CITY OF RICHMOND
STANDARD CONTRACT
Department: City Project Manager:
City Project Manager E-mail: City Project Manager Phone No:
Vendor No: Contract No:
Description of Services:
The parties to this STANDARD CONTRACT do mutually agree and promise as follows:
1. Parties. The parties to this Contract are the City of Richmond, a municipal corporation (“the City”), and the following named Contractor:
Contractor Name:
Street Address:
City, State, Zip Code:
Contact Person:
Telephone: Email:
Business License No:
☐ A California corporation, ☐ limited liability corporation ☐ general partnership, ☐ limited partnership, ☐ individual, ☐ non-profit corporation, ☐ individual dba as [specify:] ____________________ ☐ other [specify:] _______________________________
2. Term. The effective date of this Contract is _______________________ and terminates _________________ unless terminated earlier as set forth herein.
3. Payment Limit. City’s total payments to Contractor under this Contract shall not exceed $______________ (“Contract Payment Limit”) unless a Contract Amendment has been approved by the City Council or City Manager. If this amount includes a contingency, Contractor acknowledges that any use of such contingency shall be for work beyond the original scope of services and requires prior written authorization by the City. If noted below, Compensation for work done under this Contract, shall not exceed as follows:
FY _________ total compensation shall not exceed $_________________ FY _________ total compensation shall not exceed $_________________ FY _________ total compensation shall not exceed $_________________
4. Contractor’s Obligations. Contractor agrees to perform all work at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, in accordance with the Service Plan set forth in Exhibit A, attached hereto and incorporated herein.
5. City Obligations. City shall make payments to the Contractor in accordance with the Payment Provisions set forth in Exhibit B, attached hereto and incorporated herein.
6. Authorized Representatives and Notices. This Contract is subject to the Authorized Representatives and Notices Provisions (Exhibit C), attached hereto and incorporated herein.
7. General Conditions. This Contract is subject to the General Conditions (Exhibit D), which are attached hereto and incorporated herein.
8. Special Conditions. This Contract is subject to the Special Conditions (Exhibit E) (if any), which are attached hereto and incorporated herein.
9. Insurance Provisions. This Contract is subject to the Insurance Provisions (Exhibit F), which are attached hereto and incorporated herein.
10. Sanctuary City Compliance Statement. This Contract is subject to the Sanctuary City Compliance Statement (Exhibit G), which is attached hereto and incorporated herein.
11. Signatures. These signatures attest the parties' agreement hereto:
CITY OF RICHMOND,
a municipal corporation [BUSINESS NAME]
(* The Corporation Chairperson of the Board, President, or Vice President should sign below)
By: _________________________ By: ___________________________ Title: ________________________ Title: __________________________ Date Signed: _________________ Date Signed: ___________________ I hereby certify that this Contract (* The Corporation Chief Financial Officer or Assistant has been approved by City Council Treasurer, or Secretary or Assistant Secretary should or the City Manager. sign below)
By: _________________________ By: ___________________________ City Clerk Title: __________________________
Date Signed: ____________________
Approved as to form:
(NOTE: Pursuant to California Corporations Code Section By: _________________________ 313, if Contractor is a corporation or nonprofit organization, City Attorney this Contract (1) must be signed by (a) the Chairperson of the Board, President, or Vice-President and (b) the
Chief Financial Officer or Assistant Treasurer, or
Secretary or Assistant Secretary)
LIST OF ATTACHMENTS:
Service Plan Exhibit A
Payment Provisions Exhibit B
Authorized Representatives and Notices Exhibit C
General Conditions Exhibit D
Special Conditions Exhibit E
Insurance Provisions Exhibit F
Sanctuary City Compliance Statement Exhibit G
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT A
SERVICE PLAN
Contractor shall, to the satisfaction of the Project Manager ( set forth in Exhibit B) , perform the following services and be compensated as outlined below [or attach service plan if necessary]:
1 ORDER FORM
Mark43, Inc. Quote Number: Q-01868.5
8 West 40th Street, 2nd Floor Offer Valid Through: July 15, 2026 New York, NY 10018 Sales Contact: Mark Holleman
[email protected]
Bill to:
Subscriber Name: Richmond Community Crisis
Response Program (CCRP)
Start Date: July 1, 2026
Address: 450 Civic Center Plaza
Richmond, CA 94804
End Date: June 30, 2029
Billing Contact: Sam Vaughn
Billing Contact Email: [email protected]
Billing Frequency: Annual
Payment Terms: Net 30
Purchase Order. Is a purchase order required by Subscriber to purchase? Yes _____ No ______ SaaS Services. Product descriptions for the Services noted below are set forth at https://mark43.com/Mark43-Product- Catalogue:
SKU Year 1 SaaS and Recurring Services Qty (if applicable) Price to
Subscriber
INS-INF Insights Informed
Not to Exceed 1
Instance(s) $6,600.00
CAD 2
MOB-1-
CAD
Mark43 CAD:
• LE First Responder
• OnScene Mobile Application for CAD
Not to Exceed 12
total sworn $12,960.00
INT-MAINT-
CUST1 Interface Maintenance: Custom 1
Not to Exceed 1
Interface(s) $5,000.00
Subtotal $24,560.00
SKU Year 2 SaaS and Recurring Services Qty (if applicable) Price to
Subscriber
INS-INF Insights Informed
Not to Exceed 1
Instance(s) $6,600.00
CAD 2
MOB-1-
CAD
Mark43 CAD:
• LE First Responder
• OnScene Mobile Application for CAD
Not to Exceed 12
total sworn $12,960.00
INT-MAINT-
CUST1 Interface Maintenance: Custom 1
Not to Exceed 1
Interface(s) $5,000.00
Subtotal $24,560.00
2 SKU Year 3 SaaS and Recurring Services Qty (if applicable) Price to
Subscriber
INS-INF Insights Informed
Not to Exceed 1
Instance(s) $6,930.00
CAD 2
MOB-1-CAD
Mark43 CAD:
• LE First Responder
• OnScene Mobile Application for CAD
Not to Exceed 12
total sworn $13,608.00
INT-MAINT-
CUST1 Interface Maintenance: Custom 1
Not to Exceed 1
Interface(s) $5,250.00
Subtotal $25,788.00
Total SaaS Services $74,908.00
SKU Professional Services
Qty (if
applicable)
Price to
Subscriber
TRN-0 Standard Training Package 1 package(s) $5,760.00
INT-CUST1 Interface Development: Custom 1 1 interface(s) $15,000.00 Total $20,760.00
Renewal Term and Pricing . Unless Subscriber provides 60 days’ notice of termination prior to the End Date, the SaaS Services will auto-renew for a 5 year term at an increase of 5% year over year for each year of the renewal term.
Additional increases may be applied at any time during the Term if required quantities increase.
Invoicing and Payment. Subscription Fees are payable upfront annually. Mark43 will issue the first invoice on or after the effective date of this Order Form and each subsequent invoice (if any) on or after the anniversary thereof. Subscriber shall pay all invoices to Mark43’s nominated bank account within thirty (30) days of the date of the invoice.
Payment Schedule Due Date Amount Due
Year 1 Payment(s) Order Form Start Date $45,320.00
Year 2 Payment(s) July 1, 2027 $24,560.00
Year 3 Payment(s) July 1, 2028 $25,788.00
Total $95,668.00
This Order Form is entered into in accordance with and it incorporates the terms of the Software License and Services Agreement and any attached schedules (the “SLSA” or “Agreement”). Except as otherwise provided in this Order Form, previously executed Order Form(s) remain in effect. This Order Form does not incorporate any other terms, whether oral or written, and whether contained in a purchase order or otherwise and, for the avoidance of doubt, prevails over any terms contained therein. By signing below, the parties agree to be bound by the terms of this Order Form. Each party represents and warrants that this Order Form is executed by a duly authorized legal representative of such party. This Order Form may be executed in counterparts (including electronic copies) each of which will be deemed an original, with all counterparts constituting one agreement.
Mark43, Inc. Subscriber
Name: Name:
3 Title: Title:
Signature: Signature:
Date: Date:
4 Appendix A: Description of Services
The following details the Professional Services being provided as part of this Order Form
1. Mark43 will coordinate with the Subscriber to configure all elements of the First Responder and OnScene Applications.
2. Mark43 will collaborate with the Subscriber to design, develop, and deploy the in -scope interfaces, namely a Bonterra CAD to RMS interface ( Custom 1 level). Subscriber will provide interface design requirements, participate in data mapping sessions, supply necessary system documentation, and support interface testing activities. Successful delivery of the interface is contingent on responsiveness with the third-party provider
3. Mark43 will provide one (1) training session that can be performed on-site and/or virtually.
Statement of Work
Richmond Community Crisis Response Program
Section 1: Introduction and Overview................................ ................................ ............. 2 Section 2: Scope of Services and Deliverables ................................ ................................ 3
2.1 Tenant Provisioning ................................ ................................ .......................... 3
2.2 Computer Aided Dispatch (CAD)................................ ................................ ........ 3
2.2.1 CAD Dispatcher ................................ ................................ .......................... 3
2.2.2 First Responder/OnScene ................................ ................................ ........... 3
2.2.3 CAD GIS/Locations ................................ ................................ ..................... 3
2.2.4 CAD Administrative Settings and Preferences ................................ ............... 3
2.2.5 CAD Technical Requirements ................................ ................................ ...... 4
2.3 Insights ................................ ................................ ................................ ............ 4
2.4 Training ................................ ................................ ................................ ............ 4
2.5 Interfaces ................................ ................................ ................................ ........ 4 Section 3: Project Phases and Timeline ................................ ................................ .......... 4
3.1 Project Phases ................................ ................................ ................................ . 5
3.1.1 Preparation and Planning ................................ ................................ ............ 5
3.1.2 Discovery and Application Setup ................................ ................................ . 5
3.1.3 Application Validation ................................ ................................ ................. 5
3.1.4 Training and Change Management ................................ ............................... 5
3.1.5 Launch ................................ ................................ ................................ ...... 5
3.1.6 Project Closeout ................................ ................................ ......................... 5 Section 4: Assumptions and Constraints ................................ ................................ ........ 5
4.1 Assumptions ................................ ................................ ................................ .... 5
4.2 Constraints ................................ ................................ ................................ ...... 6 Section 5: Project Management and Governance ................................ ............................ 6
5.1 Project Management Approach................................ ................................ .......... 6
5.2 Governance Structure ................................ ................................ ....................... 6
5.3 Communication Plan ................................ ................................ ........................ 6
5.4 Risk Management Plan ................................ ................................ ...................... 7 Section 6: Change Order Process ................................ ................................ .................. 7
6.1 Initiation of Request ................................ ................................ .......................... 7
6.2 Continuation of Service ................................ ................................ ..................... 7 Section 7: Roles and Responsibilities................................ ................................ ............. 7
7.1 Project Governance Activities ................................ ................................ ............ 7
7.2 Application Setup Activities ................................ ................................ ............... 8
7.3 GIS/Location Activities ................................ ................................ ...................... 8
7.4 Technical Requirement Activities (if applicable) ................................ .................. 9
7.5 Training Activities ................................ ................................ ............................. 9
7.6 Launch Activities ................................ ................................ .............................. 9
7.7 Interface Activities ................................ ................................ .......................... 10
7.8 Additional Subscriber Responsibility ................................ ................................ 11 Signature Sheet ................................ ................................ ................................ .......... 11 Section 1: Introduction and Overview
Order Form Number: Q-01868.5
This Statement of Work (SOW) outlines the Professional Services to be provided to the Richmond Community Crisis Response Program (Subscriber) to assist with the setup, configuration and/or optimization of the Mark43 Applications. This SOW forms a part of, and is entered into pursuant to, the Software License and Services Agreement between Mark43 and Subscriber (SLSA). This SOW shall have the same Effective Date as defined in the SLSA. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the SLSA.
This project will follow an implementation approach tailored to the specific solution scope, which is designed to allow for flexibility in delivery while ensuring alignment with project objectives.
The term of this SOW will begin on the Effective Date and continue until the completion of the Professional Services, which is expected to span twelve (12) months from the Effective Date.
Professional Services not explicitly listed herein, including unique integrations, custom development, or solutions that fall outside of established best practices, are excluded from the scope of this SOW.
Section 2: Scope of Services and Deliverables
2.1 Tenant Provisioning
Tenant provisioning is the creation of the tenant and the configuration of the Subscriber’s agency information therein. The in-scope tenants are detailed below. Upon creation of the Foundation Tenant, a user account will be provisioned for one designated member of the Subscriber’s project team, thereby granting the Subscriber access to the Tenant.
Tenant Description
Foundation (Training and Testing) (1) Sandbox environment for continuous testing and validation
Production (1) Live environment to support launch and
sustainment
2.2 Computer Aided Dispatch (CAD)
2.2.1 CAD Dispatcher
Mark43 will coordinate with the Subscriber to configure all elements of the CAD Dispatcher Module.
2.2.2 First Responder/OnScene
Mark43 will coordinate with the Subscriber to configure all elements of the First Responder and OnScene Applications.
2.2.3 CAD GIS/Locations
Mark43 will coordinate with the Subscriber to configure shapefile types and other location entities to be uploaded into CAD. Mark43 will work with the Subscriber to perform updates to the location data on a biannual basis.
2.2.4 CAD Administrative Settings and Preferences
Mark43 will coordinate with the Subscriber to configure the CAD, First Responder and OnScene administrative settings including roles and abilities for dispatcher, dispatch supervisor and CAD Administrator. Administrative settings will be configured based on workflow decisions and system functionality. In addition, CAD, First Responder, and OnScene system preferences will be configured to match the workflow decisions of the agency.
2.2.5 CAD Technical Requirements
Mark43 will provide the Subscriber with consultation on technical requirements to set up the applications that are in scope.
• Installation of in-scope Mark43 applications on supported desktops, laptops and mobile devices o Note: Subscriber must ensure that their hardware and software meet Mark43 requirements for desktops, laptops and mobile devices
• SSO configuration
• Interfaces/print servers
• Desktop Integration Services Installer
• Migrations
o Setup of AWS S3 storage/Azure Cloud storage for migration o Setup of AWS S3 RDS instance/Azure Cloud RDS instance
2.3 Insights
Mark43 will assist in creating customized dashboards containing up to fifteen (15) visualizations, as well as configuring automated, recurring reports.
2.4 Training
Mark43 offers a variety of train-the-trainer and direct end-user training that can be performed on-site and/or virtually. The training that is in-scope for this project is listed in the table below.
Product Training Time and Description
CAD Dispatch Fundamentals, First Responder and
OnScene: 3 one-day sessions (to be performed
virtually)
Insights Two 1-hour sessions (to be performed virtually)
2.5 Interfaces
Mark43 will collaborate with the Subscriber to design, develop, and deploy the in-scope interfaces.
Interface Name Interface Type Product and
Direction
Description
Bonterra (CAR to RMS) Custom 1 CAD (outbound) Sends Mark43 CAD event information to
Bonterra RMS
Section 3: Project Phases and Timeline
3.1 Project Phases
3.1.1 Preparation and Planning
A detailed project plan is created, including governance structure, timelines, and milestones. The Introduction call is completed with the subscriber.
3.1.2 Discovery and Application Setup
The tenant is provisioned. In-scope modules, products, and applications are activated and configured.
3.1.3 Application Validation
Establish code cutoff. Subscriber conducts parallel processing and practice in all modules to ensure configuration is correct, and application setup is complete. Launch requirements and acceptance criteria have been met.
3.1.4 Training and Change Management
Training is completed with the Subscriber.
3.1.5 Launch
All in-scope modules and products are set to live, and the Subscriber begins using the product.
3.1.6 Project Closeout
Upon the completion of project deliverables, the project team will conduct a final review to resolve outstanding items, perform a knowledge transfer, and formally close out the project.
Section 4: Assumptions and Constraints
The Professional Services provided through this SOW are premised on the following being true:
4.1 Assumptions
• Mark43 is not responsible for configuring non-Mark43 products. • Professional Services are limited to the scope of services of each offering purchased. • Mark43 is not responsible for evaluating the Subscriber’s current state or agency practices, policies, or procedures for the purpose of process improvement or performance improvement. • Professional Services within this SOW will be delivered to Subscriber remotely unless agreed otherwise.
• When combining individual professional services offerings (application setup, additional reports and/or modules, interfaces, data migration and training), there will be one (1) project management/preparation phase, one (1) application setup phase, one (1) enablement phase and one (1) launch phase.
• Creating agency specific forms or fillable PDFs to be generated from the application is not the responsibility of Mark43. Original PDFs must be provided by the Subscriber. • Mark43 is not responsible for the codes (offenses, charges, etc.) or compliance mappings that will be enabled and maintained in the system.
• After the application is initially set up, the Subscriber will be able to maintain the configuration of the tenant, including users, roles and abilities.
• All configurations and content mappings are based on Mark43 default configurations. Mark43 is not responsible for the re-purposing of any field.
• Mark43’s Professional Services team will determine which support tickets directly impact the outcomes listed herein and will manage and resolve support cases that prevent the outcomes from being completed. Any support cases not directly impacting project outcomes will be managed by Mark43’s Customer Success and Support teams in accordance with Subscriber’s agreement in place with Mark43.
• Remaining open support cases will not keep this SOW open as long as all outcomes defined herein have been performed.
• Mark43 resources will not be responsible for updating Subscriber project tracking tools and systems.
• Mark43 resources will not be responsible for creating or maintaining any internal documentation for the Subscriber regarding use of the application.
4.2 Constraints
The following activities and responsibilities are excluded from the scope of the implementation:
• Implementation of products or delivery of services not included within this SOW or the SLSA. • Evaluation of Subscriber’s current state or agency practices, policies, or procedures for the purpose of process improvement or performance improvement. • Troubleshooting of any issues not related to Mark43 software, Mark43 development, or Mark43 interfaces, unless otherwise outlined.
• Interfacing, or integrating, from or to Mark43 from other systems or third parties other than those specified in this SOW or the SLSA.
• Installation of any non-Mark43 software, servers, workstations, or any other hardware. • Export of Mark43 data to other systems or third parties other than those specified in the SLSA.
Section 5: Project Management and Governance
5.1 Project Management Approach
The project will follow a structured project management methodology to ensure timely and quality delivery of project outcomes. A dedicated Project Manager will be assigned to oversee the project through the different phases detailed in Section 3 using project management tools to facilitate scheduling, status reporting, and project task management.
5.2 Governance Structure
The Project governance structure will be designed to ensure alignment, accountability, and effective decision-making to support successful implementation. A dedicated project team will be resourced, and recurring meetings will be held to track progress, manage risks, and address issues.
5.3 Communication Plan
To support streamlined communication and effective collaboration, the project will leverage recurring status meetings, regular status reports, and a shared documentation repository to ensure transparency and alignment throughout the project lifecycle.
5.4 Risk Management Plan
Risks will be logged and tracked using our project management tools. The escalation process will serve to provide a clear path for raising issues that can adversely affect project progress.
Section 6: Change Order Process
6.1 Initiation of Request
Any changes made to this SOW will be made through a Change Order. A Change Order may be initiated by either party through documentation provided by Mark43 to handle changes to the SOW. Either Project Manager may request a change by email to the other party’s Project Manager and the two shall jointly review.
6.2 Continuation of Service
Until a Change Order is either executed between Subscriber and Mark43 or attached to an additional Order Form, the Professional Services will continue in accordance with the latest agreed version of the SOW.
Section 7: Roles and Responsibilities
7.1 Project Governance Activities
Subscriber Responsibilities
Detailed below are the key stakeholders and their responsibilities for project implementation.
Subscriber Key Stakeholder Responsibilities
Executive Sponsor Executive alignment, issue escalation, and strategic guidance
Project Manager Project planning, execution oversight, stakeholder coordination
CAD Lead CAD subject matter expert
Training Lead Training coordinator(s) and facilitator(s) Technical Lead Technical oversight and implementation support GIS Lead GIS subject matter expert
Mark43 Responsibilities
Project Introduction will include a welcome email, a subscriber introduction meeting, and an overview of the Mark43 subscriber journey, Professional Services, and SOW.
Mark43 Key Stakeholders Responsibilities
Executive Sponsor Executive alignment, issue escalation, and strategic guidance
Project Manager Project planning, execution oversight, stakeholder coordination
CAD Architect CAD subject matter expert
GIS Architect GIS subject matter expert
Interface Lead Interface design, data mapping and integration support
Professional Services Lead Technical oversight, server configuration, SSO and GIS setup
7.2 Application Setup Activities
Subscriber Responsibilities
Attend configuration sessions to finalize field settings, rules, and administrative settings, and provide operational context as needed.
Subscriber Key Stakeholder Responsibilities
Project Manager Execution oversight and stakeholder coordination CAD Lead CAD subject matter expert
Technical Lead Technical oversight and implementation support Mark43 Responsibilities
Host configuration sessions to review fields, attributes, rules, and admin settings. Provide best practices, assist with initial setup, and supply required templates to support application configuration.
Mark43 Key Stakeholders Responsibilities
Project Manager Execution oversight and stakeholder coordination CAD Architect CAD subject matter expert
7.3 GIS/Location Activities
Subscriber Responsibilities
Provide shapefile and location entities in the correct format to Mark43. Deliver ESRI map package with all visual components.
Subscriber Key Stakeholder Responsibilities
Project Manager Oversight, stakeholder coordination
RMS Lead RMS subject matter expert
CAD Lead CAD subject matter expert
GIS Lead GIS subject matter expert
Technical Lead Technical oversight and implementation support Mark43 Responsibilities
Provide Subscriber with shapefile and location entity prerequisites, review data formatting, and upload to the Mark43 tenant for review with the Subscriber.
Mark43 Key Stakeholders Responsibilities
Project Manager Oversight, stakeholder coordination
RMS Architect RMS subject matter expert
CAD Architect CAD subject matter expert
GIS Architect GIS subject matter expert
Professional Services Lead Technical oversight, server configuration, SSO and GIS setup
7.4 Technical Requirement Activities (if applicable)
Subscriber Responsibilities
Setup 2 x Linux Server OS and 1 x Windows Server and Evidence Label Printers. Verify hardware/software requirements; download and configure CAD and FR applications.
Provide SSO IDP configuration, COM port and GPS modem details, public IPs for AWS S3 access, and VPN access for Mark43 configurations.
Subscriber Key Stakeholder Responsibilities
Project Manager Oversight, stakeholder coordination
Technical Lead Technical oversight and implementation support Mark43 Responsibilities
Configure Linux servers for Mark43 RMS/CAD, set up evidence print servers, assist with CAD and FR application deployment, configure SSO access, build and test desktop integration services, configure AWS S3 and provide credentials, and deliver Windows server requirements documentation.
Mark43 Key Stakeholders Responsibilities
Project Manager Oversight, stakeholder coordination
Professional Services Lead Technical oversight, server configuration, SSO and GIS setup
7.5 Training Activities
Subscriber Responsibilities
Provide a training space with internet, computers (Chrome or Edge), projector, speakers for remote sessions, individual stations for each trainee, a participant roster, and ensure users have accounts and login access.
Subscriber Key Stakeholder Responsibilities
Project Manager Oversight, stakeholder coordination
CAD Lead CAD subject matter expert
Training Lead Training Coordinator and Facilitator
Mark43 Responsibilities
Mark43 will provide access to our knowledge portal and learning management system, deliver standardized training outlines, and collaborate with the Subscriber to schedule all training sessions.
Mark43 Key Stakeholders Responsibilities
Project Manager Oversight, stakeholder coordination
CAD Architect CAD subject matter expert
7.6 Launch Activities
Subscriber Responsibilities
Subscriber will communicate the details of launch internally, establish and share issue escalation process, provide launch support, send a launch confirmation email to Mark43, and escalate issues to the project team during the hypercare period that spans 30 days post-launch.
Subscriber Key Stakeholder Responsibilities
Project Manager Oversight, stakeholder coordination
RMS Lead RMS subject matter expert
CAD Lead CAD subject matter expert
Technical Lead Technical oversight and implementation support Data Migration Lead Legacy data subject matter expert and validation owner
Mark43 Responsibilities
Mark43 will provide the cutover checklist, support plan, and launch issue tracker, clone the production tenant, deliver contracted launch support, and manage launch issues for 30 days post-launch facilitating a transition to the Customer Experience and Support teams thereafter.
Mark43 Key Stakeholders Responsibilities
Project Manager Oversight, stakeholder coordination
RMS Architect RMS subject matter expert
CAD Architect CAD subject matter expert
Interface Lead Interface design, data mapping and integration support
Data Migration Lead Migration planning, data mapping, ETL and quality insurance
Professional Services Lead Technical oversight, server configuration, SSO and GIS setup
7.7 Interface Activities
Subscriber Responsibilities
Subscriber will provide interface design requirements, participate in data mapping sessions, supply necessary system documentation, and support interface testing activities.
Subscriber Key Stakeholder Responsibilities
Project Manager Oversight, stakeholder coordination
Technical Lead Technical oversight and implementation support CAD Lead CAD subject matter expert
Mark43 Responsibilities
Responsible for developing the interface, executing data mapping, building and configuring the interfaces, and providing support throughout testing and deployment.
Mark43 Key Stakeholders Responsibilities
Project Manager Oversight, stakeholder coordination
CAD Architect CAD subject matter expert
Interface Lead Interface design, data mapping and integration support
7.8 Additional Subscriber Responsibility
Subscriber will provide timely feedback and responses. Late feedback may impact target delivery dates.
Such delays may impact work streams or the project in its entirety. Mark43 reserves the right, in its discretion, to pause any portion of the project if impacted by a lack of feedback or responsiveness and will not be liable for any resulting delays.
Signature Sheet
_________________________________________
Customer
_________________________________________
Mark43
DocID #76252v1
1 SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (this “Agreement”) is effective as of 09/15/2026 the “Effective Date”) by and between Mark43, Inc. (“Mark43”), with a place of business at 8 West 40th Street, 2nd Floor, New York, NY 10018, and Richmond Community Crisis Response Program (“ Subscriber”), with a place of busin ess at 450 Civic Center Plaza, Richmond, CA 94804.
For good and valuable consideration, the receipt and suffi ciency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS .
1.1 “Affiliate” means, with respect to any entity, any other entity who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.2 “Affiliated Agency” means any government agency to which Sub scriber is legally or contractually permitted to share certain Subscriber Data and/or access to an Application.
1.3 “Applicable Law(s) ” means, with respect to any party, any fo reign, federal, state or local law, including, without limitation, st atutes, regulations, ordinances, and similar authorities, applicable to such party’s performance hereunder.
1.4 “Applications” means the object code versions of Mark43’s software applications for which Subscriber is purchasing subscriptions under an Order Form, as described in such Order Form, and all Updates made available by Mark43 to Subscriber under this Agreement.
1.5 “Authorized Users” means employees of Subscriber and any Affiliated Agency who are authorized to access and use the Applications on Subscriber’s behalf in accordance with the applicable security designation(s), pursuant to which full or limited access to the applicable Applications may be granted.
1.6 “Documentation” means the documentation regarding the functionality and use of the Applications made available to Subscriber by Mark43, including the technical requirements described at https://mark43.com/tech-requirements, which technical requirements may be updated from time to time upon reasonable advance written notice (email acceptable) to Subscriber.
1.7 “Go Live” means the date of cutover to each respective Mark43 Application.
1.8 “Interface Software ” means the object code version of any interface software made available by Mark43 to Subscriber under this Agreement for download and installation in connection with Subscriber’s use of the Applications with its own systems.
1.9 “Intellectual Property Rights ” means all intellectual and industrial property rights, whether now existing or existing in the future, including (a) all patent rights, including any rights in pending patent applications and any related rights; (b) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (c) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefor; (d) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non- disclosure; and (e) all other rights covering indust rial or intellectual property recognized in any jurisdiction.
1.10 “Mark43 Integrated Application ” means a third-party product, serv ice, database, or application, other than Subscriber Integrated Ap plications, that is incorporat ed in, integrated with, accessed through, or used to host the SaaS Services.
1.11 “Mark43 Integrated Application Data ” means all data, information, content and other materials provided or made available by a Mark43 Integrated Application.
1.12 “Mark43 Materials ” means, collectively, the Website, Applications, SaaS Services, Updates, Documentation, Interface Software, Work Product, Mark43 Integrated Applications, and Mark43 Integrated Application Data.
1.13 “Order Form ” means each Mark43 order form agreed to and executed by a duly authorized representative of each of Mark43 and Subscriber that references this Agreement and that identifies the Applications and/or Profession al Services ordered by Subscri ber and the fees to be paid by
DocID #76252v1
2 Subscriber thereunder. An Order Form may includ e a Statement of Work. Each Order Form is incorporated into and subject to the terms of this Agreement.
1.14 “Professional Services” means any implementation, training, project management, consulting and other services (outside the scope of the Support Services) that are described in a Statement of Work.
1.15 “SaaS Services” means Mark43’s provision of the Applications to Subscriber on a software-as-a- service basis for remote access use by Subscriber and its Authorized Users.
1.16 “Services ” means, collectively, the SaaS Services, Support Services, and any Professional Services.
1.17 “Statement of Work ” means a written description of the Professional Services ordered by Subscriber that is agreed to and executed by a duly authorized representative of each of Mark43 and Subscriber and that references this Agreement. Ea ch Statement of Work is incorporated into and subject to the terms of this Agreement.
1.18 “Subscriber Data ” means (a) all data, information, cont ent and other materials transmitted by Subscriber or any Authorized User to the Applications, (b) all Subscriber Integrated Application Data, and (c) all Subscriber-specific output resulting from Subscriber’s and its Authorized Users’ use of the Applications that is displayed to Subscriber on t he Applications, excluding in all cases Third-Party Data, data owned, provided, or made available by Mark43, and data imported by Mark43 from third- party software at Subscriber’s request for data migration purposes.
1.19 “Subscriber Integrated Application" means a third-party product, service, database, or application set forth on an Order Form that will be installed, link ed or enabled by or on behalf of Subscriber for use in connection with the SaaS Services (e.g. NCIC).
1.20 “Subscriber Integrated Application Data” means all data, information, content and other materials provided or made available by a Subscriber Integrated Application.
1.21 “Subscriber Integrated Application Provider ” means the third party who provides or makes available the applicable Subscriber Integrated Application, which may include other vendors, Affiliated Agencies, state agencies and local agencies.
1.22 “Support Services” means the support services provided by or on behalf of Mark43 with respect to Subscriber’s use of the Appl ications and the service level agreement, as described at https://mark43.com/support-services/, which is incorporated herein by this reference, and which may be updated from time to time by Mark43, provided such updates do not materially degrade Mark43’s support offering.
1.23 “Third-Party Data” means any data, information, content and other materials made available by any third party, including Subscriber Integrated Application Data and Mark43 Integrated Application Data.
1.24 “Updates” means any and all new releases, new versions, modifications, enhancements, patches and other updates for the Applic ations that Mark43 makes genera lly available without additional charge to its other subscribers to such Applications.
1.25 “Website” means any internet website through which Mark43 provides the SaaS Services under this Agreement.
1.26 “Work Product” means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind that Mark43, or personnel working for or through Mark43, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing Professional Services or as a result of such Professional Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection, including any customizations or configurations to the Applications or Interface Software.
2. PROVISION OF THE SERVICES AND SOFTWARE.
2.1 SaaS Services . Subject to the terms of this Agreement, and during the Term, Mark43 hereby grants to Subscriber a non-exclusive, non-transferabl e (except as permitted by Section 11.2), non- sublicensable (a) right to access and use, and to permit Authorized Users to access and use solely for the benefit of Subscriber and its Affiliated Agencies, the Applications, and (b) license to download and install on Subscriber’s servers, and use in connection with Subscriber’s use of the Applications hereunder, any Interface Software, in each case of (a) and (b), solely in furtherance of Subscriber's legitimate internal business purposes and in accordance with this Agreement and the Documentation. Mark43 will be responsible for hosting the Website and the Applications, and
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3 Subscriber and its Authorized Users will be responsible for obtaining internet connections and other third-party software, hardware and services necessa ry for them to access the Website through the internet, including as set forth in the Documentat ion. Subscriber will be responsible to Mark43 for each Authorized User’s compliance with the restrictions on use and other terms and conditions of this Agreement and for each Authorized User’s acts and omissions in connection with their use of the SaaS Services.
2.2 Professional Services . Subject to the terms and conditions of this Agreement, Mark43 will provide to Subscriber the Professional Services agreed to by Subscriber and Mark43 and set forth in a Statement of Work. To the ext ent any Professional Services in volve the development of any Work Product, all Intellectual Property Rights to such Work Product will be solely owned by Mark43, will be deemed to be included in the definition of SaaS Se rvices and will be provided to Subscriber on the terms set forth herein.
2.3 Access to Documentation . Mark43 will provide Subscriber vi a the Website or other means with access to the Documentation, as may be updated from time to time. Subscriber may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the SaaS Services.
2.4 Support Services . Subject to the terms and conditions of this Agreement, Mark43 will provide to Subscriber the Support Services.
2.5 Restrictions on Use. Except as expressly permitted in th is Agreement or the Documentation, Subscriber and its Authorized Users will not, directly or indirectly, and will not permit any other party to: (a) share Subscriber’s or any Authorized User ’s login credentials to the Applications, Support Services and Documentation; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms , file formats, or interf ace protocols of any of the Mark43 Materials or of any files contained in or generated by any Mark 43 Materials; (c) copy, modify, adapt or translate any of the Mark43 Materials, or otherwise make any use, resell, distribute or sublicense any of the Mark43 Materials; (d) make any of the Mark43 Materials available on a “service bureau” basis or otherwise provide to or allow any third parties to access or use any of the Mark43 Materials; (e) remove or modify any proprie tary marking or restrictive legends of Mark43 or its suppliers in or on any of the Mark43 Materials; (f) use any of the Mark43 Materials in violation of any Applicable Law; (g) use any of the Mark43 Mate rials or any Mark43 Integrated Applications to create or augment any mapping or navigation rela ted dataset, business listings database, mailing list, or telemarketing list, for use in connection wit h any products or services other than the SaaS Services; (h) introduce into any of the Mark43 Materials any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature; (i) use any of the Mark43 Materials to post advertising or listings; (j) use any of the Mark43 Materials to defame, abuse, harass, stal k, or threaten others; (k) if Subscriber’s organization is based in the United States, pe rmit access or use of any of the Mark43 Materials by any individual located outside the United States; (l) hide or obscure any Authorized User’s location; (m) access or use or permit others to access or use, any of the Mark43 Materials (i) for any activities other than to enh ance Subscriber’s own services and professional judgment, or (ii) in any manner such that the Mark43 Materials are the only resources being utilized by Subscriber or any Authorized User to make a decision that could lead to death, personal injury, or property damages; (n) access or use any of the Mark43 Materials to create a competitive product or service; or (o) use or access any Mark43 Mate rials to develop, train, fine-tune, or otherwise improve any machine learni ng models, artificial intelligence syst ems, or similar technologies. In addition, Subscriber and its Authorized Users may not access or use any of the Mark43 Materials if in direct competition with Mark43, and will not allow access to or use of any of the Mark43 Materials by any party who is in direct competition with Ma rk43, except with Mark43's prior written consent.
Subscriber shall comply with all additional restrict ions relating to its use of any Mark43 Integrated Applications and Subscriber Integrated Applications.
2.6 Security Obligations. Subscriber and its Authorized Users s hall securely manage their respective password(s) for access to the Applications. Subscriber shall notify Mark43 as soon as practicable in the event it becomes aware of any unauthorized access or use of the Applications, or of any of its or its Authorized Users’ passwords or accounts. Un less expressly stated otherwise in the applicable Order Form, a single username or password may not be used by more than one (1) Authorized User.
In addition, Authorized Users may log into the Applications from only one location at any given time; concurrent usage (or sign in) under a single user name is prohibited, unless Subscriber has a business justification for concurr ent usage, in which case Subscr iber must obtain Mark43’s prior written approval for such usage. Subscriber is re sponsible for all activities conducted using its and its Authorized Users’ user account s in use of the Applications. S ubscriber shall comply with all
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4 Applicable Laws in connection with use of the Serv ices and Applications, including all those related to data privacy and the transmission of technical or personal data. Subscriber agrees to (a) provide true, accurate, current and complete registration data for each account it creates via the Applications, and (b) maintain and promptly update the registrati on data to keep it true, accurate, current and complete.
2.7 Changes to SaaS Services . Mark43 may make changes and Updates to the Applications and SaaS Services, provided that it does not materially derogate the overall quality of the Applications or SaaS Services. Mark43 does not guarantee that the App lications or SaaS Services are or will remain compatible with any particular third-party softw are or equipment, and may, upon written notice, terminate its support for any software or equipment of Subscriber that Mark43 determines are incompatible with the operation of the SaaS Services.
2.8 Data Sharing . Mark43 will allow Subscriber to grant Aff iliated Agencies specified levels of access to Subscriber Data pursuant to an executed dat a-sharing agreement between Subscriber and the applicable Affiliated Agency, and with permissions su bject to the parameters laid out in such data- sharing agreement. Subscriber shall provide Ma rk43 with a copy of the executed data-sharing agreement prior to Mark43’s allowing of any such data-sharing. As between Mark43 and Subscriber, Subscriber will be solely responsible for any damages , losses and liabilities that arise as a result of such data-sharing. For the avoidance of doubt, in the event Subscriber enables Affiliated Agencies to access Subscriber Data without providing proof of a data-sharing agreement, Subscriber shall be solely responsible for any damages, losses and liabilities that arise as a result of such data-sharing.
2.9 No Charge Access . If any Applications or SaaS Servic es are provided or made available to Subscriber for pilot, evaluation, beta, pre-release, or otherwise for free, as identified by Mark43 (each, a “Pilot Service”), Mark43 hereby grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicensable right to access and use such Pilot Service pursuant to the terms of this Agreement, solely for the purpose of internally evaluating t he Pilot Service in consider ation of a purchase of a full, non-evaluation subscription to such Pilot Service (“ Non-Pilot Subscription”). Notwithstanding the foregoing or any other provision set forth herein, Subscriber acknowledges and agrees: (a) that such access and use right will terminate on the end date of the predetermined period set forth in the applicable Order Form or otherwise agreed in writing by the parties (“ Pilot Term ”), or may be terminated earlier upon written notice provided by either party to the other; (b) that such Pilot Service and any associated Documentation are provided to Subscriber “AS IS” and “AS AVAILABLE” without any Mark43 warranties, indemnification obligations, or support obligations of any kind, express or implied; and (c) that in no event will Mark43’s or any of its suppliers’ total and aggregate liability arising out of or related to such Pilot Service exceed $1,000. The parties may agree in the applicable Order Form or otherwise in writing for Subscriber’s use of the Pilot Service to convert automatically into a Non-Pilot Subscription upon the expiration of the Pilot Term without having to enter into an additional Order Form. Except to the extent such te rms conflict with this Section, all other terms of this Agreement will apply to each such Pilot Service.
3. PROPRIETARY RIGHTS.
3.1 Ownership of Subscriber Data. As between Mark43 and Subscriber, Subscriber owns the Subscriber Data. Subscriber hereby grants to Ma rk43, a royalty-free, worldwide, non-transferable (except as permitted by Section 11.2), non-sublicensable (except to Mark43’s contractors on a need- to-know basis to assist Mark43 in providing the Se rvices), license to use the Subscriber Data to configure and provide the Services to Subscriber, to prevent or address service or technical problems, in accordance with this Agreement and the Documentation, and otherwise in accordance with Subscriber’s requests or instructions. Mark 43 may also use Subscriber Data in anonymized and/or aggregated form to develop analytics and improvements that may be used in connection with the Mark43 products and services, provided that Mark43 may not sell or offer for sale any Subscriber Data on a standalone basis, whether in Subscriber identifiable, or anonymized and aggregated form.
3.2 Ownership of and Reservation of Rights to Mark43 Materials. As between Mark43 and Subscriber, Mark43, its Affiliates or its or their suppliers own all right, title and interest in and to the Mark43 Materials and all related technology and Intell ectual Property Rights. Subject to the limited rights expressly granted hereunder, Mark43, its Affiliates and its and their suppliers reserve all rights, title and interest in and to the Mark43 Materials and all related technology and Intellectual Property Rights. No rights or licenses are granted to Sub scriber hereunder other than as expressly set forth in this Agreement.
3.3 Subscriber Feedback . Subscriber and its Authorized Users may elect to provide Mark43 with suggestions, enhancement requests, recommendations and other feedback concerning the Mark43
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5 Materials (the “ Subscriber Feedback ”). Subscriber hereby assigns and agrees to assign all Subscriber Feedback and all Intellectual Proper ty Rights therein to Mark43 without lien or encumbrance and agrees that Subscriber Feedback will be the sole property of Mark43 and that Mark43 may use Subscriber Feedback in its discretion without obligation to Subscriber. Mark43 has no obligation to make Subscriber Feedback an improvement. For the avoidance of doubt, Subscriber Feedback does not constitute Confidential Information of Subscriber hereunder.
3.4 Usage Data . Mark43 may collect certain information in connection with Subscriber’s access to or use of the Services, such as access records, date and time stamps, transaction and activity records and system performance data (“Usage Data”). As between Mark43 and Subscriber, Mark43 owns all Usage Data. Mark43 will provide Subscriber with access to those subcategories of Usage Data to which Subscriber must be granted access in accordance with the Criminal Justice Information Services (“CJIS”) Security Policy.
3.5 AI Usage . (a) Mark43 shall maintain documentati on consistent with i ndustry standards and applicable governmental guidance describing t he functionality, limitations, and known risks associated with the use of AI features included in the Services and shall provide such documentation upon reasonable request; (b) AI-generated outputs are probabilistic in nature and may be incomplete or inaccurate. Subscriber is responsible for re viewing and verifying such outputs and for exercising independent judgment in all decisions made in reliance on the Services; (c) Mark43 shall implement reasonable measures consistent with industry standards and ap plicable governmental guidance to identify and address risks related to bias, hallucinations, and inaccurate outputs; (d) Mark43 shall not use Subscriber Data to train or improve AI Models without Subscriber’s written consent; and (e) The parties shall reasonably cooperate with respect to applicable federal and state laws and guidance relating to the use of AI.
3.6 Data Security . Terms applicable to the privacy and security of Subscriber Data are set forth in Mark43’s data processing addendum set forth at https://mark43.com/data-processing-addendum/, which is incorporated herein by this reference, and which may be updated from time to time by Mark43, provided such updates do not materially degrade Mark43’s data security obligations (the “Data Processing Addendum”).
4. INTEGRATED APPLICATIONS.
4.1 Mark43 Integrated Applications . Mark43 Integrated Applications may be included by Mark43 and provided or made available to Subscriber throug h the SaaS Services. In connection with the functionality provided by or through such Mark43 Integrated Applications, Subscriber hereby accepts and agrees to be bound by the terms and conditions applicable to such Mark43 Integrated Applications as set forth at https://mark43.com/integrated-application-terms/ which may be updated from time to time upon reasonable advance writt en notice (email acceptable) to Subscriber (the “Mark43 Integrated Application Terms”). In the event of any inconsistency or conflict between the applicable Mark43 Integrated Application Terms and the terms of this Agreement, the Mark43 Integrated Application Terms shall govern with re spect to Subscriber’s access to and use of the applicable Mark43 Integrated Application.
4.2 Subscriber Integrated Applications; Third-Party Data . To the extent Subscriber installs, links to or enables any Subscriber Integrated Application for use with the Applications or SaaS Services, Subscriber grants and agrees to grant (and wil l cause the applicable Subscriber Integrated Application Provider to grant) to Mark43 permission to access, retrieve, view, store, copy, modify and process Subscriber Integrated Application Data from Subscriber’s existing account(s) on each such Subscriber Integrated Application to the extent necessary to facilitate the interoperation of such Subscriber Integrated Application with the Applications or SaaS Services. To the extent Subscriber requires a Subscriber Integrated Application Provider’s assistance to install, link to or enable any Subscriber Integrated Application for use with the A pplications or SaaS Services, Subscriber shall separately contract with each such Subscriber Integrated Application Provider for any such assistance. In no event will Mark43 be responsible or liable for any Subscriber Integrated Application or any Subscriber Integrated App lication Data or other Third-Part y Data, or for any failure of a Subscriber Integrated Application to properly interoperate with any Application or the SaaS Services; provided, however, to the extent that Mark43 creates, pursuant to a Statement of Work, an interface for a Subscriber Integrated Application, Mark43 shall be responsible for such interface only, subject to the terms and conditions of this Agreement and the applicable Statement of Work. Mark43 may at any time, in its sole reasonable discretion, incl uding upon the request of a Subscriber Integrated Application Provider or due to an actual or potential security threat, disable any connection between a Subscriber Integrated Application and the Applications or SaaS Services, and any access, retrieval and viewing of Subscriber Integrated Application Da ta via the Applications or SaaS Services. For
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6 the avoidance of doubt, Subscriber’s access to and use of Subscriber Int egrated Applications and Subscriber Integrated Application Data shall be at Subscriber’s sole risk and subject to the terms and conditions of Subscriber’s s eparate agreement(s) with the applic able Subscriber Integrated Application Providers.
5. FEES AND PAYMENT TERMS .
5.1 Fees for the Services . Subscriber will pay the fees as stated in the relevant Order Form (the “Fees”) in accordance with the payment schedules set forth therein. Mark43 will invoice Subscriber for Fees in accordance with the invoice schedules set forth in the relevant Order Form. Except as expressly set forth herein, all payment obligations are no n-cancelable and all payments of Fees are non- refundable. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars.
5.2 Overdue Payments . Any payment not received from Subscriber by the due date shall accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Applicable Law, whichever is lower, from the date such payment was due until the date paid.
5.3 Taxes. Subscriber will pay all taxes, including sale s, use, excise, and other governmental fees, duties, and charges (and any penalties, interest, and other additions thereto) that are imposed on Subscriber or Mark43 with respect to the transactions and payments under this Agreement (excluding taxes based on Mark43’s income or employment) (“Taxes”). All Fees are exclusive of Taxes. If any such Taxes are required to be withheld on any payment, Subscriber will pay such additional amounts as are necessary so that the net amount received by Mark43 is equal to the amount then due and payable under this Agreement.
6. TERM AND TERMINATION.
6.1 Term.
(a) Term of this Agreement . This Agreement begins on the E ffective Date and, unless terminated earlier in accordance with the terms of this Agr eement, will continue until the expiration of all periods of performance specified in an Order Form (the “Term”). (b) Term of Order Forms . The initial term of each Order Form will commence on the start date set forth in such Order Form and, unless earlier termi nated in accordance with the terms of this Agreement, will remain in effect through the “end date” specified therein, and will renew per the terms specified therein.
6.2 Termination; Suspension of Services .
(a) Termination for Breach by Either Party. Either party may terminate this Agreement or an Order Form upon written notice to the other party, if the other party materially breaches this Agreement and such breach remains uncured for thirty (30) days after the other party’s receipt of such notice. (b) Termination for Non-Appropriation. If Subscri ber is a government agency, Subscriber’s payment obligations under this Agreement extend only to funds appropriated annua lly by Subscriber or Subscriber’s governing body for the purpose of this Agreement. For each succeeding fiscal period covered by this Agreement, Subscriber agr ees or shall cause the applicable agency or department responsible for Subscriber’s payment obligations under this Agreement to agree to include in its budget request appropriations sufficient to cover Subscriber’s annual financial obligations under this Ag reement. If, after making reasonable e fforts to obtain re levant funding, Subscriber is appropriated insufficient funds to continue annual payments under a specific Order Form, Subscriber may terminate that Order Form by giving Mark43 not less than thirty (30) days’ prior written notice. Upon termination under this paragraph, Subscriber shall compensate Mark43 or, where applicable, its reseller or distributor for all Services rendered prior to the effective date of termination the Fees for which remain outstanding.
(c) Suspension of Services. To the extent permitt ed by Applicable Law, in addition to any other rights or remedies it may have under this Agreem ent or Applicable Law, Mark43 may immediately suspend provision of the Services without liability to Subscriber: (a) if Subscriber’s account is more than sixty (60) days past due, until paid in full; (b) if Subscriber breaches Section 2.5 (Restrictions on Use) or Section 2.6 (Security Obligations); (c) to avoid harm or liability to Mark43, its Affiliates or its other custom ers, including in the case of denial of service attacks or other disruptions; or (d) if required by Applicable Law or a governmental authority. Subscriber shall remain liable for any Fees and other amounts payable under this Agreement during any period of suspension. Mark43 will use commercially reasonab le efforts to restore Subscriber’s rights to
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7 use and access those portions of the Services or accounts that gave rise to the suspension promptly after Subscriber has resolved the problem giving rise to the suspension.
6.3 Effect of Termination . In the event of any termination or expiration of this Agreement, (a) Subscriber will pay all amounts payable hereunder as of the termination or expiration date; (b) All rights, licenses and access granted hereunder to Subscriber (as well as all rights granted to any Authorized Users of Subscriber) will immediately cease, including but not limited to all use of the Mark43 Materials;
(c) Upon Subscriber’s written request prior to the effective date of termi nation, Mark43 will provide Subscriber with a copy of the Subscriber Data within ninety (90) days of the effective date of termination; and
(d) Subscriber will either return to Mark43 or at Mark43’s option, destroy, all documents, computer files and other materials containing any Conf idential Information of Mark43 that are in Subscriber’s possession or control. Upon the written request of Mark43, Subscriber will provide a written certification of its compliance with this paragraph.
6.4 Survival. This Section 6.4 and the following sections will survive any termination or expiration of this Agreement: Section 3 (“Proprietary Rights”), Section 4 (“Integrated Applications”), Section 5 (“Fees and Payment Terms”), Section 6.3 (“Effect of Termination”), Section 7 (“Confidentiality”), Section 8.3 (“Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“I ndemnification”), and Section 11 (“Miscellaneous”).
7. CONFIDENTIALITY.
7.1 Definition of Confidential Information. For the purposes of this Agreement, “ Confidential Information” means: (a) with respect to Mark43, the Mark43 Materials, and any and all source code relating thereto, as well as any non-public information or material regarding Mark43’s legal or business affairs, products, technology, financing, pricing, customers, properties or data, and (b) with respect to Subscriber, the Subscriber Data and any non-public information or material regarding Subscriber's legal or business affairs, technology , properties or data. Notwithstanding any of the foregoing, Confidential Information does not inclu de information which: (i) is generally publicly available at the time of disclosure or becomes ge nerally publicly available after disclosure through no fault of the party to which the Confidential Information has been disclosed (the “Receiving Party”); (ii) is documented as being known to the Receiving Party free of any confidentiality obligations prior to its disclosure by the other party (the “Disclosing Party”); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party, fr ee of any confidentiality obligations, from a third person who was rightly in possession of such information.
7.2 Use and Disclosure of Confidential Information. The Receiving Party will, with respect to all Confidential Information disclosed by the Disclosing Party before or after the Effective Date: (i) use such Confidential Information only to perform its obligations or exercise its rights under this Agreement; (ii) subject to Section 7.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those of the Receiving Party’s employees and independent contractors who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement and who are subject to confidentiality obligations with respect to such Confidential Information no less restrictive than those set forth herein; and (iii) except as expressly provided herein, not disclose such C onfidential Information to any third party unless authorized in writing by the Disclosing Party to do so.
7.3 Protection of Confidential Information. The Receiving Party will protect the confidentiality of all Confidential Information disclosed by the Disclosing Pa rty using at least the degr ee of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
7.4 Employee and Independent Contractor Compliance. The Receiving Party will, prior to providing any employee or independent contractor access to any Confidential Information of the Disclosing Party in accordance with Section 7.2, inform su ch employee or independe nt contractor of the confidential nature of such Confidential Info rmation and require such employee or independent contractor to comply with the Receiving Part y’s obligations hereunder with respect to such Confidential Information.
7.5 Compelled Disclosure . A disclosure by one party of Confiden tial Information of the other party to the extent required by A pplicable Law will not be considered a breach of this Agreement, provided
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8 the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s request and cost, if the other party wishes to contest the disclosure.
7.6 Public Records .
(a) Subscriber is a public agency subject to the California Public Records Act (Government Code section 7920.000 et seq. ). Subscriber shall apply any applic able exemptions from disclosure under the California Public Records Act, includi ng exemptions that may protect trade secrets, proprietary information, confidential commercial in formation, cybersecurity information, or other information exempt from disclosure under applicable law. To assist Subscr iber in administering requests for public records, Mark43 shall clearly identify in writing any information it believes constitutes trade secrets or other information ex empt from disclosure under applicable law and provide the legal basis for such designation upon Subscriber's reasonable request. Such designation shall not relieve Subscriber of it s independent obligation to determine whether records are subject to disclosure under applicable law. (b) Subscriber will use reasonable e fforts to notify Mark43 if it receives a Public Records Act request specifically seeking Mark43's proprietary softwar e, source code, security configurations, or Documentation, to the extent permitted by law and practic able within Subscriber's standard response process.
7.7 CJIS Standards; Employee Background Checks.
(a) Subscriber understands and agrees that Mark 43 utilizes Cloud Providers (as defined in the Data Processing Addendum) to host the Applications, SaaS Services and Subscriber Data. (b) Subscriber may request reasonable records from Mark43 from time to time to assess Mark43’s adherence to requirements of the applicable CJIS Security Policy promulgated by the FBI. For the avoidance of doubt, Subscriber may need t he consent of Cloud Providers to obtain any records or information from Cloud Providers.
(c) Subscriber will have the opportunity to run, at Subscriber’s expense, reasonable background checks on Mark43 employees who will have direct a ccess to Subscriber Data in Subscriber’s production environment (such employees, the “Covered Employees”), provided that:
(i) If Subscriber is in a State that oper ates a statewide CJIS vendor clearance program, and Mark43 is enrolled and in good stand ing with such program, Subscriber agrees to rely on the State’s confirmation of clearance for Covered Employees. Subscriber will not require additional background checks at the local or agency level, unless otherwise required by applicable law.
(ii) Mark43’s obligation in support of background checks conducted by Subscriber, if necessary, shall be limited to providing the following: a signed CJIS Security Addendum, a CJIS Security Awareness Training certificate, a copy of government-issued photo ID, one FD-258 fingerprint card, and only such additional documentation as is required by applicable state law or published state CJIS policy. Mark43 shall not be required to provide any other personnel or background documentation and shall not be required to make Covered Employees available for interviews, whether in person, by phone, or otherwise.
(iii) For any background check conducted under this Section 7.7(c), Mark43 may assume that a Covered Employee has been cleared by Subscriber if Mark43 does not receive an adverse response from Subscriber within thirty (30) days of submitting the documentation described in Section 7.7(c)(ii).
8. REPRESENTATIONS AND WARRANTIES.
8.1 Power and Authority. Each party represents and warrants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder and that the person signing this Agreement on behalf of the par ty has the authority to bind that party. Subscriber represents and warrants t hat it has obtained, and shall have throughout the Term, all necessary approvals, consents, and authorizations necessary for procurement under this Agreement and that its obligations under this Agreement do not, and sh all not, exceed any budget authority limitations during the Term of this Agreement.
8.2 Services Warranty .
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9 (a) Mark43 represents and warrants that the Applic ations and SaaS Services will be made available to Subscriber in all material respects in accord ance with the Documentation. Subscriber’s sole remedy and Mark43’s sole obligation with respect to a breach of the foregoing warranty is for Mark43, through the Support Services, to use commercially reasonable efforts to remedy the breach within a commercially reasonable amount of time. (b) Mark43 represents and warrants that the Profession al Services will be provided in a professional manner and that for a period of thirty (30) days from Go Live (the “Warranty Period”), the Work Product will operate in material accordance wit h the specifications provided by Mark43 or otherwise agreed between the parties in writing (inc luding in the applicable Statement of Work).
Subscriber’s sole remedy and Mark43’s sole obligation with respect to a breach of the foregoing warranty is for Mark43 to use commercially reasonable efforts to work with Subscriber to resolve the issue causing such breach within a commercially reasonable amount of time . After the Warranty Period, if Subscriber experiences any issue with the Work Product, the parties must enter into a new Statement of Work to address such issues at Mark43’s then-current Professional Services pricing. For clarity, Mark43’s Support Services do not apply to or provide support for any Professional Services or Work Product.
8.3 Disclaimer . USE OF THE MARK43 MATERIALS IS NOT, AND IS NOT INTENDED TO BE, A
SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF AUTHORIZED PARTIES, INCLUDING DISPATCHERS, LAW ENFORCEMENT OFFICERS, INVESTIGATORS OR FIRST RESPONDERS.
THE MARK43 MATERIALS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND THE DATA PROVIDED OR MADE AVAILABLE BY MA RK43 OR ITS SUPPLIERS IN CONNECTION WITH THE MARK43 MATERIALS SHOULD NOT REPLACE OTHER EMERGENCY INFORMATION AND SHOULD NOT BE EXCLUSIVELY RELIED -UPON IN AN EMERGENCY SCENARIO.
SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ALL ITS OWN ACTIONS OR FAILURE TO ACT IN CONNECTION WITH ITS AND ITS AUTHORIZED USERS’ USE OF THE MARK43
MATERIALS AND ANY THIRD-PARTY DATA, I NCLUDING WITH RESPECT TO COMPLIANCE WITH APPLICABLE LAWS, AND MARK43 AND ITS SUPPLIERS ASSUME NO RESPONSIBILITY, LIABILITY OR RISK FOR SUBSCRIBER’S USE OR MISUSE OF, OR FAILURE TO USE, THE INFORMATION PROVIDED OR MADE AVAILABLE BY MARK43 OR ITS SUPPLIERS THROUGH THE MARK43 MATERIALS OR ANY THIRD-PARTY DATA. SUBSCRIBER AND THE APPLICABLE
AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR, AND SUBSCRIBER WILL BE SOLELY LIABLE FOR, (a) VERIFYING THE ACCURACY, COMPLETENESS, AND SUITABILITY OF ANY DATA USED IN CONNECTION WITH THE SER VICES, AND (b) ANY CONSEQUENCES OF A “HARD DELETE” (i.e., WHEN DATA IS PERMANENTLY REMOVED FROM A DATABASE) OF ANY
SUBSCRIBER DATA PERFORMED BY OR AT THE REQUEST OF SUBSCRIBER OR ANY OF ITS AUTHORIZED USERS. SUBSCRIBER ACKNOW LEDGES THAT THE MARK43 MATERIALS DO NOT CONTAIN OR PROVIDE LEGAL ADVICE . EXCEPT FOR THE LIMITED WARRANTIES PROVIDED BY MARK43 IN SECTION 8.1 AND SECTION 8.2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARK43 AND ITS SUPPLIERS MAKE NO WARRANTIES OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTI CULAR PURPOSE WITH RESPECT TO THE MARK43 MATERIALS. MARK43 AND ITS SUPPLIERS DO NOT WARRANT THAT THE MARK43 MATERIALS WILL BE ERROR FREE OR UNINTE RRUPTED. MARK43 AND ITS SUPPLIERS
SHALL NOT BE LIABLE FOR DELAYS, INTERRUP TIONS, SERVICE FAILURES OR OTHER
PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF THEIR REASON ABLE CONTROL. NEITHER MARK43 NOR
ANY OF ITS SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER TO SUBSCRIBER OR ANY OTHER PARTIES WITH RESPECT TO ANY MARK43 INTEGRATED APPLICATIONS, MARK43 INTEGRATED APPLIC ATION DATA, SUBSCRIBER INTEGRATED
APPLICATIONS, SUBSCRIBER INTEGRATED APPL ICATION DATA, OR ANY THIRD-PARTY DATA.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND APPLICATIONS
MAY INCLUDE, INCORPORATE, AND/OR BE DERIVED FROM, AND THAT IN PROVIDING THE SERVICES MARK43 MAY UTILIZE OR EMPLOY, SYSTEMS, APPLICATIONS, MODELS (INCLUDING LARGE LANGUAGE MODELS), ALGORITHMS, TO OLS, OR SERVICES THAT
PERFORM TASKS COMMONLY ASSOCIATED WITH HUMAN INTELLIGENCE, SUCH AS
LEARNING, REASONING, PREDICTIVE ANALYT ICS, OR GENERATIVE CONTENT CREATION (“AI TECHNOLOGY”). SUBSCRIBER FURTHER ACKNOWLEDGES AND AGREES THAT AI
TECHNOLOGY, AS WELL AS ANY DATA, RECOMME NDATIONS, PREDICTIONS, TEXT, OR
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10 OTHER MATERIAL PRODUCED, IN WHOLE OR IN PART, THROUGH THE USE OF AI TECHNOLOGY (“AI-GENERATED OUTPUT”), ARE PROBABILISTIC IN NATURE AND MAY GENERATE INCOMPLETE, INACCURATE, OR INAPPROPRIATE RESULTS. ACCORDINGLY, AI TECHNOLOGY AND AI-GENERATED OUTPUT AR E PROVIDED “AS IS”. MARK43 MAKES NO
WARRANTIES, REPRESENTATIONS, GUARAN TEES, OR COVENANTS OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO AI
TECHNOLOGY OR AI-GENERATED OUTPUT, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OR REPRESENTATION THAT AI -GENERATED OUTPUT WILL BE ACCURATE,
COMPLETE, ERROR-FREE, RELIABLE, CURRENT, FIT FOR A PARTICULAR PURPOSE, NON- INFRINGING, OR COMPLIANT WITH SU BSCRIBER’S INTERNAL POLICIES OR ANY APPLICABLE LAW OR REGULATION.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MARK43'S OR ANY OF ITS SUPPL IERS’ TOTAL AND AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGR EEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AM OUNT OF FEES RECEIVED BY MARK43 PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST DATE ON WHICH SUCH LIABILITY ARISES. THE FOREGOING
LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES BEING
AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THAT LIMIT. NEITHER MARK43 NOR ANY PROVIDER OF ANY MARK43 INTEGRATED APPLICATIONS, MARK43 INTEGRATED APPLICATION DATA,
SUBSCRIBER INTEGRATED APPLICATIONS, OR SUBSCRIBER INTEGRATED APPLICATION
DATA SHALL HAVE ANY LIABILITY TO SUBS CRIBER OR ANY OTHER PARTY UNDER THIS AGREEMENT ARISING OUT OF OR RELATING TO SUBSCRIBER’S USE OF SUCH INTEGRATED APPLICATIONS OR DATA, OR FOR ANY OTHER THIRD-PARTY DATA.
9.2 Exclusion of Damages . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MARK43 OR ITS SUPPLIERS HAVE ANY LIABILITY TO SUBSCRIBER OR ANY
OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL
DAMAGES, OR FOR ANY LOST PROFITS, LO SS OF USE, LOSS OF DATA, OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR SER VICES, WHETHER IN CONTRACT, TORT
OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE MARK43 MATERIALS, SERVICES, OR THIRD-
PARTY DATA, OR FOR ANY INTERRUPTION, IN ACCURACY, ERROR OR OMISSION IN THE USE THEREOF, EVEN IF MARK43 OR ITS SUPPLIERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.3 Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECT ION 9.1 AND SECTION 9.2 SH ALL NOT APPLY TO MARK43’S
LIABILITY FOR ITS INDEMNITY OBLIGAT IONS UNDER THIS AGREEMENT, ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. INDEMNIFICATION .
10.1 Indemnification by Mark43 . Mark43 shall defend and hold harmless Subscriber, and its employees, officers, and directors (the “Subscriber Indemnified Parties”) against any third-party claim (each, a “Third-Party Claim ”) brought against them, and shall indem nify the applicable Subscriber Indemnified Parties for all losses, damages and ex penses (including reasonable attorneys’ fees) (“Losses”) arising from such Third-Party Claim, to t he extent such Third-Pa rty Claim alleges that Subscriber’s use of an Application as provided by Mark43 and when used in accordance with the Documentation and in compliance with this Agreement infringes that third party’s U.S. copyright, U.S. patent issued as of the Effective Date, or U.S. trademark, or misappropriates that third party’s trade secret. Mark43 shall have no obligation or liability under this Section 10.1 (Indemnification by Mark43) to the extent the Third-Pa rty Claim arises from: (a) Subscriber’s or any Authorized User’s failure to incorporate any Update made available by Mark43 that would have avoided the alleged infringement or misappropriation; (b) modification of the Ap plications by anyone other than Mark43; (c) specifications, instructions, features, functions or designs or other elements provided by or requested by Subscriber or any of its Authorized Users; (d) use of the Applications in combination with any other product, service, data, process or material not provided by Mark43 (including any Subscriber Integrated Applications or Subscriber Integrated Application Data or any other Third-Party Data); or (e) use of the Applications in a manner not contemplated by this Ag reement or the Documentation.
If any of the Applications are (or Mark43 reasonably believes are likely to become) the subject of a
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11 claim for which Mark43 would be obligated to defen d and indemnify pursuant to this Section, then Mark43 may, at its sole option, obtain for Subscriber the right to continue use of such Applications or replace or modify such Applications, as applicable, provided there is no material loss of functionality.
10.2 Indemnification by Subscriber . To the extent consistent with Applicable Law, Subscriber shall defend and hold harmless Mark43, its Affiliates, supp liers, and their respective employees, officers, and directors (the “ Mark43 Indemnified Parties ”) against any Third-Party Claim brought against them, and shall indemnify the applicable Mark43 Indemnified Parties for all Losses arising from such Third-Party Claim, to the extent such Third-Party Claim arises out of or is related to (a) Subscriber’s breach of Section 2.5 (Restrictions on Use), Sect ion 2.6 (Security Obligat ions) or Section 3.2 (Ownership of and Reservation of Rights to Mark43 Materials); (b) Mark43’s, Subscriber’s or any Authorized User’s use or processing of any Subscriber Data, Subscriber Integrated Applications, or Subscriber Integrated Application Data, including any Third-Party Claim alleging that any Subscriber Data, Subscriber Integrated Applic ations, or Subscriber Integrat ed Application Data infringes, misappropriates or violates the rights, including In tellectual Property Rights or privacy rights, of a third party or violates any Applicable Law; or (c) Mark43’s disabling a connection to a Subscriber Integrated Application at Subscriber’s request.
10.3 Procedures . Each indemnified party shall give the indem nifying party prompt written notice of any Third-Party Claim to which an indemnification obligation under this Section 10 (Indemnification) may apply and shall reasonably cooperate with the indemnif ying party, at its expense, in the defense or settlement of any such Third-Party Claim. An indemnifying party’s obligations under this Section 10 (Indemnification) will be diminished to the extent that it is materially prejudiced by the indemnified party’s non-compliance with the foregoing procedures.
11. MISCELLANEOUS .
11.1 Notices . Unless otherwise specified herein, all not ices and other communications between the parties required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by (i) personal service, (ii) registered or certified mail, postage prepaid, return receipt requested, or (iii) nationally reco gnized private courier service, to the respective addresses of the parties set forth below, with, in each case, a copy to the email addresses provided below. Each party may designate a new address by lik e notice; each party may also designate a new address in an Order Form, provided that the new address is expr essly noted as being for such purpose. Notices given hereunder will be effective upon (a) receipt by t he party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first. For notices relating to Security Incidents (as defined in the Data Processing Addendum), notice shall be sent exclusively to the email address(es) specified as the security contact below.
If to Mark43:
Mark43, Inc.
8 West 40th Street
2nd Floor
New York, NY 10018
Attn: CFO
Email: [email protected]
Copy to:
Mark43, Inc.
8 West 40th Street
2nd Floor
New York, NY 10018
Attn: General Counsel
Email: [email protected]
If to Subscriber:
City of Richmond Community Crisis
Response Program
450 Civic Center Plaza
Richmond, CA 94804
Copy to:
N/A
Subscriber Security Contact:
Name: Joan Binalinbing
Email: [email protected]
11.2 Assignment. Neither party may assign or otherwise tran sfer any of its rights or obligations under this Agreement without the prior, written consent of the other party ; provided, however, that a party may, without the consent of the other party, assign or otherwise transfer this Agreement in its entirety to any of its Affiliates or to an entity with or into which it is merged or consolidated or to which it sells
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12 all or substantially all of its assets, stock or other equity interests. Any assignment or other transfer in violation of this section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the par ties hereto and their permitted successors and assigns.
11.3 Governing Law . This Agreement will be governed by the internal laws of the state in which Subscriber is geographically located, and any dis putes between the parties may be resolved in a state or federal court of competent jurisdiction within such state. EACH PARTY HEREBY WAIVES
ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.4 Dispute Resolution . Prior to the initiation of any legal proceeding other than one for equitable relief as described in subsection (d) below, the parties shall first attempt to resolve their dispute informally, as follows:
(a) Within five (5) business days following the writt en request of a party, designated individual(s) from Mark43 and Subscriber shall meet to resolve such dispute. (b) The representatives referred to in paragraph (a) shall meet as often as the parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter at issue that the parties believe to be appropriate and germane in connection with its resolution. The representatives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of formal legal proceedings. The specified format for the discussions will be left to the discretion of the designated representatives, but may include the preparation of agreed upon statements of fact or written statements of position. (c) If the representatives referred to in paragraph (a) above are unable to resolve the dispute within thirty (30) days after the dispute is escalated to them, then either party may escalate the dispute to the Chief Financial Officer or similar of Ma rk43 and the Chief or Sheriff or comparable Subscriber official, for their review and resolution.
(d) The provisions of this Secti on 11.4 shall not be construed to prevent a party from instituting, and a party is authorized to institute, judicial or other proceedings either to (i) seek injunctive relief or (ii) avoid the expiration of any applicable legal or contractual limitations period.
11.5 Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, epidemics, pandemics, governm ental acts that are not caused by or within the control of the nonperforming party, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the contro l and not caused by t he negligence of the non- performing party.
11.6 No Waiver . The failure of either party to enforce at any time for any period any provision hereof will not be construed to be a waiver of such provision or of the right of such pa rty thereafter to enforce each such provision, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver of any rights is to be charged against any party unless su ch waiver is in writing signed by an authorized representative of the party so charged.
11.7 Amendment . No modification, change or amendment to this Agreement shall be effective unless in writing signed by duly authorized representatives of each of Subscriber and Mark43. No term included in any invoice, estimate, confirmation, acceptance, purchase order or any other similar document (other than Order Forms or Statements of Work) in connection with this Agreement will be effective unless expressly stated otherwise in a separate writing si gned by duly authorized representatives of each of Subscriber and Mark43.
11.8 Relationship of the Parties . The relationship of the parties established by this Agreement is that of independent contractors and not hing contained herein will be construed to (a) give any party any right or authority to create or assume any obligat ion of any kind on behalf of any other party or (b) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
11.9 Use of Vendors . Subscriber agrees that Mark43 may provide information, data and materials that Mark43 receives in connection with this Agreement (including Subscriber Data) to draw on the resources of, and subcontract certain of its oblig ations hereunder to, its Affiliates and independent contractors engaged by Mark43 (each, a “ Mark43 Vendor ”) for internal, administrative and compliance purposes or in connection with the hosti ng or provision of the SaaS Services and other
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13 products and services to be provided by Mark 43 pursuant to this Agreement. Mark43 shall be responsible in accordance with the terms of this Agreement for each Mark43 Vendor’s compliance with the terms of this Agreement and for its acts and omissions that cause Mark43 to breach its obligations under this Agreement.
11.10 Severability . Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction will, to the extent the economic benef its conferred thereby to the parties remain substantially unimpaired, be ineffective to the ex tent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining te rms and provisions or affecting the validity or enforceability of any of such terms or provisions in any other jurisdiction.
11.11 Headings; Construction . The titles and headings contained in this Agreement are for reference purposes only and shall not in any manner limit the construction or interpretation of this Agreement.
Use of the term “including” herein shall be deemed to be followed by “without limitation.”
11.12 Counterparts . This Agreement may be executed, including by electronic signature, in two or more counterparts, each of which shall be an original and all such counterparts together shall constitute one and the same instrument. Electronically exec uted or electronically transmitted (including via facsimile transmission) signatures have the full force and effect of original signatures.
11.13 Cumulative Remedies . All remedies for breach of this Agreement are cumulative, and may be exercised concurrently or separately, and the ex ercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
11.14 Export Compliance . In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export contro l laws and regulations, including the Export Administration Regulations, the International Tr affic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. When applicable, Subscriber will provide Mark43 with information about Subscriber’s export and distribution activities as may be required for Mark43 to meet its obligations under the United States export control laws and regulations.
11.15 Compliance with Laws . Each party shall comply with all Applicable Laws relating or pertaining to the performance of its obligations and the exercise of its rights under this Agreement. Subscriber shall ensure that its use of all Subscriber Data complies with all Applicable Laws relating to the privacy of third parties and the protection of thei r personal data promulgated by any governmental, municipal, or legal authority having jurisdiction over Subscriber or the Subscriber Data covered by this Agreement. Each party shall comply with lo cal anti-bribery laws as well as the U.S. Foreign Corrupt Practices Act, as well as any other Appl icable Laws and regulations. In connection with its performance under this Agreement, neither party shall directly or indirectly: (A) offer, pay, promise to pay, or authorize the payment of any money, gift or other thing of value to any person who is an official, agent, employee, or repres entative of any government or in strumentality thereof or to any candidate for political or political party office, or to any other person while knowing or having reason to believe that all or any portion of such money , gift or thing of value will be offered, given, or promised, directly or indirectly, to any such o fficial, agent, employee, or representative of any government or political party, political party official or candidate; (B) offer, promise or give any person working for, or engaged by, the other party a financial or other advantage to (i) induce that person to perform improperly a relevant function or activity; or (ii) reward that person for improper performance of a relevant function or activity; or (C) request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement. Each party r epresents and warrants that it shall be responsible for compliance with this provision by all third parties engaged by it to perform services related to this Agreement and shall require that such third parti es agree to comply with all legal requirements required of such party under this Agreement.
11.16 Entire Agreement . This Agreement supersedes all pr evious understandings, agreements and representations between the parties or any affiliates or agents thereof, written or oral, and constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and incorporates all represent ations, warranties, co venants, commitments and understandings on which they have relied in entering into this Agreement, and, except as provided for herein, neither party makes any covenant or ot her commitment concerning its future action nor does either party make any promises, representati ons, conditions, provisions or terms related thereto.
11.17 Supporting Documents .
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14 The following documents, along with all Order Forms and Statements of Work, are expressly incorporated into this Agreement and are collectively referred to herein as the “Supporting Documents:”
• Technical Requirements: https://mark43.com/tech-requirements • Support Services: https://mark43.com/support-services/ • Data Processing Addendum: https://mark43.com/data-processing-addendum/ • Mark43 Integrated Application Terms: https://mark43.com/integrated-application-terms/ This Agreement and the Supporting Documents sha ll be construed to be mutually complementary and supplementary whenever possible. In the even t of a conflict that c annot be resolved, the provisions of the body of this Agreement shall control over any co nflicting provisions in any of the Supporting Documents.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.
MARK43, INC. SUBSCRIBER
By: By:
Name:
Title:
Name:
Title:
Date: Date:
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT B
PAYMENT PROVISIONS
1. COMPENSATION TO CONTRACTOR:
a. Provided Contractor is not in default under this Contract, Contractor shall be compensated in the manner set forth herein.
b. All payments made pursuant to this Contract shall be subject to the Contract Payment Limit. The Payment Limit includes expenses (phones, photocopying, meals and travel, etc.). Invoices shall be adequately detailed, based on accurate records, and be in a form reasonably satisfactory to the City. Contractor may be required to provide back-up material upon request.
c. All City vendors receiving new contracts shall sign up to receive electronic payments through the City’s Automated Clearinghouse (ACH) payments service/provider.
2. SUBMISSION OF INVOICES:
Contractor shall submit timely invoices by email to
[email protected] and/or to the following address:
Attention: City of Richmond Finance/Account Payable
Project Manager: _______________________
P.O. Box 4046
Richmond, CA 94804
3. All invoices that are submitted by Contractor shall be subject to the approval of the City Project Manager, _______________________, before payments shall be authorized.
a. The City will pay invoice(s) within 45 days after completion of services to the City’s satisfaction. The City shall not pay late fees or interest.
b. All appropriate permits, certificates, and licenses, including a City business license shall be obtained and maintained for the duration of this Contract before any payment is authorized.
4. All insurance coverage required by this Contract shall be provided by the Contractor before this Contract is executed by the City. The insurance coverage required by this Contract shall be maintained by Contractor for the duration of this Contract and must be in place before any payment is authorized.
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT C
AUTHORIZED REPRESENTATIVES AND NOTICES
1. All required written notices shall be delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return receipt requested or with delivery confirmation requested from the U.S. postal service; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
2. Each notice shall be deemed to have been received on the earlier to occur of:
actual delivery or the date on which delivery is refused; or three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above (Sundays and City holidays excepted).
3. Either party may, at any time, change its notice address (other than to a post office box address) by giving the other party three (3) days prior written notice of the new address.
4. All notices, demands, requests, or approvals from Contractor to the City shall be addressed to the City at:
City of Richmond
450 Civic Center Plaza
Richmond, CA 94804
Email: ________________________________________________
5. All notices, demands, requests, or approvals from the City to Contractor shall be addressed to Contractor at:
Attn:
Email: ________________________________________________ Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT D
GENERAL CONDITIONS
1. INDEPENDENT PARTIES:
Contractor hereby declares that Contractor is engaged as an independent business and Contractor agrees to perform the services as an independent contractor.
The manner and means of conducting the services and tasks are under the control of Contractor except to the extent they are limited by statute, rule or regulation and the express terms of this Contract. No civil service status or other right of employment will be acquired by virtue of Contractor’s services. None of the benefits provided by the City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave, are available from the City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any compensation due to Contractor. Payments of the above items, if required, are the responsibility of Contractor.
2. TIME IS OF THE ESSENCE:
Contractor and the City agree that time is of the essence regarding the performance of this Contract.
3. STANDARD OF CARE:
Contractor agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals or service Contractors, as applicable, in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City.
4. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Contractor assumes all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Contractor shall indemnify, defend, and hold the City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Contractor.
5. NON-DISCRIMINATION:
Consistent with the City’s policy and state and federal law that harassment and discrimination are unacceptable conduct, Contractor and its employees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of any kind of any statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, Contract No: ________ For the Contract between the City of Richmond and
_____________________________
disability (both mental and physical) including HIV and AIDS, medical condition (e.g. cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation, military and veteran status or legitimate union activities. Contractor agrees that any violation of this provision shall constitute a material breach of this Contract.
6. CITY PROPERTY:
a. Each and every report, draft, work product, map, record, applicable plans, drawings, calculation, data, specification, video, graphic, or any other material or document produced, prepared or caused to be prepared by Contractor pursuant to or in connection with this Contract shall be the exclusive property of the City.
b. Notwithstanding the foregoing, Contractor shall not be obligated to provide to City proprietary software or data which Contractor has developed or had developed for Contractor's own use; provided, however, that Contractor shall, pursuant to Section 11 below, indemnify, defend and hold the City harmless from and against any discovery or Public Records Act request seeking the disclosure of such proprietary software or data.
c. No report, information or other data given to or prepared or assembled by Contractor pursuant to this Contract shall be made available to any individual or organization by Contractor without prior approval of the City Manager or their designee.
d. Contractor shall, at such time and in such form as City Manager or their designee may require, furnish reports concerning the status of services and tasks required under this Contract.
7. RECORDS:
a. Contractor shall maintain complete and accurate records with respect to the services, tasks, work, documents and data in sufficient detail to permit an evaluation of Contractor’s performance under the Contract, as well as maintain books and records related to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of the services and tasks under this Contract (collectively the “Records”).
b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to the Records to the representatives of the City or its designees during regular business hours upon reasonable prior notice. The City has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary, and to allow inspection of all proceedings and activities related to this Contract. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained by Contractor for a period of five (5) years after receipt of final payment.
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
c. If supplemental examination or audit of the Records is necessary due to concerns raised by the City’s preliminary examination or audit of records, and the City’s supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of this Contract or failure to act in good faith, then Contractor shall reimburse the City for all reasonable costs and expenses associated with the supplemental examination or audit.
8. PERMITS AND LICENSES:
Contractor, at its sole expense, shall obtain and maintain during the term of this Contract, all appropriate permits, certificates and licenses, including a City business license, required in connection with the performance of the services and tasks hereunder.
The failure to obtain such permits and licenses shall be a material breach of this Contract and grounds for immediate termination by City; provided, however, that City may waive the business license requirement in writing under unusual or extraordinary circumstances without necessitating any modification of this Contract to reflect such waiver.
9. TERMINATION:
a. Termination Without Default. Notwithstanding any provision herein to the contrary, the City may, in its sole and absolute discretion and without cause, terminate this Contract at any time prior to completion by Contractor of the project or services hereunder immediately upon transmission of written notice to Contractor as provided in Exhibit C “Authorized Representatives and Notices”.
b. Termination in the Event of Default. Should Contractor fail to perform any of its obligations hereunder, within the time and in the manner provided or otherwise violate any of the terms of this Contract, City may immediately terminate this Contract by giving written notice of such termination, stating the reasons for such termination. Contractor shall be compensated as provided in Exhibit B; provided, however, there shall be deducted from such amount the amount of damage, including attorney's fees, expert witness fees and costs, if any, sustained by City by virtue of Contractor's breach of this Contract. Additionally, in the event of such termination, the City may proceed with the work in any reasonable manner it chooses.
10. CONFLICT OF INTEREST:
Contractor acknowledges, represents and warrants that Contractor shall avoid all conflicts of interest (as defined under any federal, state or local statute, rule or regulation, or at common law) with respect to this Contract. Contractor further acknowledges, represents and warrants that no City official or employee has any economic interest, as defined in Title 2, California Code of Regulations §§ 18703.1 through 18703.5, with Contractor that would invalidate this Contract. Contractor acknowledges that in the event that Contractor shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Contract, all consideration received under Contract No: ________ For the Contract between the City of Richmond and
_____________________________
this Contract shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Contract for one (1) year.
11. HOLD HARMLESS:
a. To the fullest extent permitted by law, Contractor shall indemnify, defend (with counsel acceptable to the City) and hold harmless the City, its City Council, boards, commissions, officials, employees, agents and volunteers (“Indemnitees”) from and against any and all loss, damages, liability, obligations, claims, suits, judgments, costs and expenses whatsoever, including attorney’s fees and costs of litigation (“Claims”), arising from or in any manner connected to Contractor’s performance of its obligations under this Contract or failure to comply with any of its obligations under this Contract or out of the operations conducted by Contractor even if the City is found to have been negligent. If the Claims filed against Indemnitees allege negligence, recklessness or willful misconduct on the part of Contractor, Contractor shall have no right of reimbursement against Indemnitees for the costs of defense even if negligence, recklessness or willful misconduct is not found on the part of Contractor. Contractor shall not have any obligations to indemnify Indemnitees if the loss or damage is found to have resulted solely from the negligence or the willful misconduct of the City. The defense and indemnification obligations of this Contract are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Contract.
b. This indemnification obligation shall survive this Contract and shall not be limited by any term of any insurance policy required under this Contract; provided however, that if this Contract is for design professional services, this indemnity provision is limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the design professional (as defined in California Civil Code section 2782.8).
12. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT:
a. This Contract binds the heirs, successors, assigns and representatives of Contractor. The Contractor shall not enter into subcontracts for any work contemplated under this Contract and shall not assign this Contract, nor any portion hereof or monies due or to become due, without the prior written consent of the City Council or its designee.
b. Contractor shall not assign, sublease, hypothecate, or transfer this Contract, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of the City Manager. Contractor shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer.
The City Manager or their designee may consent or reject such request in their sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for Contract No: ________ For the Contract between the City of Richmond and
_____________________________
money against the City under this Contract may be assigned by Contractor to a bank, trust company or other financial institution without prior written consent.
c. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor (if applicable), or of the interest of any general partner or joint venturer or syndicate member if Contractor is a partnership or joint- venture or syndicate, which shall result in a change of control of Contractor, shall be deemed an assignment. For this purpose, control shall mean fifty percent or more of the voting power or twenty-five percent or more of the assets of the corporation, partnership or joint-venture.
d. Only those persons and/or businesses whose names and resumés are attached to this Contract shall be used in the performance of this Contract. However, if after the start of this Contract, Contractor wishes to use sub-contractors, at no additional costs to the City, then Contractor shall submit a written request for consent to add sub- contractors including the names of the sub-contractors and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or reject such requests in their sole and absolute discretion.
e. Each sub-contractor shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reasonable conformity to the insurance carried by Contractor.
f. In addition, any tasks or services performed by sub-contractors shall be subject to each provision of this Contract. Contractor shall include the following language in their Contract with any sub-contractor: “Sub-Contractors hired by Contractor agree to be bound to Contractor and the City in the same manner and to the same extent as Contractor is bound to the City.”
g. The requirements in this Section 12 shall not apply to persons who are merely providing materials, supplies, data or information that Contractor then analyzes and incorporates into its work product.
13. SAFETY:
a. Contractor acknowledges that the City is committed to the highest standards of workplace safety. Contractor will be solely and completely responsible for conditions of all vehicles owned or operated by Contractor, including the safety of all persons and property during performance of the services and tasks under this Contract.
Contractor shall assume sole and complete responsibility for the safety of Contractor's employees and any of subcontractor's employees This requirement will apply continuously and not be limited to normal working hours. In addition, Contractor will comply with all safety provisions in conformance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all other applicable Contract No: ________ For the Contract between the City of Richmond and
_____________________________
federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Contract. Where any of these are in conflict, the more stringent requirements will be followed. Contractor’s failure to thoroughly familiarize itself with the aforementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein.
b. Contractor will immediately notify the City (in no event less than 24 hours) of any incident of death, serious personal injury or substantial property damage that occurs in connection with the performance of this Contract. Contractor will promptly submit to the City a written report of all incidents that occur in connection with this Contract. This report must include the following information: (i) name and address of injured or deceased person(s); (ii) name and address of Contractor’s employee(s) involved in the incident; (iii) name and address of Contractor’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.
c. Contractor acknowledges that the City shall have the right to impose, at the City’s sole discretion, requirements that it deems are necessary to protect the health and safety of the City employees, residents, and visitors. Contractor agrees to comply with all such requirements, including, but not limited to, mandatory vaccinations, the use of personal protective equipment (e.g. masks), physical distancing, and health screenings.
Contractor also agrees to make available to the City, at the City’s request, records to demonstrate Contractor’s compliance with this Section.
14. INSURANCE:
Insurance requirements are set forth in Exhibit F to this Contract. Contractor shall abide by the insurance requirements set forth in said Exhibit F.
15. COMPLIANCE WITH ALL APPLICABLE LAWS:
a. During the term of this Contract, Contractor shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Richmond which affect the manner in which the services or tasks are to be performed by Contractor, as well as all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Contractor shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City. Compliance under this provision includes compliance with all provisions of the Richmond Municipal Code ("Municipal Code"), including Chapters 2.50,
2.52, 2.56, and 2.60, if applicable.
b. Contractor acknowledges that under § 2.60.070 of the Municipal Code ("Living Wage Ordinance"), Contractor is required to provide the City with documents and information verifying its compliance with the Living Wage Ordinance. Contractor shall notify each of its affected employees with regards to the wages that are required to be paid pursuant to the Living Wage Ordinance as prescribed in § 2.60.070 of the Municipal Code.
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
c. Contractor shall comply with § 2.28.030 of the Municipal Code, obligating every Contractor or sub-Contractor under an agreement or sub-agreement with the City for public works, goods or services to refrain from discriminatory employment or practices on the basis of race, color, sex, sexual orientation, religious creed, national origin or ancestry of any employee, any applicant for employment or any potential sub-contractor.
d. Contractor acknowledges that the City’s Drug Free Workplace Policy, Violence in the Workplace Policy and the Policy Against Workplace Harassment, are available on the City’s website at http://www.ci.richmond.ca.us/workplacepolicies.
Contractor agrees to abide by the terms and conditions of said policies.
16. INTEGRATED CONTRACT:
The Recitals and exhibits are a material part of this Contract and are expressly incorporated herein. This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Contract will be effective only by written execution signed by both the City and Contractor.
17. CONFLICTING PROVISIONS:
In the event of a conflict between these General Conditions and those of any Exhibit or attachment hereto, these General Conditions shall prevail; provided, however, that any Special Condition as set forth in Exhibit E shall prevail over these General Conditions. In the event of a conflict between the terms and conditions of any two or more Exhibits or attachments hereto, those prepared by City shall prevail over those prepared by the Contractor, and the terms and conditions preferred by the City shall prevail over those preferred by the Contractor.
18. FORCE MAJEURE:
Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that the performance of such an obligation is prevented or delayed by reason of acts of God, strikes, boycotts, lock-outs, inability to procure materials not related to the price thereof, failure of power, restrictive governmental laws and regulations enacted after the date of this Contract, riots, civil unrest, acts of terrorism, insurrection, war, declaration of a state or national emergency or other reasons of a like nature not within the reasonable control of such party.
19. CONFLICT OF LAW:
This Contract shall be interpreted under, and enforced by the laws of the State of Contract No: ________ For the Contract between the City of Richmond and
_____________________________
California without regard to any choice of law rules which may direct the application of laws of another jurisdiction. The Contract and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Contract (or the successors of those authorities). Any suits brought pursuant to this Contract shall be filed with the courts of the County of Contra Costa, State of California.
20. CLAIMS:
Any claim by Contractor against City hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the City shall be waived if not made within six months after accrual of the cause of action.
21. INTERPRETATION:
This Contract shall be interpreted as if drafted by both parties.
22. WARRANTY:
If any product is be provided to the City as part of this Contract, Contractor warrants as follows: Contractor possesses good title to the product and the right to transfer the product to City; the product shall be delivered to the City free from any security interest or other lien; the product meets any specifications contained herein; the product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery; and the product shall be fit for its intended purpose(s). Notwithstanding the foregoing, consumable and maintenance items (such as light bulbs and batteries) shall be warranted for a period of one hundred and eighty (180) days from the date of delivery. All repairs during the warranty period shall be promptly performed by Contractor, at Contractor's expense, including shipping.
23. SEVERABILITY:
In the event that any of the provisions or portions or applications thereof of this Contract are held to be unenforceable or invalid by any court of competent jurisdiction, City and Contractor shall negotiate an equitable adjustment in the provisions of the Contract with a view toward effecting the purpose of this Contract, and the validity and enforceability of the remaining provisions or portions or applications thereof, shall not be affected thereby.
24. AUTHORITY:
City warrants and represents that the signatory hereto (the Mayor of the City of Richmond or the City Manager) is duly authorized to enter into and execute this Contract on behalf of City. The party signing on behalf of Contractor warrants and represents that they are duly authorized to enter into and execute this Contract on behalf of Contractor, Contract No: ________ For the Contract between the City of Richmond and
_____________________________
and shall be personally liable to City if they are not duly authorized to enter into and execute this Contract on behalf of Contractor.
25. WAIVER:
The waiver by City of any breach of any term or provision of this Contract shall not be construed as a waiver of any subsequent breach. Inspections or approvals, or statements by any officer, agent or employee of the City relating to the Contractor’s performance, or payment therefore, or any combination of these acts, shall not relieve the Contractor’s obligation to fulfill this Contract as prescribed; nor shall the City be thereby stopped from bringing any action for damages or enforcement arising from any failure to comply with any of the terms and conditions of this Contract.
26. COUNTERPARTS:
This Contract may be executed in any number of counterparts (including by fax, PDF, DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
27. SANCTUARY CITY CONTRACTING ORDINANCE (SCCO):
The Richmond Sanctuary City Contracting Ordinance No. 12-18 prohibits the City from granting and or retaining contracts with any person or entity that provides Data Broker or Extreme Vetting services to the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security (“ICE”). Contractor must submit the Sanctuary City Compliance Statement, attached hereto as Exhibit G.
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT E
SPECIAL CONDITIONS
The General Conditions are hereby amended to include the following modifications and/or provisions (if applicable, otherwise please state “NONE”):
EXHIBIT E — SPECIAL CONDITIONS
These modifications and provisions (the "Special Conditions") are hereby incorporated into the Contract between the City of Richmond and Mark43, Inc. dated as of __________ (the "Base Contract" and such date, the "Effective Date"). The Software License and Services Agreement between the parties (the "SLSA") is incorporated into this Contract. In the event of a conflict or inconsistency between these Special Conditions and either the Standard Contract or Exhibits A through D or Exhibit F, these Special Conditions shall prevail. In the event of a conflict or incon- sistency between these Special Conditions and the SLSA, the SLSA shall prevail.
MODIFICATIONS TO GENERAL CONDITIONS (EXHIBIT D)
1. Section 2 (Time is of the Essence). The heading "Time is of the Essence" is replaced with "Time Estimates." The text of Section 2 is deleted and replaced with:
"Contractor and City agree that any time period set forth in Exhibit A or the Statement of Work represents their best estimates with respect to completion dates, and both Contractor and City acknowledge that departures from the schedule may occur. Both Contractor and City will use reasonable efforts to notify one another of changes to the schedule. Contractor shall not be re- sponsible for performance delays caused by City, third parties, or delays beyond Contractor's control, and such delays shall extend the times for performance of Contractor's work."
2. Section 6 (City Property). Section 6 of the General Conditions is hereby repealed and re- placed with:
"6. Intentionally Omitted. Intellectual property rights and ownership of Subscriber Data, Work Product, and Mark43 Materials are governed exclusively by the SLSA."
3. Section 7 (Records). The following language is hereby added to the end of Section 7 of the General Conditions:
"This section shall not be deemed to expand the Contractor's duties imposed by applicable law regarding the subject matter hereof, and shall not require Contractor to disclose proprietary soft- ware, source code, algorithms, or trade secrets."
4. Section 9 (Termination).
(a) Section 9(a) (Termination Without Default) is hereby repealed and replaced with:
"9(a). Termination Without Default. Notwithstanding any provision herein to the contrary, City may, in its sole and absolute discretion and without cause, terminate this Contract upon thirty (30) days' written notice to Contractor. Contractor may terminate this Contract in its sole and ab- solute discretion and without cause upon thirty (30) days' written notice to City. In the event of termination by either party under this Section 9(a), Contractor shall be compensated for: (1) all authorized work satisfactorily performed prior to the effective date of termination; and (2) any prepaid Fees for the balance of the period of performance under the applicable Order Form shall be refunded on a pro-rata basis. Additional termination rights and post-termination obligations are set forth in the SLSA."
(b) Section 9(b) (Termination in the Event of Default) is hereby repealed and replaced with:
"9(b). Intentionally Omitted. Refer to Section 9(a) above and Section 6 of the SLSA."
5. Section 11 (Hold Harmless). Section 11 of the General Conditions is hereby repealed and re- placed with:
"11. Intentionally Omitted. Indemnification obligations of each party are governed exclusively by Section 10 of the SLSA."
6. Section 12 (Limitations upon Subcontracting and Assignment). The following language is hereby added to the end of Section 12 of the General Conditions:
"To the extent City's consent is required for an assignment or transfer under this Section 12, such consent shall not be unreasonably withheld. Notwithstanding anything in this Section 12 to the contrary, Contractor may, without City's prior consent, assign this Contract in its entirety to any of its Affiliates (as defined in the SLSA) or to an entity with or into which it is merged or consol- idated or to which it sells all or substantially all of its assets, stock or other equity interests, con- sistent with Section 11.2 of the SLSA."
7. Section 17 (Conflicting Provisions). Section 17 of the General Conditions is hereby repealed and replaced with:
"17. Conflicting Provisions. In the event of a conflict between the General Conditions (Exhibit D) and the SLSA, the SLSA shall prevail. In the event of a conflict between the General Condi- tions and the Special Conditions (Exhibit E), the Special Conditions shall prevail. In the event of a conflict between these General Conditions and any other Exhibit or attachment (other than the SLSA or Exhibit E), these General Conditions shall prevail."
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT F
INSURANCE PROVISIONS
☐ CHECK HERE IF RISK MANAGEMENT HAS APPROVED WAIVING INSURANCE REQUIREMENTS FOR THIS CONTRACT.
1. CERTIFICATES: Before the commencement of the terms of this Contract, and during the entire term of this Contract and any extension or modification thereof, Contractor shall furnish the City’s Risk Manager with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with coverage requirements set forth by the City and incorporated herein.
Such certificates, which do not limit Contractor’s indemnification, shall also contain substantially the following statement:
“Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days’ advance written notice to the City of Richmond.
Attention: Risk Manager.”
Contractor shall maintain in force at all times during the performance of this Contract all appropriate coverage of insurance required by this Contract with an insurance company licensed to offer insurance business in the State of California with a current A.M. Best’s rating of no less than A:VII or Standard & Poor’s Rating (if rated) of at least BBB unless otherwise acceptable to the City. Contractor shall deliver updated insurance certificates to the City at the address set forth in Exhibit C prior to the expiration of the existing insurance certificate for the duration of the term of Contract.
Endorsements naming the City, its City Council, boards, commissions, officials, employees, agents, and volunteers as additional insured shall be submitted with the insurance certificates.
2. COVERAGE REQUIREMENTS: The City’s insurance requirements depend upon the type of service being provided and/or the provider. The City’s insurance requirements will fall into one of the following categories (unless otherwise provided by the City):
Consultants and Contractors – Type 1
Professional Services – Type 2
Environmental Risk/Hazardous Waste Material – Type 3
Lease of City Property – Type 4
Vendors, Suppliers, Small Grant Recipients & Nonprofit Organizations – Type 5 Transportation Providers – Type 6
Professional Services Pyrotechnics – Type 7
Cyber and I.T. Risks – Type 8
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
The insurance requirements classification applicable to this Contract shall be attached to this Exhibit F and made a part hereof.
3. FAILURE TO SECURE: If Contractor at any time during the term hereof should fail to secure or maintain the foregoing insurance, the City shall be permitted to obtain such insurance in Contractor’s name or as an agent of Contractor and shall be compensated by Contractor for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
4. SUFFICIENCY OF INSURANCE: The insurance limits required by the City are not represented as being sufficient to protect Contractor. Contractor is advised to consult Contractor’s insurance broker to determine adequate coverage for Contractor. The coverage and limits shall be (1) the minimum coverage and limits specified in this Contract; or (2) the broader coverage and maximum limits of the coverage carried by or available to Contractor; whichever is greater.
INSERT INSURANCE REQUIREMENTS CLASSIFICATION APPLICABLE TO THIS CONTRACT: (IF NECESSARY, CONFIRM WITH RISK MANAGER)
Contract No: ________ For the Contract between the City of Richmond and
_____________________________
EXHIBIT G
SANCTUARY CITY COMPLIANCE STATEMENT
The undersigned, (hereafter "Contractor"), has had an opportunity to review the requirements of City of Richmond Ordinance 12-18 (hereafter "Sanctuary City Contracting Ordinance" or “SCCO”).
Contractor understands and agrees that the City may choose with whom it will maintain business relations and may refrain from contracting with any person or entity that provides Data Broker or Extreme Vetting services to the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security (“ICE”). Contractor understands the meaning of the following terms used in the SCCO:
a. "Data Broker” means either of the following:
i. The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector business and government agencies;
ii. The aggregation of data that was collected for another purpose from that for which it is ultimately used.
b. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services."
Contractor understands that it is not eligible to receive or retain a City contract if at the time the Contract is executed, or at any time during the term of the Contract, it provides Data Broker or Extreme Vetting services to ICE.
Contractor further understands and agrees that Contractor's failure to comply with the SCCO shall constitute a material default of the Contract and the City Manager may terminate the Contract and bar Contractor from bidding on future contracts with the City for five (5) years from the effective date of the contract termination.
By executing this statement, Contractor certifies that it complies with the requirements of the SCCO and that if at any time during the term of the Contract it ceases to comply, Contractor will promptly notify the City Manager in writing. Any person or entity who knowingly or willingly supplies false information in violation of the SCCO shall be guilty of a misdemeanor and subject to a $1,000 fine.
Based on the foregoing, the undersigned declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Printed Name: Title:
Signed: Date:
Business Entity:
___ Exhibit F
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In all instances where a CONTRACTOR or its representatives will be conducting business and/or providing services, the City requires the following MINIMUM insurance requirements and limits.
CONTRACTOR shall procure and maintain for the duration of the contract, agreement, or other order for work, services or supplies, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the CONTRACTOR, its agents, representatives, employees or subcontractors. Maintenance of proper insurance coverage is a material element of the contract. Failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract.
CONTRACTOR agrees that in the event of loss due to any of the perils for which it has agreed to provide Commercial General Liability insurance, CONTRACTOR shall look solely to its insurance for recovery. CONTRACTOR hereby grants to CITY, on behalf of any insurer providing Commercial General Liability insurance to either CONTRACTOR or CITY with respect to the services of CONSULTANT herein, a waiver of any right to subrogation which any such insurer of said CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance.
Original, signed certificates and original, separate policy endorsements, naming the City as an additional insured for general liability, as well as a waiver of subrogation for Workers’ Compensation insurance, shall be received and approved by the City before any work may begin. However, failure to do so shall not operate as a waiver of these insurance requirements.
City reserves the right to modify or require additional coverages for specific risk exposures depending on scope of CONTRACTORS work.
Minimum coverage is detailed below. The policy limits of coverage shall be made available to the full limits of the policy.
The minimum limits stated herein shall not serve to reduce the policy limits of coverage of CONTRACTOR.
Minimum Scope of Insurance – the following forms shall be provided and coverage shall be at least as broad as the following:
1. Insurance Services Office Commercial General Liability coverage (ISO Occurrence Form CG 0001) including coverage for bodily and personal injury, property damage, and products and completed operations.
2. Insurance Services Office Automobile Liability coverage (ISO Form CA 0001, Code 1, Any Auto)
3. Original and Separate Additional Insured Endorsements for General Liability (ISO Form CG 20 10 11/85 or its equivalent) with primary and non-contributory language.
4. Workers’ Compensation Insurance as required by the State of California including Employer’s Liability coverage.
5. Original and Separate Waiver of Subrogation for Workers’ Compensation and Builder’s Risk/ Course of Construction Insurance.
6. Cyber Liability Insurance
Required Coverage
Minimum Limits
Workers’ Compensation and
Employers’ Liability
Statutory limits as required by the State of California including $1 million Employers’ Liability per accident, per employee for bodily injury or disease.
If CONTRACTOR is self-insured, provide a certificate of Permission to Self- Insure, signed by the California Department of Industrial Relations and Self- Insurance. If contractor is a sole proprietor (has no employees) than contractor must sign “Contractor Release of Liability” found at:
http://www.ci.richmond.ca.us/index.aspx?nid=61.
General Liability
(primary and excess limits
combined)
PROJECT COST REQUIRED LIMIT
$0 - $5 million $2 million p/o
$5 million - $10 million $5 million p/o
Over $10 million $10 million p/o
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Automobile Liability $1,000,000 per occurrence for bodily injury and property damage.
Cyber Liability Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity.
Same limits as General Liability.
Required Policy Conditions
A. M. Best Rating A:VII or Better. If the A.M. Best Rating falls below the required rating, CONTRACTOR must replace coverage immediately and provide notice to City.
Additional Insured Endorsement
Additional Insured Endorsement
(continued)
Applicable to General Liability Coverage.
The City of Richmond, its officers, officials, employees, agents and volunteers are to be named as additional insureds for all liability arising out of the operations by or on behalf of the named insured, including but not limited to bodily injury, deaths and property damage or destruction arising in any respect directly or indirectly in the performance of this contract.
ISO form CG 20 10 (11/85) or its equivalent is required. The endorsement must not exclude products and completed operations coverage. If it does, then CG 20 37 (10/01) is also required.
SAMPLE Endorsements can be found at
http://www.ci.richmond.ca.us/index.aspx?nid=61
Primary and Noncontributory The contractor’s insurance coverage must be primary coverage as it pertains to the City, its officers, officials, employees, agents and volunteers. Any insurance or self insurance maintained by the City is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance.
___ Exhibit F
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Waiver of Subrogation
Endorsement Form
Contractor’s insurer will provide a Waiver of Subrogation in favor of the City for Workers Compensation and Builder’s Risk/ Course of Construction coverage during the life of this contract.
SAMPLE Endorsements can be found at
http://www.ci.richmond.ca.us/index.aspx?nid=61
Deductibles and Self-Insured
Retentions
Any deductible or self-insured retention must be declared to and approved by the City. At the option of the City either the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the City or the CONTRACTOR shall procure a financial guarantee in an amount equal to the deductible or self-insured retention guaranteeing payment of losses and related investigations, claims administration and defense expenses.
Contractor is responsible for satisfaction of the deductible and/or self-insured retention for each loss.
1. Umbrella/Excess Liability Policies
If an Umbrella or Excess Liability Policy is used to meet the liability limits, coverage shall be as broad as specified for underlying coverages and cover those insured in the underlying policies.
Claims-Made Policies
If any insurance policy is written on a claims-made form: 1) the retroactive date must be shown, and must be before the date of the contract or the beginning of contract work. 2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3) If coverage is canceled or non- renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
Subcontractors
CONTRACTOR
shall include all subcontractors as insured under its policies or shall furnish to the City for review and approval, separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein.
CONTRACTOR agrees to defend and indemnify the City of Richmond for any damage resulting to it from failure of either CONTRACTOR or any subcontractor to take out or maintain the required insurance policies. The fact that insurance is obtained by CONTRACTOR, and/or CONTRACTOR’s subcontractors, will not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this contract. Damages recoverable by CITY from CONTRACTOR or any third party will not be limited by the amount of the required insurance coverage.
Verification of Coverage
All original certificates and endorsements shall be received and approved by the City before work may begin. The City of Richmond reserves the right to require complete, certified copies of all required insurance policies including endorsements affecting the coverage at any time.
Original insurance certificates and required policy endorsements shall be mailed, or delivered to the Designated Project Manager for the City of Richmond.
Insurance certificates and endorsements may be faxed to the Designated Project Manager. However, Contractor must mail the original certificates and endorsements to Designated Project Manager once faxed.
Continuous Coverage
CONTRACTOR shall maintain the required insurance for the life of the contract. Should the CONTRACTOR cease to have insurance as required during this time, all work by the CONTRACTOR pursuant to this agreement shall cease until ___ Exhibit F
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insurance acceptable to the City is provided. In the event that CONTRACTOR fails to comply with the City’s insurance requirements, the City may take such action as it deems necessary to protect the City’s interests. Such action may include but is not limited to termination of the contract, withholding of payments, or other actions as the City deems appropriate.
If services or the scope of work extend beyond the expiration dates of the required insurance policies initially approved by the City, CONTRACTOR must provide updated certificates and endorsements indicating that the required coverage, terms and conditions are still in place. Renewal certificates and updated endorsements shall be mailed to the Designated Project Manager.
Cancellation
CONTRACTOR shall ensure that coverage shall not be cancelled, reduced or otherwise materially changed except after thirty (30) days’ prior written notice has been given to the City.
Reporting Requirements
Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers.
Consistent with Public Policy
The insuring provisions, insofar as they may be judged to be against public policy shall be void and unenforceable only to the minimum extent necessary so that the remaining terms and provisions herein may be consistent with public policy and thus enforceable.