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HomeMy Public PortalAbout151-2020 - Fire - Lexipol LLC - Ongoing Licensing and Support of Package Previously ImplementedPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this Job A day of No ver4i,, , 2020, and referred to as Contract No. 151-2020, by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Lexipol, LLC, 2611 Internet Boulevard, Suite 100, Frisco, Texas, 75034 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide services to ongoing licensing and support (the "Project") in connection with the software package previously implemented by the Richmond Fire Department, which professional services shall include, but shall not be limited to, ongoing licensing, implementation, and customization of the software, supplemental publication services, and administrative support, as more fully described on Contractor's proposal. Contractor shall perform all services and provide all licensing and subscription materials described on Contractor's proposal marked as "Exhibit A" which Exhibit consists of eight (8) pages, and which is attached hereto and made a part hereof. Contractor agrees to abide by the same. The Parties agree that incorporation of Contractor's proposal (Copyright 20200 Lexipol, LLC - Rev 6/28/2018) as Exhibit A to this Agreement is not deemed as an abandonment of Contractor's copyrights nor is said incorporation a public dedication of said material. Additionally, Contractor expressly authorizes the City of Richmond to incorporate Contractor's proposal into this Agreement and disseminate or display said proposal in accordance with the Indiana Access to Public Records Act. The Parties agree this permission in connection with copying, attaching, posting, or disseminating the Exhibit does not otherwise affect or alter Lexipol's copyright protection of its subscription material or derivative work as further explained in Exhibit A. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. Contractor shall perform all work herein in a timely manner, conforming to all applicable professional standards. Contract No.151-2020 Page 1 of 7 The Contractor shall furnish all labor, material, equipment, and services necessary for the proper completion of all work specified. No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION City shall pay Contractor a total amount not to exceed Ten Thousand One Hundred Fifty Dollars and Zero Cents ($10,150.00) for complete and satisfactory performance of this Agreement and all work described on Exhibit A for the 2021 calendar year. SECTION IV. TERM OF -AGREEMENT This Agreement shall be effective as of January 1, 2021, and shall continue in effect until December 31, 2021. This Agreement shall not automatically renew. City shall retain two (2) options to renew this Agreement for the 2022 and 2023 calendar years at the same rates, terms, and conditions. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice, whether oral or written, by the Contractor to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; Page 2 of 7 d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. This Agreement may also be terminated by the City if a force-majeure event occurs and the results or aftereffects of said event causes the performance of this Agreement to become impossible or highly impracticable. Said event or results or aftereffects of said event would include events or effects which the parties to this Agreement could not have anticipated or controlled. Examples of a force-majeure event, or its results, would include, but would not be limited to, events such as an Act of God, an Act of Nature, an Act of Law, or an Emergency Act of Executive Enforcement of the Federal government, the State of Indiana, or local government. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the. Contractor's conduct or performance of this. Agreement, either willfully or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Additionally, nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City in connection with any content changes the City implements nor any alterations to or replacement of any policies in connection with the Project. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Coverage Limits A. Worker's Compensation & Statutory Disability Requirements Page 3 of 7 B. Employer's Liability C. Comprehensive General Liability Section 1. Bodily Injury Section 2. Property Damage D. Comprehensive Auto Liability Section 1. Bodily Injury Section 2. Property Damage E. Comprehensive Umbrella Liability $100,000 $1,000,000 each occurrence $2,000,000 aggregate $1,000,000 each occurrence $1,000,000 each person $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each occurrence $2,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence $2,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days Page 4 of 7 after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. SECTION VIII. IRAN INVESTMENT ACTIVITIES Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event City determines during the course of this Agreement that this certification is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, 'the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5- 22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety (90) day period set forth above. SECTION IX. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: 1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; Page 5 of 7 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION X. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. Page 6 of 7 In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By: Vicki Robinson, President By: Emily almer, Member I By: Matt Evans, Member APPROVED: / vid M.. now or Date: 1 I ZaZo "CONTRACTOR" LEXIPOL, LLC 2611 Internet Boulevard, Suite 100 Frisco, TX 7503.4 R,*�&-A Printed: VW I Title:D 12.Il Date: Page 7 of 7 1 0 Jill LEXI OL AGREEMENT" FOR USE OF SUBSCRIPTION MATERIAL. Agency's Name: Richmond Fire Department Agency's Address: 101 S 5th St Richmond, Indiana 47374 Attention: Office Manager June Marshall Lexipol's Address: 2611 Internet Boulevard, Suite 100 Frisco, Texas 75034 Prepared By Thomasine Bailey Effective Date: (to be completed by L.eApol:upon receipt of signed Agreement) The Agreement for Use of Subscription Material Is between Lexipol, LLC, a Delaware limited liability company ("Lexipol"), and the Agency identified above. The Agreement consists of (a) this cover sheet; (b) Exhibit A (Subscriptions Being Purchased and Subscription Fees) attached to this cover sheet,:(c) Exhibit B (General Terms and Conditions) attached to this cover sheet, and. (d) Exhibit C (Scope of Services) attached to this cover sheet. Capitalized terms that are used in Exhibit A and not defined therein shall have the respective meanings given to them in Exhibit B. Richmond. Fire Department Lexlpol Signature: Signature: Print Name Print Name: Van Holland Title: Title: Chief Financial. Officer Date Signed: Date Signed: Z I 10 [Z-i> Copyright 2020 © Lexipol Rev W28/20-1 a I I Scope of Services Policy Manual Constitutionally sound, up-to-date policies are the foundation for consistent, safe public safety operations and are key to reducing risk and enhancing personnel and community safety. Lexlpol's comprehensive policy manual covers all aspects of your agency's operations. • More than 155 policies researched and written by public safety attorneys and subject matter experts • Policies based on State and federal laws and regulations as well as nationwide best practices • Content customized to reflect your agency's terminology and structure Daily Training Bulletins (DTBs) Even the best policy manual lacks effectiveness if it's not backed by training. Lexlpol's Daily Training Bulletins are designed to help your personnel learn and apply your agency's policy content through 2-minute training exercises. • Scenario -based training ties policy to real -world applications • Understanding and retention of policy content is improved via a singular focus on one distinct aspect of the policy • Each Daily Training Bulletin concludes with a question that confirms the user understood the training objective • Daily Training Bulletins can be completed via computers or from smartphones, tablets or other mobile devices • Reports show completion of Daily Training Bulletins by agency member and topic Policy Updates Lexlpol's legal and content development teams continuously review state and federal laws and regulations, court .decisions and evolving best practices. When needed, we create new and updated policies and provide them to your agency, making It simple and efficient to keep your policy content up to date. • Updates delivered to you through Lexipol's web -based content delivery platform changes presented In side -by -side comparison against existing policy so you can easily Identify modifications/improvements • Your agency can accept, reject or customize each update Web -Based Delivery Platform and Mobile App (Knowledge Management System) Lexlpol's online content delivery platform, called KMS, provides secure storage and easy access to all your policy and training content, and our KMS mobile app facilitates staff use of policies and training completion. • Ability to edit and customize content to reflect your agency's mission and philosophy • Efficient distribution of policies, updates and training to staff • Archival and easy retrieval of all versions of your agency's policy manual • Mobile app provides in -the -field access to policy and training materials Reports Lexlpol's Knowledge Management System provides intuitive reporting capabilities and easy -to -read reports that enhance command staff meetings and strategic planning. • Track and report when your personnel have acknowledged policies and policy updates • Produce reports showing completion of Daily Training Bulletins • Sort reports by agency member, topic and other subgroups (e.g., shift, assignment) • Reduce the time your supervisors spend verifying policy acknowledgement and training completion Supplemental Publication Service Lexipol's Supplemental Publication Service (SPS) streamlines the storage of your agency's content, giving you one place to access procedures, guidelines, general orders, training guides or secondary policy manuals. • Electronically links department -specific procedural or supplemental content to your policy manual • Provides electronic Issuance and tracking for your agency's procedural or supplemental content • Allows you to create Da€ly Training Bulletins against your procedural content • Designed for standard operating guidelines, procedures, general orders or field guides Copyright 2020 U Lexipol - Rev 6/2a/2018 EXHIBIT A SUBSCRIPTIONS BEING PURCHASED AND SUBSCRIPTION FEES Agency is purchasing the following- 1 Annual Fire Policy Manual & Daily Tralning USD 11,056.00 USD 906.06 USD 10,150.00 Bulletins w/Supplemental Publication Service (Start: 1 /1 /2021 End: 12/31 /2021) Discount: USD 906.00 TOTAL: USD 10,150.00 *Fire pricing is based on 94 Fire Authorized Staff. *The above subscription services, and when applicable, implementation services, shall be Invoiced by Lexipol upon the execution of this Agreement. Discount Notes 5% Discount Copyright 2020 0 UlApol - Rev 6/28/201 a EXHIBIT B GENERAL TERMS AND CONDITIONS 1. Definitions. For purposes of this Agreement, each of the following terms will.have the meaning indicated in this Section: 1.1 Agency's Account. "Agency's Account" means the account by which Agency accesses the Subscription Materials. 1.2 Agreement; "Agreement' means (a) the cover sheet to which these General Terms and Conditions are attached, (b) Exhibit A (Subscriptions and Services Being Purchased and Related Fees) attached to that cover sheet, (c) these General Terms and Conditions, and (d) Exhibit C (Scope of Services). 1.3 Initial Term/Contract Year. "Initial Term" means the twelve-month period commencing on the Effective Date and "Contract Year" means each twelve-month period commencing on each anniversary of the Effective Date, except as may otherwise be modified by Section 2.1 Term below. 1.4 Derivative Work. "Derivative Wont' means a work that is based on the Subscription Material or any portion thereof, such as a revision, modification, abridgement, condensation, expansion, or any other form in which the Subscription Material or any portion thereof may be recast, transformed, or adapted. For purposes of this Agreement, a Derivative Work also includes any compilation that Incorporates any portion of the Subscription Material. Further, "Derivative Worn" includes any work considered a "derivative work" under United States copyright law. 1.5 Effective Date. "Effective Date" means the date specified on the cover sheet to which these General Terms and Conditions are attached. 1:6 Subscription Materials. "Subscription Materials" means the policy manuals, supplemental policy publications, daily training bulletins and other materials provided by Lexipol to Agency from time to time during the term of this Agreement under the subscriptions purchased by Agency as specified in Exhibit A. 2. Term and Termination. 2.1 Term. This Agreement is affective upon the execution and delivery of this Agreement by both Lexipol and Agency, and shall continue in effect until the expiration of the initial Term; provided, however, that the term of this Agreement will automatically be extended for successive one-year periods thereafter (each a Contract Year), unless either party gives written notice to the other party to the contrary not less than thirty (30) days prior to the expiration of the Initial Term or the then current Contract Year, as the case may be. Notwithstanding the foregoing, however, this Agreement will be subject to termination as provided in Section 2.2 below. 2.2 Termination. This Agreement may be terminated by either party, effective immediately, (a) in the event that the other party falls to discharge any obligation or remedy any default under this Agreement for a period of more than thirty (30) calendar days after it has been given written notice of such failure or default; or (b) in the event that the other party makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to the bankruptcy laws of any applicable jurisdiction. 2.3 Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, all of the rights granted to Agency by this Agreement to the subscriptions identified on Exhibit A shall automatically terminate. The termination or expiration of this Agreement shall not, however, relieve either party from any obligation or liability that has accrued under this Agreement prior to the date of such termination or expiration. The right to terminate this Agreement pursuant to Section 2.2 above shall be in addition to, and not in lieu of, any other remedy, legal or equitable, to which the terminating party shall be entitled at law or in equity. The provisions of Sections 1 (Definitions), 4 (Copyright; Derivative Works; Lexipol's Ownership), 5 (Right to Use; Limitations on Use of Subscription Material and Derivative Works), 7 (Privacy Policy), 8 (Policy Adoption), 9 (Disclaimer of Liability), 10 (Limitation of Liability), 13 (Miscellaneous), and this Section 2.3 shall survive the expiration or termination of this Agreement for any reason whatsoever. 3. Subscription Fees. Etc. 3.1 Subscription Fee/Invoicing. Lexipol will invoice Agency at the commencement of the Subscription Service (Initial Term) and thirty (30) days prior to the date for each Contract Year (refer to 2.1 above). Agency will pay to Lexipol the subscription fee specified on Exhibit A within thirty (30) days following Agency's receipt of the Invoice for such subscription and renewal fees. All invoices will be sent to Agency at the address for Agency specified on the cover sheet to which these General Terms and Conditions are attached. All payments will be made to Lexipol at the address for Lexipol specified on the cover sheet to which these General Terms and Conditions are attached. Lexipol reserves the right to increase pricing for subsequent Contract Years. 3.2 Taxes; Past Due Amounts. All amounts required to be paid under this Agreement, unless otherwise stated on Exhibit A, are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the subscriptions purchased by Agency under this Agreement and/or delivery by Lexipol to Agency of Subscription Material, all of which Agency will be responsible for and will pay in full, except for taxes based on Lexipol's net Income. in the event any amount owed by Agency is not paid when due, and such failure is not cured within ten (10) days after written notice thereof from Lexipol, then in addition to any other amount due, Agency shall pay a late payment charge on the overdue amount at a rate equal to the lower of (a) one percent (1 %) per month, or (b) the highest rate permitted by applicable law. 4. Copyright; Derivative Works; Lex1poi's Ownership. Agency acknowledges and agrees that the Subscription Material is a proprietary product of Lexipol, protected under U.S. copyright law, and that Lexipol reserves all rights not expressly granted in this Agreement. Subject to the terms and conditions contained in this Agreement, Lexipol hereby grants Agency the right to prepare Derivative Works, except as limited by the terms of this agreement; provided, however, that Agency acknowledges and agrees that Lexipol will be the sole owner of all right, title and interest in and to all Derivative Works prepared by or for Agency, including all copyrights and other intellectual property and proprietary rights therein or pertaining thereto, and Agency hereby assigns and transfers to Lexipol all right, title and interest in and to all Derivative Works prepared by or for Agency, including all copyrights and other intellectual property and proprietary rights therein or pertaining thereto. Agency will not remove from any copies of the Subscription Material provided by Lexipol to Agency any copyright notice or other proprietary notice of Lexipol appearing thereon, and shall include such copyright and other notices at the appropriate place on each copy of the Subscription Material and each copy of any Derivative Work made by or for Agency, in any form. 5. Right to Use; Limitations on Use of Subscription Material and Derivative Works. Subject to the terms and conditions contained in this Agreement, Lexipol hereby grants to Agency a perpetual, personal, fully paid -up, right to use, except as limited by the terms of this agreement the Subscription Material and any Derivative Works prepared by or for Agency, solely for the Agency's internal purposes, Agency will not use, copy, republish, lend, distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means or medium, electronic or mechanical, or by any Information storage and retrieval system, any Subscription Material or any Derivative Work prepared by or for Agency other than as expressly authorized by the immediately preceding sentence. Without limiting the generality of the foregoing, Agency will not import, upload, or otherwise make available any <!.ui Subscription Material or any Derivative Work prepared by or for Agency into or onto any third party knowledge, document, or other content management system or service without Lexipol's prior written consent. The foregoing does not, however, prohibit or restrict Agency from providing Subscription Material or Derivative Works prepared by or for Agency pursuant to an order from a court or other governmental agency or other legal process, or Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request, nor does it prohibit or restrict Agency from displaying the adopted/approved final policy document on a publicly accessible website for official Agency purposes, so long as Agency includes the appropriate copyright and other proprietary notices on such final policy document as required by Section 4 above. 6. Account Security. Agency is solely responsible for maintaining the confidentiality of Agency's user name(s) and password(s) and the security of Agency's Account. Agency will not permit access to Agency's Account, or use of Agency's user name(s) and/or password(s) by any person or entity other than authorized Agency personnel. Agency will immediately notify Lexipol in writing if Agency becomes aware that any person or entity other than authorized Agency personnel has used Agency's Account or Agency's user name(s) and/or password(s). 7. Privacy Policy. Lexipol will hold all information Agency provides in confidence unless required to provide information In accordance with an order from a court or other governmental agency or other legal process such as a Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request. Lexipol will use commercially reasonable efforts to ensure the security of information provided by Agency. Lexipol's system also uses Secure Socket Layer (SSL) Protocol for browsers supported by Lexipol application(s). SSL encrypts information as it travels between the Agency and Lexlpol. However, Agency acknowledges and agrees that Internet data transmission is not always 100% secure and Lexipol does not warrant or guaranty that information Agency transmits utilizing the Lexlpol system or online platform Is 100% secure. Agency acknowledges that Lexlpol may provide view -only access and summary information (including but not limited to, status of number of policies developed or in development, percentage of staff reviews of developed policies, and percentage of DTBs taken) to the Agency's affiliated Risk Management Authority, Insurance Pool or Group, or Sponsoring Association, if they are actively funding their member Agencies' Subscription Fees. 8. Policy Adoption. Agency hereby acknowledges and agrees that any and all policies and Daily Training Bulletins (DTBs) included in the Subscription Material provided by Lexipol have been individually reviewed, customized and adopted by Agency for use by Agency. Agency further acknowledges and agrees that neither Lexlpol nor any of its agents, employees or representatives shall be considered "policy makers" in any legal or other sense and that the chief executive of Agency will, for all purposes, be considered the "policy maker" with regard to each and every such policy and DTB. 9. ©isclaimer of Liability. Agency acknowledges and agrees that Lexlpol its officers, agents, managers, and employees will have no liability to Agency or any other person or entity arising from or related to the Subscription Materials, or any act or omission by Agency or its personnel pursuant to, or in reliance on, any of the Subscription Materials. 10. Limitation of Liability. Lexipol's cumulative liability to Agency and any other person or entity for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement or the use of any. Subscription Materials shall not exceed the subscription fees actually paid to Lexipol for the use of the Subscription Materials under this Agreement during the twelve-month period immediately prior to the assertion of such claim, demand or action. In no event shall Lexipol be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if Lexipol has been advised of the possibility of such damages. The limitations set forth in this Section shall apply whether Agency's claim is based on breach of contract, tort, strict liability, product liability or any other theory or cause of action. 11. Non -Transferability. The subscriptions and rights to use the Subscription Material granted by this Agreement are personal to Agency and Agency shall not assign or otherwise transfer the same to any other person or entity. 12. Confidentiality. From time to time during the term of this Agreement, either party may be required to disclose information to the other party that is marked "confidential" or the like, or that is of such a type that the confidentiality thereof is reasonably apparent ("Confidential Information"). The receiving party will: (a) limit disclosure of any Confidential Information of the other party to the receiving party's directors, officers, employees, agents and other representatives (collectively "Representatives") who have a need to know such Confidential Information in connection with the business relationship between the part€es.to which this Agreement relates, and only for that purpose; (b) advise Its Representatives of the confidential nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential and to use it only as permitted by this Agreement; (c) keep all Confidential Information confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential _information; and (d) not disclose any Confidential Information received by it to any third party (except as otherwise provided for. herein). Notwithstanding the foregoing, however, a party may disclose Confidential Information of the other party pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request, or Freedom of Information Act (FOIA) request, or Public Records Act (PRA) request, or similar method, provided that the party proposing to make any such disclosure will promptly notify, to the extent practicable, the other party in writing of such demand for disclosure so that the other party may, at its sole expense, seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. Each party shall be responsible for any breach of this Section by any of such party's Representatives. Miscellaneous. 13.1 Governing Law. This Agreement shall beconstrued in accordancewith, andgovemed by, the laws of the State of California, without giving effect to any cholce of law doctrine that would cause the law of any other jurisdiction to apply. 13.2 Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties hereto and hereby expressly supersedes any and all prior written and oral agreements and understandings with respect to the subject matter hereof, including without limitation any and all agreements and understandings pertaining to the use of the Subscription Materials by Agency. No representation, promise, inducement, or statement of intention has been made by any party hereto that is not embodied in this Agreement. Terms and conditions set forth In any purchase order, or any other form or document of Agency, which are inconsistent with, or in addition to, the terms and conditions set forth in this Agreement, are hereby objected to and rejected in their entirety, regardless of when received, without further action or notification by LeApol, and shall not be considered binding on Lex€pol unless specifically agreed to in writing by it. 13.3 Headings. The captions and other headings contained in this Agreement are for convenience only and shall not be considered a part of or affect the construction and interpretation of any provision of this Agreement. 13A Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document. 13.5 Amendment. No amendment, modification, or supplement to this Agreement shall be binding unless it is in writing and signed by the party sought to be bound thereby. 13.6 Attorneys' trees. If any action Is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys' fees and expenses of litigation. - --...._------ 13.7 General Interpretation,. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent. This Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or In favor of the party receiving a particular benefit under the Agreement. No rule of strict construction will be applied against any person or entity. 13.8 Notices. Any notice required by this Agreement or given in connection with it, shall be In writing and shall he given by personal delivery, by certified mail, postage prepaid, or by recognized overnight delivery service to the appropriate party at the address of such party stated on the cover sheet to which these General Terms and Conditions are attached, or such other address as such party may indicate by a notice delivered to the other party in accordance with the terms of this Section. Alternatively, electronic mall or facsimile notice is acceptable when acknowledged by the receiving party. 13.9 Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. Further, if a court of competent jurisdiction finds any provision of this Agreement to be Invalid or unenforceable, then the parties agree that the court should endeavor to give effect to the parties' intention as reflected in such provision to the maximum extent possible. 13.10 Waiver. Lexipol's failure to exercise, or delay in exercising, any right or remedy under any provision of this Agreement shall not constitute a waiver of such right or remedy. End of General Terms and Conditions