Clallam County, WA 2006 Securus Contract-Juvenile
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ffi-) sEcuB*''p-.,.. Master Services Agreement ctailam county Juvenite & Famity Services (wA) This Master services Agreement (this 'Agreemenl") is made tnis .lLf aay l-2006 (the "commencement Date") between Evercom Systems, lnc., a Delaware corporation and a SECURUS |echnblogies, lnc. company (Ve," "us," or "Provide/), and Clallam County Juvenile & Family Services, Port Angeles, Washington ("you' or'Customef). "lllfrt 1. Applications. This Agreement specifies the general terms and conditions under \,vhich we will perform certain inmaterelated services and applications (the "Application(s)") for you. Additional terms and conditions with respect to the Applications will be specitied in the schedules entered into by the parties and attached hereto (the "Schedules"). The Schedules are incorporated into this Agreement and are subject to the lerms and condilions ol this Agreement. ln the event of any conflict between this Agreement and a Schedule, the terms ot the Schedule shall govern. ln the event of any conrlict between any two Schedules for a particular Application, the latest in time shall govern. 2. Use of Apolications. You granl us the exclusive right and license to install, maintain, and derive revenue lrom the Applications through our inmate systems (including, without limitation, lhe related hardware and software) (the'System") located in and around lhe inmate confinement lacilities identiried on the Schedules (the "Facilities"). You are responsible for the manner in which you use the Applications. Unless expressly permitted by a Schedule or separate written agreement with us, you will not resell the Applications or provide access to the Applications (other than as expressly provided in a particular Schedule), directly or indirectly, to third parties. 3. Compensation. Compensation for each Application, if any, and the applicable payment addresses are as stated in the Schedules. 4. Term. The initial term o, this Agreement (the'lnitial Term") shall begin on the Commencement Date and shall end on the date that is 5 years lhereafter, Thereafter, unless one party delivers to the other written notice of non-renewal at least 90 days prior to the end of the lhen current term, lhis Agreement shall automatically renew ror successive periods of 1 year each. Notwithstanding anything to the contrary, the terms and conditions of this Agreement shall continue lo apply to each Schedule for so long as we continue to provide the Application to you after lhe expiration or earlier termination o, this Agreement. 5. Service Level Aoreement and Limited Remedy. We are commined to providing you with reliable, high quality Applications, and we offer certain assurances about the quality ol our Applications (the "Service Level Agreemenf). The Service Level Agreement lor each Application is as set forlh in the applicable Schedule. THE SEBVICE LEVEL AGREEMENT IS THE SOLE AND EXCLUSIVE BEMEDY FOR FAILURE OR DEFECT OF AN APPLICATION. EXCEPT AS PROVIDED IN THIS AGREEMENT, PBOVIDEB IS MAKING NO FIEPFIESENTATION OR WABBANTY OF ANY KIND, EXPRESS, IMPLIED OFI STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PAFITICULAR PURPOSE. WE DISCLAIM ANY IMPLIED WARBANTY ABISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND NONINFRINGEMENT. 6. Software License. We grant you a personal, non-exclusive, non-transferable license (without the right to sublicense) to access and use certain proprietary computer sottvvare products and materials in connection with the Applications (the 'Sottware'). The Software includes any upgrades, moditications, updates, and additions to existing features that we implement in our discrelion (the'Updates"). Updates do not include additional leatures and significant enhancements to existing leatures. Your rights to use any third-party sottware product that we provide shall be limited by the terms of the underlying license that we obtained for such product. The Sottware is to be used solely lor your internal business purposes in connection with the Applications al the Facilities. You will not (i) permit any parent, subsidiary, afriliated entity, or third parly to use the Software, (ii) assign, sublicense, lease, encumber, or otherwise transrer or attempt lo transler the Software or any portion thereof, (iii) process or permit to be processed any data ot any other party with the Software, (iv) alter, maintain, enhance, disassemble, decompile, reverse engineer or otherwise modify the Sottware or allow any third parly to do so, (v) connect the Software to any products that we did nol lurnish or approve in wriling, or (vi) ship, transfer, or export the Soltware into any country, or use the Software in any manner prohibited by the expori laws of the United States. We are not liable with regard to any Soltware that you use in a prohibited manner. 7. Ownershig and Use. The System and Applications shall at all times remain Provider's sole and exclusive property unless prohibited by law. Customer shall have the unlimited right to use all records, data, and information acquired through use ol the System and Application for investigative and law enlorcement purposes. We (or our licensors, if any) have and will retain all right, title, interest, and ownership in and to (i) the Sottware and any copies, custom versions, modifications, or updates of the Sottware, (ii) all related documentation, and (iii) any trade secrets, know-how, methodologies, and processes related to our Applications, the System, and our other products and services (the "Malerials"). The lvlaterials constitute proprielary information and trade secrets of Provider and its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent. 8. Leoalitv. The System may allow you to monitor and record inmate telephone calls. By providing the System, we make 9. Conlidentialitv. The System, Applications, and related call records and information (the "Confidential lnformation") shall no representation or warranty as to the legality o, recording or monitoring inmate telephone calls. Further, you retain custody and ownership of all recordings; however you grant us the right to access such recordings on a limited basis for quality control purposes. at all times remain conlidential to Provider and shall not be disclosed to any third party except as otherwise required by Washington law. Because you will be able to access confidential information of third parties that is protected by certain . .."r*u" ,"lli"'iiln?""1h:: l8ffillili n'"""1'ooJnl,", ' ,o- o., 0. lederal and state privacy laws through the Software and Appljcations, you shall only access the Sottware with computer systems that have effective firewall and anti-virus protection. '10. lndemnification. To the lullest extent allowed by applicable law but subject to the limitations in this Agreement, each party (the 'lndemnilying Party") will delend, indemnily and hold harmless the olher party (the "lndemnified Pat/) from and against any loss, cost, claim, demand, liability, damage, and expense (including, without limitation, reasonable attomey's ,ees) brought or claimed by third parties ("Claims"), arising out of gross negligence, willful misconducl, intellectual propeny infringemenl or alleged intellectual property inrringement by the lndemnifying Party, its employees, agents, or contractors in the pertormance of this Agreement. The lndemnilied Party shall notify the lndemnitying Party promptly in writing of any Claims for which the lndemnilied Party alleges that the lndemnirying Party is responsible under this section and tender the delense of such Claims to the lndemnitying Party. The lndemnitied Party shall cooperate in every reasonable manner with the defense or settlement of such Claims at the lndemnifying Party's expense. The lndemnilying Party shall not be liable under this section for settlements by the lndemnified Party of any Claims unless the lndemnitying Party has approved the settlement in advance or unless the delense of such Claims has been tendered to the Indemnilying Party in writing and lhe lndemnifying Party has tailed to promptly undertake the defense. 'l'l. lnsurance. We maintain comprehensive general liability insurance having limits of not less than $2,000,000.00 in the aggregate. You agree to provide us with reasonable and timely written notice o, any claim, demand, or cause of action made or brought against you arising out of or related to the utilization of the Applications and the System. We have the right to defend any such claim, demand, or cause of action al our sole cosl and expense and within our sole and exclusive discretion. You agree not to compromise or settle any claim or cause ol action arising out ol or related to the utilization of the Applications or System without our prior written consent, and you are required to assist us with out delense ol any such claim, demand, or cause of action. 12. Default and Termination. lf either party defaults in the performance o, any obligation under this Agreement, then the non-defaulting party shall give the defaulting party written notice of its default setting rorth with specificity the nature ol the default. lf the defaulting party lails to cure its default within 30 days after receipt of the notice of default, then the nondefaulting party shall have the right to terminate this Agreement upon 30 days written nolice and pursue all other remedies available to the non-defaulting party, either at law or in equity. Notwithstanding the foregoing, the 30 day cure period shall be extended to 90 days iI the delault is not reasonably susceptible to cure within such 30 day period, but only il the delaulting party has begun to cure the default during the 30 day period and diligently pursues the cure of such default. Notwithstanding the loregoing, iI you breach your obligations in the section entitled "Software License' or lhe section entitled "Conlidentiality", then we shall have the right to terminate this Agreemenl immediately. 13. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY lN THIS AGREEMENT, NEITHEB PARTY SHALL HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEOUENTIAL DAMAGES, LOSS OF PROFITS OR INCOME, LOST OB COBBUPTED DATA, OR LOSS OF USE OR OTHEB BENEFITS, HOWSOEVER CAUSED AND EVEN IF DUE TO THE PARTY'S NEGLIGENCE, BFIEACH OF CONTRACT, OR OTHER FAULT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAIVIAGES. EXCEPT FOR CLAIMS WHICH ARE INDEMNIFIABLE UNDEB SECTION 10, OUR AGGREGRATE LIABILITY TO YOU RELATING TO OR ARISING OUT OF THIS AGREEMENT, SHALL NOT EXCEED THE AMOUNTS PAID TO CUSTOMER UNDEB THIS AGREEMENT. 14. Uncontrollable Circumslance. We reserye the right to renegotiate or terminate this Agreement upon 60 days advance written notice il circumstances other than those under our control related to lhe Facilities (including, without limitation, changes in rates, regulalions, or operations mandated by law; material reduction in inmate population or capacity; material changes in jail policy or economic conditions; acts of God; actions you take for security reasons (such as lockdowns)) negatively impact our business; however, we shall not unreasonably exercise such right. Further, Customer acknowledges that Provider's provision o, the services is subject to certain ,ederal, state or local regulatory requirements and restrictions which are subject to change rrom time-to-time and nothing contained herein to the contrary shall restrict Provider from taking any steps necessary to perform in compliance therewith. '15. lniunctive Relief. Both parties agree that a breach of any oI the obligations set forth in the sections entitled "Software License," "Ownership and Use," and "Confidentiality' would irreparably damage and create undue hardships for the olher party. Thererore, the non-breaching party shall be entitled to immediate court ordered injunctive relief to stop any apparent breach of such sections, such remedy being in addition to any other remedies available to such non-breaching party. 16. Force Maieure. Either party may be excused Irom performance under this Agreement to the extent that perlormance is prevented by any act of God, war, civil disturbance, terrorism, slrikes, supply or market, Iailure of a third party's performance, failure, fluctuation or non-availability o, electrical power, heat, light, air conditioning or telecommunications equipment, other equipment failure or similar event beyond its reasonable control; provided, however that the affected party shall use reasonable efforts to remove such causes ol non-perlormance. 17. Notices. Any notice or demand made by either party under the terms ot this Agreement or under any statute shall be in writing and shall be given by personal delivery; registered or certified U.S. mail, postage prepaid; or commercial courier delivery service, to the address below the party's signature below, or to such other address as a parly may designate by written notice in compliance with this section. Notices shall be deemed delivered as follows: personal delivery - upon receipt; U.S. mail - five days alter deposit; and courier - when delivered as shown by courier records. 18. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws ol the State ol Washington. No waiver by either party of any event of default under this Agreement shall operate as a waiver of any subsequent default under the terms o, lhis Agreement. lf any provision of this Agreement is held to be invalid or l/aster Services Agreement - Page 2 of 3 O SECURUS Technologies, lnc. - Proprietary & Confidential - Fom 4.7.05 unenforceable, the validity or enforceability of the other provisions shall remain unaffected. This Agreement shall be binding upon and inure to the benefit oI Provider and Customer and their respective successors and permitted assigns. Except for assignments to our affiliates or to any entity that succeeds to our business in connection with a merger or acquisition, neither party may assign this Agreement without the prior written consent of the other party. Each signatory to this Agreement warrants and represents that he or she has the unrestricted right and requisite authority to enter into and execute this Agreement, to bind his or her respective party, and to authorize the installation and operation of the System. Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership, or joint venture between Customer and Provider. This Agreement cannot be modified orally and can only be modified by a written instrument signed by all parties. The parties' rights and obligations, which by their nature would extend beyond the termination, cancellation, or expiration of this Agreement, shall survive such termination, cancellation, or expiration (including, without limitation, any payment obligations for services or equipment received prior to such termination, cancellation, or expiration). This Agreement may be executed in counterparts, each of which shall be fully effective as an original, and all of which together shall constitute one and the same instrument. This Agreement, together with the exhibits and Schedules, constitutes the entire agreement of the parties regarding the subject matter set for.th herein and supersedes any prior or contemporaneous oral or written agreements regarding the subject matter set forth herein. EXECUTED as of the Commencement Date. 棚 1甲 ∴鳳:& SO市 iOё y: S‐ PROV!DER: ‐ ■■‐ lsy:tellinよ EI16嵩 Bソ ￨ ‐ Nam‐ ￨￨ N ITitle: ￨ T‖ lё :Date:￨ : Datё : -ob Jヨ ￨ 111i:ilii::illllll:lllliLill:￨￨￨￨11:￨lil::￨:￨￨￨￨￨11:≧ `ユ : iご :`` Ponハ lod。 こ ￨"A900031 :￨￨￨￨ 嫌ょ 喩 霧 ￨lm61 Attenlonllハ ccounts ReCO市 abll■ Master Services Agreement - Page 3 of 3 O SECURUS Technologies, lnc. - Proprietary & Confidential - Form 4.7.05 ir:c*rvoln$rr::1:i Schedule Ctalff,m County Juvenile & Family Services (WA) U 2006 (the "schedule Effective Date") between Evercom the of Systems, lnc., a Delaware corporaiion ino u'sfcIH[S r""nnologies, lnc. company ("we" or 'Provide/'), and Clallam County Juvenilq &1fl$mily Services ("you" or "Custome/') and is pad of and governed by the Master Services Agreement, dated as ol '1' I I , 2006 (the "Agreement") executed by the parties. The terms and conditions of the Agreement are incorporated herein by reference. il-day This Schedute is made as of A. "/I/ ' Applications. We will provide the lollowing Applications: CALL MANAGEMENT SERVICE DESCRIPTION: Diqital Call Manaoer. Digital Call Manager ("DCM") provides automatic placement ol calls by inmates without the need for conventional live operator services. ln addition, DCM provides the capability to (a) monitor and record inmate calls, (b) mark certain numbers as private to disable the monitoring and recording function, (c) automatically limit the duration of each call to a certain period designated by us, (d) maintain call detail records in accordance with our standard practices, (e) automatically shut the System on or off, and (f) allow free calls to the extent required by applicable law. We will be responsible for all billing and collections of inmate calling charges but may contract with third parties to perform such functions. DCM will be provided at the Facilities specified in the chart below. COMPENSATION: Collect Calls. We will pay you commission (the "Commission") in the amount of the applicable Collect Commission Percentage (as specified in the chart below) of the applicable revenue base (as specified in the chart below) that we earn through the completion of collect calls placed lrom the Facilities. "Gross Revenue" means all charges billed by us relating to collect calls placed from the Facilities. Gross Revenue may be verilied by the detailed call records maintained by us, without any deduction or credit for bad debt or for billed calls that for any reason are not collected. Regulatory required and other items such as federal, state and local charges and taxes and fees are excluded. We shall remit the Commission for a calendar month to you on or before the 30th day after the end of the calendar month in which the calls where made (the "Payment Date"). All Commission payments shall be final and binding upon you unless we receive written objection within 60 days after the Payment Date. Your payment address is as set forth in the signature block below. You shall notify us in writing at least 60 days prior to a Payment Date of any change in your payment address. FACILITIES AND RELATED SPECIFICATIONS: Facility Name and Address Clallam County Juvenile & Family Services 1912 West 18th Street Port Anqeles, WA 98363 Type of Call Management Service Collect Revenue Base lor Commission Percentage Calculation ol DCM 30% Gross Payment Address Commission Same D:G:TAL CALL MANAGER SERV:CE LEVEL AGREEMENT: We agree to repair and maintain the System (inclusive of the SECUREworkstation delined below) in good operating condition (ordinary wear and tear excepted), including, without limitation, furnishing all parts and labor. All such maintenance shall be conducted in accordance with the service levels in ltems 1 through 10 below. All such maintenance shall be provided at our sole cost and expense unless necessitated by any misuse of, or destruction, damage, or vandalism to, the System by you (not inmates at the Facilities), in which case, we may recoup the cost of such repair and maintenance through either a Commission deduction or direct invoicing, at our option. You agree to promptly notify us in writing after discovering any misuse of, or destruction, damage, or vandalism to, the System. lf any portion of the System is interfaced with other devices or software owned or used by you or a third party, then we shall have no obligation to repair or maintain such other devices or software. This SERVICE LEVEL AGREEMENT does not apply to any provided Openworkstation(s) (see below). For the services contemplated hereunder, we may provide, based upon the facilities requirements, two types ol workstations (personal computer/desktop/laptop/terminal): (i) The "SECUREworkstation" is designed to satisfy facilities that require a secure direct link and full technical support of the Applications. Utilizing the Windows XP operating system, the SECUREworkstation is subject to full technical and field support services described herein, access to all applicable Applications and restricted user rights for Iacility personnel. No other third party software may be installed on the SECUREworkstation; and (ii) The "Openworkstation" is an open non-secured workstation which permits administrative user rights for facility personnel and allows the facilities an ability to add additional third party software. Ownership of the Openworkstation is transferred to the facility along with a three-year product support plan with the hardware provider. We have no obligation to provide any technical and field support services lor an Operworkstation. CUSTOMER IS SOLELY RESPONSIBLE FOR THE MAINTENANCE OF ANY OPEAA/VORKSTATION(S)." 1. Outaoe Report: Technical Supoort. lf either ol the following occurs: (a) you experience a System oulage or malfunction or (b) the System requires maintenance (each a "System Event"), then you will promptly report the System Evenl to our Technical Support Department ("Technical Support"). You may contact Technical Support 24 hours a day, seven days a week (except in lhe event of planned or emergency outages) by telephone at 866-558-2323, by email at Technicalsupport@ Evercom.net, or by facsimile at 800-368-3168. We will provide you commercially reasonable notice, when practical, prior to any Technical Support outage. For your calls to Technical Support, the average monthly call answer time is generally 120 seconds or less, provided however, that we will endeavor (but will not be obligaled) to achieve an average monthly call answer time ol 30 seconds. 2. Prioriw Classifications. Upon receipt of your report of a System Event, Technical Support will classify the System Event as one ol the lollowing tour priority levels: "Priority 1 60% or more of the functionality oI the System is adversely atfected by the System Event "Ptiorily 2" 30%-59% of lhe lunctionality of the System is adversely affected by the System Event "Priority 3' 5%-29% o, the functionality of the System is adversely affected by the System Event "Priority 4' Less than 5% of the functionality of the System is adversely attected by the System Event 3. Besponse Times. After receipt notice of the System Event, we will respond to the System Event within the following time periods with a 9570 or greater rate ol accuracy: Priority 1 Priority 2 4 hours 12 hours Priority 3 24 hours Priority 4 36 hours 4. Response Process. ln all instances, Technical Support will either initiate remote diagnosis and correction ol the System Event or dispatch a rield technician to the Facility (in which case the applicable regional dispatcher will contact you with the technician's estimated time o, arrival), as necessary. 5. Performance ol Service. All of our repair and maintenance ol the System will be done in a good and workmanlike manner at no cost lo you except as may be otheMise set forlh in the Agreement. Any requested modification or upgrade to the Sysiem that is agreed upon by you and us may be subject to a charge as set forth in the Agreement and will be implemented within the time period agreed by the parties. 6. Escalation Contacts. Your account will be monitored by the applicable Territory Manager and Regional Service l\,lanager. ln addition, you may use the lollowing escalation list it our response time exceeds 36 hours: lirst to the Technical Support Manager or Flegional Service l\,lanager, as applicable, then to the Director of Field Services, then to the Executive Director, Service. 7. Notice of Resolution. After receiving internal notification that a Priority 1 System Event has been resolved, a member of our management leam will contacl you to confirm resolution. For a Priority 2 or 3 System Event, a member of our cuslomer satisfaction leam will contirm resolution. 8. 9. Monitorino. We will monitor our back otfice and validation systems 24 hours a day, seven days a week. Required lGR. You are responsible for providing a dedicated isolaled grounded receptacle ("lcR") for use in connection with the primary System. Upon request we will provide you with the specifications for the lGB. lf you are unable to or do not provide the lGB, then we will provide the IGR on a time and materials basis at the installer's then-current billing rates, provided that we are not responsible Ior any delay caused by your failure to provide the lGR. 10. End-User Billinq Services and Customer Care. Our Correclional Billing Services division will maintain dedicated customer service representatives to handle end-user issues such as call blocking or unblocking and setting up end-user payment accounts. The cuslomer service representatives will be available during reasonable business hours Monday through Saturday by telephone at 800-844-6591, by email at Support@CorrectionalBillingservices.com, and by facsimile at A00-578'2627 - ln addition, we will maintain an automated inquiry system on a toll-tree customer service phone line that will be available to end-users 24 hours a day, 7 days a week to provide basic information and handle most routine activities. We will also accept payments from end-users by credit card, check, and cash deposit (such as by money order or Western Union transler). Exhibit A:Customer Statement of Work Clal:am County JuvenHe&Family Services(WA) Agreement'')executed between Evercom Made part hereto and governed by of the Master Services Agreement(the “ Systems, !nc, a De!aware corporalon and a SttCURUS ttechno!ogies, !nc.company(“ we"Or“ Provider'), and cla‖ am County」 uvenile & Fami!y SeⅣ ices(“ yOu" Or“ Customer')dated as Of tthe terms and condnions Of sald Agreement are incorporated herein by reference. A.Applications The parties agree that the Applications listed in the Service Schedule sha‖ be provided and in accordance with the Service Level Agreements as described in the app!icab!e section ofthe Service Schedule to the Agreement. B. Eouioment. We wi!l provide the following equipment in conneclon wnh the Applicalons:Upgrade to DCM from equipment existing as ofthe Schedule Effective Date. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WR:TING IN THiS SCHEDULE,NO APPLiCAT10NS,EQUIPMENT, lNSTALLAT10N AND SPECIAL REQUIREMENTS OTHER THAN THOSE STATED ABOVE WiLL BE PROVIDED;NO ORAL AGREEMENTS OR STATEMENTS ARE BIND:NG. EXEC∪ 丁ED as ofthe Schedule Effective Date. By: