MSSA #: 00036602
MMaster Security Services Agreement
City of Moreno Valley – 2023-06-29 Page 1 of 10 (202305)
This Master Security Services Agreement (this “ Agreement”) is by and between Ci ty of Moreno Valley (“ Client”), with offices at 14177 Frederick Street, Moreno Valley, CA, United States, 92553, and eSentire America, Inc. (“eSentire”), with offices at 451 Phillip Street Unit 135, Waterloo, ON, Canada N2L 3X2, each a “Party” and together the “Parties.” This Agreement is effective on the date of the last signature below (the “Effective Date”).
1. Definitions
In addition to the capitalized terms defined elsewhere in this Agreement or in the applicable Order Form, the following terms will have the meanings ascribed to them in this Section 1. “Affiliate“ of a Party means any corporation or other legal entity that such Party directly or indirectly controls, is controlled by, or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more th an 50% of the voting rights for the board of directors or other mechanism of control for such corporation or other entity. “Client Data“ means (a) data, records, files of Client including e-mail sent or received by personnel of Client, and (b) all reports generated for or by Client as a result of the provision or use of the Services, except to the extent such reports contain eSentire Intellectual Property.
“Confidential Information“ means any and all information disclosed by either Party (“Disclosing Party”) to the other (“Receiving Party”) that is not deemed public information, that is not protected by Requirements of Law applicable to information that is Personal Information and that is marked “confidential” or “proprietary,” or similar designation or which the recipient knows or has reas o n t o k n o w i s r e g a r d e d b y t h e D i s closing Party as such, including oral information. For the avoidance of doubt, Confidential Information does not include any information that the Receiving Party can demonstrate: (a) was known to it prior to its disclosure hereunder by the Disclosing Party; (b) is or becomes known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party without restriction or disclosure and without breach by such third party of a non-disclosure obligation; (d) is independently developed by the Receiving Party; or (e) has been approved for release by the Disclosing Party’s prior written authorization.
“Day“ or “Days“ means calendar days, unless otherwise specified. “Encrypt” or “Encryption” means the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without the use of a confidential process or key; “Intellectual Property” means (a) any rights provided under (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evid ence of a right in any of the forego ing. eSentire’s Intellectual Property includes New Intellectual Property, as defined in Section 2.4 below. “Order Form” means an ordering document, executed by the Partie s, that specifies the Serv ices to be provided to Client, including any amendments and supplements thereto. Each such Order Form, and any schedules, documents or other attachments thereto, incorporates and is subject to the terms and conditions of this Agreement. “Participating Affiliate ” means a Client Affiliate authorized by Client under eSentire’s processes to contract for Services in Participating Affiliate’s own name subject to the terms of this Agreement. “Personal Information” means information that can be used on its own or in combination with other information to identify, contact, or locate a particular individual, incl uding but not limited to, name, address, telephone number, email address, IP address, place of birth, mother’s maid en name, sexual orientation, social insurance or social security numbers, credit history and score, financial re cords, password and login in formation, biometric data, medical records, health insurance number, employment in formation and driver’s licen se number, as applicable and/or as defined and protected by Requirements of Law. “Requirements of Law” mean all laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licenses, authoriz ations, directions, and agreements with any government authority, agency, body or department, whether federal, provincial, state, municipal or law of a jurisdiction outside
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MMaster Security Services Agreement
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Canada or the U.S. that now or at any time hereafter may be applicable to a Part y in the performance of its obligations under this Agreement or any part of them (including all applicable privacy and data protection laws). “Services” means the services specified in an Order Form. “Systems” means any combination of hardware and software, including without limitation any telecommunication lines or other networking devices used to link such combination of hardware and software.
2. Services, License Grants and Restrictions
2.1 Services. eSentire shall provide to Client the Services as set forth in the Order Form during the Term. eSentire personnel shall remain under the direction and control of eSentire.
2.2 Usage Restrictions. Except as expressly permitted by eS entire, Client will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, or underlying structure, ideas, or algorithms of the soft ware provided or used by eSentire in delivering the Services (“ Software”) or the Services; (ii) copy or duplicate th e Software or modify, translate, or create derivative works based on the Softwa re; (iii) rent, lease, distribute, s ublicense, resell, pledge, assign, or otherwise transfer, provide access to or encumber rights to Software or the other Services; or (iv) use the Services or Software for service bureau purposes or otherwise for the benefit of a third party. Client will use the Services solely in compliance with all Requirements of Laws.
2.3 Ownership and Use of Client Data. Except as provid ed below, eSentire expressly acknowledges and agrees that as between Client and eSentire, Client is the owner of and has exclus ive rights, title and interest in and to Client Data. Notwithstanding th e foregoing, to the extent any repo rts provided by eSentire to Client hereunder include any eSentire Intellectual Property including without limitation, the format of such reports, eSentire shall retain all rights in and to such eSentire Intellectual Property. eSentire hereby grants to Client a nonexclusive, nontransferable, limited license to us e such eSentire Intellectual Property solely for the purposes for which such reports are provided by eSentire to Client pursuant to this Agreement. Client will not create derivative works based upon, using or incorporating any eSentire Intellectual Property, disassemble or reverse engineer, decompile or design around any eSentire Intellectual Property. eSentire will have the right to access and use such Client Data solely (i) as necessary to provide the Services and (ii) for trend analysis that may assist eSentire in the provision of its services in its business generally, provided that no such trend analysis will result in the disclosure of any Personal or Confidential Information about or from Client or its employees or customers. eSentire will not retain, use, disclose, sell, or otherwise process Client Data for any purpose other than the specific purpose of performing the Services under this Agreement.
2.4 Freedom to Use Ideas. The ideas, formulae, algorithms, concepts, inventions, know how, improvements, discoveries, processes and other information and materials (“ New Intellectual Property ”) developed during the course of performing Services for Client under this Agreement by eSentire and/or eSentire personnel will become the sole Intellectual Property of eSentire, except to the limited extent such New Intellectual Property contains Client Data. eSentire may use any such New Intellectual Property without limitation, including by or for its clients or customers other than Client, notwiths tanding anything to the contrary contained in this Agreement.
2.5 Retention of Rights. Except for the rights expressly gr anted under this Section 2, eSentire, or its third-party vendor(s) or licensor(s), as applicable, retains all right, title, and interest in and to all Software, eSentire hardware and embedded proprietary software (“Equipment”), Services, and all Intellectual Property created, used, or provided by eSentire to Client pursuant to this Agreement. eSentire will also own all right, title, and interest in and to all modifications or derivatives of, and improvements to, Software, eSentire Equipment and Services. Client acknowledges that nothing contained herein will constitute an assignment or transfer of any such eSentire Intellectual Property to Client.
2.6 Update of the Services. eSentire re serves the right in future to make additions, changes or updates to components of the Services (including end of life, removal of feat ures) (collectively, “ Changes”). If such components are no longer supported or made available by eSentire, eSentire will give Client at least 90 Days’ prior written notice of any planned, material Ch anges to the Services to gether with associated
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MMaster Security Services Agreement
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implementation timelines. If Client believes any such Change will have a material adverse impact on its use of such Services, and eSentire cannot reasonably mitigate the impact of such Change within 30 Days after receipt of Client’s written notice of such material adverse impact then Client may, following the end of such 30-Day Period, terminate the affected Service(s) upon 60 Days’ prior written notice to eSentire.
2.7 Client Responsibilities. Client hereby agrees to perfor m its obligations as set fort h in the applicable Order Form.
3. Fees and Payment Terms
3.1 Fees. The fees for Services are set forth on the Order Form (the “ Fees”). If Client requests or eSentire recommends additional Services, the Parties will execute a separate Order Form for such additional Services.
3.2 Invoicing. eSentire will invoice Client as indicated in the applicable Order Form and Client agrees to pay all invoices within 30 Days after the date of each invoice. If Client in good faith believes that eSentire has billed Client incorrectly, Client must notify eSentire in writing no later than 30 Days after the date of such invoice.
The Parties will cooperate in good faith to resolve any b illing concern raised by Cl ient within such 30-Day period. eSentire reserves the right to charge interest at the rate of the lesser of (i) 1.5% per month or (ii) the maximum amount allowed by law, in respect of invoiced amounts that have remained unpaid for more than 30 Days after the date of the applicable invoice. If eSentire pursues collection efforts against Client due to Client’s failure to pay Fees when due hereunder, Client will pay eSentire’s reasonable costs of collection, including any legal fees related thereto.
3.3 Taxes. All Fees are exclusive of any taxes, levies, dut ies or similar governmental assessments of any nature including, without limitation, fees, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for self-assessment of and self-remission of any and all Taxes associated with this Agreem ent to the applicable collecting agen cy or party. In the event that eSentire pays Taxes on behalf of the Client, the Client will reimburse eSentire for its payment of all such Taxes imposed upon the services provided hereunder to Client (excluding Taxes based upon eSentire’s income).
3.4 Suspension of Services. eSentire reserves the right, but assumes no obligation, to suspend performance of the Services with immediate effect on written notice to Client in the event Client is more than 30 days overdue in making payments that have not been disputed in good faith.
4. Warranties
4.1 Mutual. Each Party represents and warrants to the othe r that it has the right to enter into this Agreement, and that the consent of no other person or entity is necessary for it to enter in to or fully perform this Agreement.
4.2 eSentire Warranties. eSentire represents, warrants and covenants to Client as follows:
4.2.1 the Services will be performed by qualified personne l in a good, workmanlike, professional manner and substantially in accordance with the applicable Service description provided in the applicable Order Form;
4.2.2 it is not under any contractual obligat ion that would preclude it from entering into this Agreement or providing the Services hereunder;
4.2.3 it is the owner or licensee of the Software used in providing the Services and has all rights necessary to grant the rights herein and to perform its obligations hereunder. In the event that the Software is held to or believed by eSentire to infringe third party Intellectual Property, Client’s sole remedy will be the remedy set forth in Section 9.1;
4.2.4 in performing its obligations under this Agreement, it will comply with all data prot ection laws applicable to eSentire in the performance of its obligations here under and will use the same efforts to safeguard and
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prevent the misuse of all Personal In formation disclosed to it under this Agreement or in the course of providing the Services as it does in protecting its own Confidential Information;
4.2.5 neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the Effective Date) to which eSentire is a party or by which it may be bound, or constitute a default thereunder; and
4.2.6 deliverables will conform substantially to the specifications for the same, if any, set out in the applicable Order Form.
4.3 Client Warranties. Client represents, warrants and covenants to eSentire as follows:
4.3.1 it is duly organized and existing under the laws of it s own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement or granting access to eSentire as provided herein to provide the Services;
4.3.2 in accessing and using the Services and in otherwise pe rforming its obligations under this Agreement, Client will comply with all applicable Requirements of Law and all applicable export and encryption laws and regulations, and will not provide or provide access to a decryption key to eSentire;
4.3.3 Client has all rights necessary to provide eSentire with access to Client Data and Systems for use in accordance with the terms of this Agreement, an d eSentire’s use of any Client Data in accordance with the terms of this Agreement will not violate the rights of any third party;
4.3.4 if Client (1) orders Services hereunder to be performed by eSentire with respect to any third-party devices, data, facilities or environments or (2) deploys agents to third-party endpoints for purposes of Services ordered hereunder (collectively, “ Third Party Services ”), Client has obtained all requi red authorizations including, without limitation, the prior consent of all such third parties for any such Third Party Services; and
4.3.5 neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the Effective Date) to which Client is a party or by wh ich it may be bound, or constitute a default thereunder.
4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL
OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRA NTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT, WHILE ESENTIRE WILL USE ITS BEST EFFORTS TO DETECT INAPPROPRIATE OR UNAUTHORIZED TRAFFIC OR CONTENT WITHIN CLIENT’S
SYSTEMS AND NETWORK, DUE TO THE NATURE OF THE INTERNET AND ITS USERS, ESENTIRE DOES NOT WARRANT THAT IT WILL BE ABLE TO DETECT ALL SUCH CONTENT AND TRAFFIC.
5. Supply of Software and Hardware
5.1 To provide the Services, certain eSentire Equipment may be installed at Client’s premises as set forth in the applicable Order Form. Clie nt acknowledges and agrees that all such eSentire Equipment shall, at all times, be considered to be personal proper ty of eSentire and its licensors and no t Client’s property or a part of Client’s premises. Client will take all reasonable action to protect the eSentire Equipment from theft, damage or destruction as if such hardware and software were owned by Client.
5.2 With Client’s consent, eSentire, or its authorized third parties, may during normal business hours and upon reasonable notice, enter upon Client’s premises and re move the eSentire Equipment, provided that such removal is not disruptive to the provision of the Services.
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MMaster Security Services Agreement
City of Moreno Valley – 2023-06-29 Page 5 of 10 (202305)
5.3 Client will not place or allow any lien or other encumbrance to be placed on such eSentire Equipment. Client will not remove the eSentire Equipment from its prem ises without the prior writ ten consent of eSentire.
Client authorizes eSentire to file any and all appropriate documentation, with no prior requirement to obtain Client's signature, to acknowledge and secure eSentire’s ownership of such eSentire Equipment.
6. Term and Termination
6.1 The term of this Agreement will commence on the Effective Date and will continue in effect for an initial term of three years unless terminated earlier by either party. Client may terminate this Agreement at any time by giving eSentire written notice of its intent to terminate not less than 60 Days prior notice. The termination of this Agreement pursuant to Section 6.1 will not affect the validity of an y Order Form(s) then in effect and any such Order Form(s) will continue in effect until termination of such Order Form(s) pursuant to the terms set forth therein.
6.2 Termination for Breach. Without prejudice to any other rights or remedies which it may have, either Party may terminate this Agreement if the other Party fails to cure a material breach of this Agreement and such material breach remains uncured 30 Days after receiving written notice of the breach from the non-breaching Party. For the avoidance of doubt, this cure period wi ll not apply to any Client failure to pay Fees due under this Agreement and, in addition to eSentire’s remedies under Section 3.4, eSentire may immediately terminate this Agreement by written notice to Client if Client fails to pay any Fees.
6.3 Insolvency. A Party may also terminate this Agreement immediately by written notice to the other party (i) if the other Party is declared insolvent or bankrupt by a co urt of competent jurisdiction; or (ii) if a petition is filed in any court of competent jurisdiction to declare the other Party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed within 60 Days after such filing or if a trustee in bankruptcy or a receiver or similar entity is appointed for the other Party or (iii) the affected Party has been unable to reasonably satisfy the other Party that it is able to perform its obligations in accordance with this Agreement and with no adverse impact to the other Party.
7. Effect of Termination
7.1 In the event either Party terminates this Agreement pursuant to Se ction 6.2 such Party may terminate any and all Order Forms then in effect between eSentire and Client with immediate effect, upon written notice to the other Party.
7.2 Upon termination of this Agreement, all rights granted by either Party to the other Party hereunder will revert to the granting Party, all licenses will terminate and Clie nt’s access to or use of the Services will immediately terminate, with the exceptio n of eSentire’s right to remove eSentire Equipment from Client’s premises. All accrued rights to payment under this Agreement will survive termination.
7.3 Upon termination of this Agreement, Client will delete all copies of any Software provided by eSentire and all related materials. At eSentire’s request, Client agrees to certify the deletion of such Software and/or return of the related materials to eSentire in writing.
7.4 Within 30 Days after any termination of this Agreement, each Party will return to the other Party or destroy all Confidential Information of the other Party, at the receiving Party’s option.
7.5 Within 60 Days after any termination of this Agreement, Client will return the eSentire Equipment eSentire, at Client’s expense. Client acknowledges and agrees that, if Client does not so deliver such eSentire Equipment within such 60-Day period, Client will pay eSentire a reasonable replacement charge per sensor to cover eSentire’s costs to replace the eSentire Equipment.
8. Liability Limitations
EXCLUDING LOSSES ARISING PURSUANT TO SECTION 9 OR FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL OR INTENTIONAL MISCONDUCT OR FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S
LIABILITY TO THE OTHER HEREUNDER FO R ANY LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, DEFICIENCIES,
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COSTS OR EXPENSES, INCLUDING THE REASONABLE FEES AND REASONABLE EXPENSES OF LEGAL COUNSEL, ACCOUNTANTS OR OTHER EXPERTS AND PROF ESSIONAL ADVISERS (COLLECTIVELY, “ LOSS”), ARISING FROM OR
RELATING TO THIS AGREEMENT OR THE PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED THE AMOUNT
PAID BY CLIENT TO ESENTIRE FOR THE SPECIFIC SERVIC E TO WHICH SUCH CLAIM RELATES DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE LOSS OCCURRED. REGARD LESS OF THE NATURE OF THE CLAIM OR THEORY OF
LIABILITY (INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY REQUIREMENTS OF LAW, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OT HER TORT), NEITHER PARTY SHALL BE LI ABLE TO THE OTHER PARTY FOR ANY:
INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQ UENTIAL OR PUNITIVE DAMAGES (EVEN IF THE PARTY
CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD
REASONABLY HAVE FORESEEN SAME ), INCLUDING LOST BUSINESS REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS). THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.
9. Indemnities
9.1 eSentire Intellectual Property Infrin gement Indemnity. eSentire will defend or settle, indemnify and hold Client and its Affiliates, subsidiaries, officers, direct ors, employees, agents and assigns harmless from and against any third party claim, suit or proceeding, an d pay any damages awarded in a final judgment against Client, based on a claim that any eSentire Service or eSentire Equipment (for purposes of convenience in this Section 9, collectively “Services” or “Service”) as provided under this Agreement infringes any U.S. copyright, patent right, trademark or similar proprietary right of any third party (a “Third Party IP Claim”). eSentire will also pay reasonable attorney s’ fees and expenses incurred in connecti on with such defense or settlement.
Notwithstanding the foregoing, eSentire will have no in demnity obligation or liability hereunder to Client for any Third Party IP Claim which is due in whole or in part, directly or indirectly, to: (i) modification by Client or any third party on Client’s behalf or direction of th e Services or associated technology, provision of the Services other than by eSentire or by another party at the direction or instruction of eSentire, including any portion of the Software or hardware provided to Client as part of the Services; or (ii) combination of eSentire’s Services with parts, equipment, software, devices or third-party services not provided by eSentire where such infringement would not exist but for such combination; or (iii) any willful misconduc t or fraudulent action of Client or any third party. For greate r certainty, eSentire will not settle any Third Party IP Claim in a manner that attributes liability to Client without Client’s written consent (whi ch consent will not unreasonably be withheld). In the event that the Services are held to or believed by eSentire to infringe any third party U.S. copyright or patent right, eSentire will have the option to: (x) replace or modify the Services to be non- infringing, provided that such modification or repl acement provides substantially similar features and functionality; (y) obtain for Client th e right to continue using the Services ; or (z) if both (x) and (y) are not reasonably practicable, terminate this Agreement on written notice to Client and refund to Client the prorata portion of the Fees paid to eSentire for the Services not provided by eSentire after the date eSentire received notice of the Third Party IP Claim. eSentire will no t have any obligation to indemnify Client hereunder with respect to any claim that any third-party “open sour ce” or “shareware” softwa re incorporated into any Software provided hereunder infringes any third-party U.S. copyright, patent or si milar proprietary right.
ESENTIRE WILL HAVE NO OBLIGATION TO CLIENT IF ANY ALLEGED THIRD PARTY IP CLAIM IS BASED UPON THE
USE OF THE SERVICES FOR A PURPOSE FOR WHICH THE SERVICES WERE NOT INTENDED OR UPON USE OF ANYTHING OTHER THAN THE MOST CURRENT VERSION OF THE SERVICES.
9.2 Mutual General Indemnity. Each Party will defend or settle, indemnify and hold harmless the other Party and its Affiliates, subsidiaries, officers, directors, em ployees and agents (individually and collectively, “Indemnitee”) harmless from and against any and all third-party claims, actions, damages, losses, liabilities and expenses (of whatever form or nature including, without limitation, reason able attorneys’ fees and expenses and all costs of litigation), whether direct or indirect, alleging damages (each a “Covered Claim”) (i) to real or personal property or personal injury and ca used by the active negligence or willful or intentional misconduct of the indemnifying Party or its Affiliates, officers, directors, employees or agents (individually and collectively, “Indemnitor”); (ii) arising out of or relating to Indemnitor’s violation of any Requirements of Law; (iii) with respect to any Third Party Services, arisin g out of or relating to Clie nt’s failure to obtain the required authorizations or third-party consents, or the adequacy of such consents; or (iv) with respect to Client’s indemnification obligations under this section, arising out of or relating to a Client Indemnitor’s failure
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to Encrypt Confidential In formation or personal information pursu ant to Requirements of Law or this Agreement. Client will Encrypt all Confidential In formation and Personal Info rmation provided or made available to eSentire under this Agreement. “Covered Claims” exclude any claim alleging damages to the extent caused by the negligence, fraud or willful mi sconduct of an Indemnitee or for which eSentire is responsible under Section 9.1.
9.3 Procedure. Each Party’s (as “Indemnitor”) indemnity obligations under this Section 9 are contingent on the other party promptly notifying the Indemnitor in writin g of any claim or threat thereof, promptly tendering to the Indemnitor sole control of the defense and any settlement of such claim, and providing to Indemnitor (at Indemnitor’s cost) any reasonable assistance necessary to such defens e or settlement. Indemnitor will not be responsible for any settlement it does not approve in writing (which consent will not unreasonably be withheld).
THIS SECTION 9 SETS FORTH THE PARTIES’ ENTIRE LIABILIT Y, AND THE PARTIES’ SOLE REMEDIES, IN THE EVENT OF ANY THIRD PARTY IP CLAIMS OR COVERED CLAIMS HEREUNDER.
10. Confidentiality
10.1 The Receiving Party:
10.1.1 will not, directly or indirectly, use or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever except as expressly permitted hereunder or unless and until expressly authorized to do so by the Disclosing Party;
10.1.2 will use, disclose and reproduce the Confidential Info rmation of the Disclosing Party only to the extent necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement;
10.1.3 will promptly comply with requests made by the Disclo sing Party to delete Conf idential Information when such Confidential Information is no longer needed by the Receivin g Party to perform its obligations hereunder;
10.1.4 will disclose the Confidential Information of the Disc losing Party only to those of its representatives, professional advisors, subcontractors and its Affiliates and their representatives, professional advisors and subcontractors (collectively, “Representatives” for purposes of this Section 10) who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Party’s obligations or exercising its rights under this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section 10 with respect to the Confidential Information.
In all cases, the Receiving Party will be responsible for any (a) loss or theft of, or unauthorized access to the Disclosing Party’s Confidential Information or (b ) violation of Requirement s of Law applicable to Confidential Information by its Representatives;
10.1.5 will use reasonable efforts to treat, and to cause all of its Representatives to treat, the Disclosing Party’s Confidential Information with at least the same degree of care the Receiving Party exercises in protecting its own Confidential Information and, in any event, with no less than a reasonable standard of care; and
10.1.6 will be entitled to disclose Conf idential Information if such disclo sure is required (i) by a court, administrative or regulatory body (including a stoc k exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party, a request made by an individual Data Subject, as defined in the General Data Protection Regulation, (ii) pursuant to an investigation initiated by a regulatory body, other governmental authority or pursuant to court order, or (iii) pursuant to the California Public Records Act, provided that the Receiving Party will:
10.1.6.1 give prompt written notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy or response;
10.1.6.2 take such steps as are reasonably necessary and av ailable to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body;
10.1.6.3 in any event, make such disclosure only to the extent so legally required; and
10.1.6.4 except as otherwise provided in this Agreement, no t use or disclose to third parties any Confidential
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Information of the Disclosing Party unless required by law or expressly consented to by the Disclosing Party.
11. General Provisions
11.1 Interpretation. In this Agreement: (i) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (ii) all usage of the word “including” or the phrase “e.g.,” in this Agreement mean “including, without limitation,” througho ut this Agreement; (iii) all monetary amounts are expressed in United States dollars, unless expressly prov ided otherwise. Headings and the division of this Agreement into articles and sections are for convenience of reference only and is not intended to and will not affect the interpretation hereof. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms and cond itions contained in an Order Form, the terms and conditions of the Order Form will take precedence.
11.2 eSentire Affiliates. eSentire reserves the right to invoice Client or deliver Services to Client via any eSentire Affiliate in full satisfaction of its obligations under this Agreement.
11.3 No Licenses. Unless otherwise expressly provided in this Agreement, no licenses to any technology, trademarks, or any other Intellectual Property rights of a Party or any third party are granted by virtue of this Agreement.
11.4 Force Majeure. With the exception of Client’s oblig ation to make payment hereunder, either Party may be excused for any delay or failure to perform its duties and obligations hereunder to the extent such failure is caused by any circumstances beyond such Party’s reason able control including, but not limited to, acts of God, fire, flood, war, sabotage, terrorism, civil or mili tary authority, labor disputes, accidents, power surges or failures, internet connectivity, or the act or omission of any third party (a “Force Majeure Condition”). The Party affected by the Force Majeure Condition will be excused from such performance for a period no longer than the delay or failure in performance caused by the Force Majeure Condition, provided such Party uses (i) industry standard procedures to minimize the disruption caused by and (ii) reasonable efforts to remove the cause(s) of the Force Majeure Condition.
11.5 Entire Agreement. This Agreement supersedes an d cancels all previous agreements, proposals or representations related to the subject matter.
11.6 Assignment. Client will not assi gn this Agreement without the prio r written consent of eSentire.
Notwithstanding the foregoing, Client may assign this Agreement without such co nsent in connection with the transfer or sale of all or substantially all of its st ock, assets or business relati ng to the Services to which this Agreement relates. Client will give eSentire writ ten notice of any such permitted Assignment within 30 days after the closing date of such transfer or sa le. Notwithstanding the foregoing, in order for any assignment to be effective, the assignee must (i) agree in writing to be bound by the terms of this Agreement and (ii) demonstrate to eSentire’s reas onable satisfaction that it possesses the financial ability to perform Client’s obligations hereunder.
11.7 Severability. In the event that any provision of this Agreement is found to be illegal, void or unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the Agreement will remain in full force and effect.
11.8 Relationship of Parties. No agency, partnership, join t venture, or employment relationship is created as a result of this Agreement, and neithe r Party has any authority of any kind to bind the other in any respect whatsoever. Neither Party has any ri ght to or will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other Party’s name or on its behalf.
11.9 Non-Exclusive Nature of Relationship. Notwithstanding anything to the contrary herein, nothing contained in this Agreement prohibits either Party from entering into a similar arrangement with a third party irrespective of the potential similarity thereof to services which might be provided by eSentire to Client.
11.10 No Third Party Beneficiaries; Inurement. There are no third party beneficiaries to this Agreement, except as may otherwise be provided herein. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
MSSA #: 00036602
MMaster Security Services Agreement
City of Moreno Valley – 2023-06-29 Page 9 of 10 (202305)
11.11 Publicity. Client acknowledges and agrees that eSenti re may use Client’s name and logo for the purpose of identifying Client as a customer of eSentire.
11.12 Survival. Section 2.3 (Ownership an d Use of Client Data), Section 2.4 (Freedom to Use Ideas), Section 2.5 (Retention of Rights), Section 8 (Liability Limitations) , Section 9 (Indemnities), Section 10 (Confidentiality), Section 11 (General Provisions) and any other provisions which by their nature ought to survive termination of this Agreement will survive the termination of this Agreement.
11.13 Notices. All notices, demands, consents, authoriz ations, approvals and other communications under this Agreement will be in writing and will be deemed to have been duly given (i) if delivered in person, on the date of such delivery; (ii) if sent by facsimile or email, wh en receipt is electronically confirmed; (iii) if sent by recognized commercial overnight courier, on the delivery date stated in the receipt provided by such courier; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested to the respective Party’s address set forth on the Order Form. Either Party may change its address for notice under this Agreement by giving written notice to the other Party by the means set forth in this Section 11.12.
11.14 Governing Law and Modification. This Agreement will be governed by and construed in accordance with the laws of the state of California, without regard to its choice of law provisions. Any action seeking legal or equitable relief arising out of or relating to this Agreem ent will be brought only in the courts of the state of California. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any changes to this Agreement, or any additional or different terms in Client’s purchase orders, acknowledgments or other documents will have no effect and will not supersede the terms of this Agreement. Any modifications or amendments to this Agreement must be in writing and signed by both Parties.
11.15 Rights and Remedies. Except as specifically provided in this Agreement, the rights and remedies provided in this Agreement and all other rights and remedies available to either Party at law or in equity are, to the extent permitted by law, cumulative and no t exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy will pr eclude the concurrent assertion of any other right or employment of any other remedy.
11.16 Further Assurances. Each Party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
11.17 Non-Solicitation. Client will not solicit for employment, hire or enter into any independent contractor or other similar relationship with any employee of eSentire wh o has been involved, direct ly or indirectly, in the provision of any of the Services hereunder to Clie nt during the immediately preceding 12-month period without the express prior written consent of an authoriz ed eSentire executive. This Section 11.16 will not prohibit Client from hiring an employee of eSenti re in response to an employment or contracting advertisement or other general solicitation not specifically targeted at such employee.
11.18 Counterparts. This Agreement may be executed by the Parties in one or more counterparts, each of which will be considered one and the same agreement. This Agreement may be delivered by facsimile, email or other functionally equivalent electronic means of transmission. [signature page follows]
MSSA #: 00036602
MMaster Security Services Agreement
City of Moreno Valley – 2023-06-29 Page 10 of 10 (202305)
IN WITNESS WHEREOF, each of the Parties hereto has caus ed this Agreement to be executed and delivered by its duly authorized representative as of the date set forth below.
eSentire City of Moreno Valley
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Signature
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Signature
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Full Name
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Full Name
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Approved by eSentire Legal
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Approved as to legal form. City Attorney: Steven
Quintanilla
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Initials and Date Initials and Date