will cause irreparable and continuing damage to Magnet Forensics and, therefore, that upon any such breach or any threat thereof, Magnet Forensics shall be entitled to whatever remedies it might have by law and equity, including injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages, if appropriate). The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.
6 Autokey Hardware License. Notwithstanding Section 3.3, any Hardware provided as part of the Autokey Product is licensed, not sold. Title to Autokey Hardware does not pass to You, and You shall return the Autokey Hardware unit to Magnet Forensics in good working condition, reasonable wear and tear excepted, within thirty (30) days following the e xpiration or earlier termination of the applicable License Term.
7 Mandatory Hardware Buyout . Notwithstanding the preceding Autokey Hardware License clause, if You are prohibited by applicable law, regulation, or government or public sector procurement policy from holding Hardware on a licensed basis or are required to obtain ownership of such Hardware, You may convert the applicable Hardware from a license to a purchase upon written notice to Magnet Forensics, which notice shall identify the applicable legal or procurement requirement. Upon Magnet Forensics' receipt of such notice, You shall purchase the Hardware at Magnet Forensics' then -current MSRP for the applicable Hardware, upon payment of which title to the Hardware shall transfer to You.
Following such conversion, Your software license rights with respect to the applicable Hardw are shall continue for the remainder of the applicable License Term in accordance with this Agreement.
EXHIBIT B
Docusign Envelope ID: C9DF2CA5-739D-8186-8149-25E2BEF4CE55