GPS & REMOTE DRUG / ALCOHOL OFFENDER MONITORING SERVICE PROVIDER AGREEMENT

Transcription

1 GPS & REMOTE DRUG / ALCOHOL OFFENDER MONITORING SERVICE PROVIDER AGREEMENT THIS AGREEMENT is made and entered into this 8th day of June 2016, by and between ABK Tracking, an Indiana corporation, with offices at 1201 N. Weinbach Avenue, hereinafter referred to as ABK, and Vanderburgh County Sheriff s Office, hereinafter referred to as Customer. WHEREAS, ABK is in the business of leasing certain products and providing certain services, and Customer wishes to purchase services from ABK; and W I T N E S S E T H: NOW THEREFORE, for and in consideration of the mutual covenants and promises of the parties as set forth herein, the parties agree ABK shall provide to Customer certain services according to the following terms and conditions: 1. Effective date: This Service Provider Agreement, together with the Service Provider Agreement General Terms, attached hereto as Addendum A, hereinafter referred to collectively as Agreement, shall be effective the day of, Term of Agreement: This Agreement shall remain in effect until. THIS AGREEMENT SHALL BE NULL AND VOID AFTER THIS DATE. IN THE EVENT THE PARTIES WISH TO CONTINUE THEIR RELATIONSHIP AFTER THE END OF THE CONTRACT END DATE, THEY SHALL EXECUTE A NEW AGREEMENT. 3. Services: ABK shall provide with such services listed on Attachment 1 as Customer shall request from time to time. Services shall be provided to Customer on such dates and at such times as the parties may agree, pursuant to Customer s orders. Customer understands and agrees that ABK has the right to accept or reject any Order. ABK may accept an Order by performing Services. Following submission of an Order by Customer, ABK will notify Customer confirming acceptance. Orders shall be governed by the terms of this Agreement, and in the event of a conflict between the terms and conditions of this Agreement and an Order, this Agreement shall control. 4. Notice: All notices and correspondence to be provided to the parties hereto shall be submitted to the following: Name: ABK Tracking Vanderburgh Country Sheriff s Office Attention: Danny Koester/Ryan Muensterman Sheriff David Wedding Address: 1201 N. Weinbach Avenue 3500 N Harlan Ave City, State Zip Evansville, IN Evansville, IN Telephone: FAX: rmuensterman@abkkcc.com dwedding@vanderburghsheriff.com

2 Customer Billing Address: Customer Shipping Address: same as above same as above 5. Customer s Responsibility: Customer specifically acknowledges that ABK has no control over the actions of any of Customer s representatives outside of the realm of the monitoring services ordered and provided; thus Customer shall hold ABK harmless from and indemnify ABK for any and all injury to person or property that result from the implementation and administration of provided services. 6. Attorney Fees: In the event any suit or action is commenced to interpret or enforce this Agreement, the prevailing party shall be entitled to recover a reasonable attorney fee, reasonable expenses and costs incurred in said action. 7. Full Agreement: All of the terms and conditions of the agreement between the parties are contained herein, and no representations or inducements have been made other than those specifically set forth herein. 8. Time: Time is expressly declared to be of the essence as to all terms and conditions herein contained. This Agreement shall be binding upon the parties hereto, their heirs and successors. IN WITNESS WHEREOF, the undersigned have set their hands hereto the date set forth above. ABK Tracking, Evansville Indiana By Danny Koester, President Sheriff s Office of Vanderburgh County, Indiana By David Wedding, County Sheriff Board of Commissioners of Vanderburgh County, Indiana By Bruce Ungethiem, President ATTEST: Brian A. Gerth, County Auditor DATE:

3 ATTACHMENT 1 PRICING SCHEDULE OF SERVICES Pricing schedule for services are PER Offender PER Day at a rate of $ A discount of $2.00 will be applied if multiple monitoring services are requested. Available Services: ERAM (Electronic Remote Accountability Monitoring) o Remote field sobriety testing utilizing the DARSYS Rapid Eye Technique o Remote medication adherence Active GPS Tracking & House Arrest o 24/7 active monitoring o Standard GPS Tracking and Curfew Capability MEMS Breath Alcohol Monitoring o.008 breath alcohol cutoff rate o Up to 10 tests per day o Instant result notification and photo verification Ignition Interlock Vehicular Breathalyzer o GPS & photo verification o Instant result notification These prices are guaranteed for a THREE YEAR term. The initial term of this Agreement shall be for the term of Three (3) years (the Initial Term ) commencing on the date this Agreement is executed by authorized officers of the Vanderburgh County Sheriff s Office. At the expiration of the Initial Term, this Monitoring Agreement will automatically renew for successive two (2) year periods (each a Renewal Term and collectively with the Initial Term the Term ) unless a party provides the other parties with notice of its intent not to renew this Agreement at least ninety (90) days prior to the expiration of the then current term.

4 ADDENDUM A Service Provider General Terms 1. DEFINITIONS Documentation means ABK s information manuals in printed or electronic form containing operating instructions and performance specifications that ABK generally makes available to users of its services and ABK delivers to Customer with products. Documentation does not include marketing materials. Fees means services fees, optional monitoring fees, and other charges owed by Customer to ABK according to the terms of the Agreement. Hardware means the standard hardware is that ABK delivers to furnish the Services under the Agreement. Products means any combination of Hardware, Software and Documentation. Services means any services ordered by Customer under the Agreement, including without limitation Monitoring Services, Installation Services, Maintenance Services, Management Services, Application Services, Consulting Services and Training Services (as those terms may be defined elsewhere in these General Terms, an order or Specifications). Software means the computer programs in object code form that Customer orders or ABK delivers under the Agreement, whether as a stand-alone product specifically identified in an order or as preinstalled software on hardware provided to Customer. Specifications is defined in Section 3.1 below. 2. THIRD PARTY BENEFICIARY Customer hereby expressly acknowledges that Corrisoft is a third-party beneficiary of this Agreement, and accordingly the provisions of such this Agreement may be enforced by ABK or by Corrisoft. 3. SERVICES 3.1 Services. During the term of this Agreement, ABK will provide Customer the services as set out in each order submitted by Customer. Customer acknowledges that it is aware of all applicable specifications related to the services to be provided pursuant to this Agreement. The Specifications for the services provided pursuant to this Agreement are posted on the Corrisoft web site located at which may be amended from time to time by Corrisoft. These Specifications are incorporated herein by this reference. 3.2 Services Substitution and Upgrade. Customer acknowledges that ABK may upgrade its services from time to time during the term of this Agreement. 3.3 Cooperation. Customer will cooperate with ABK as reasonably necessary for ABK s delivery and performance of services in the time frame set forth in each order.

5 4. TRAINING Provision of Training. ABK shall provide training courses to Customer s representatives on the use of the products and services provided pursuant to this Agreement. All training shall be conducted in Customer s facility or such other location as Customer shall request. 5. CONFIDENTIALITY 5.1 Confidential Information. Confidential Information shall mean (i) any and all proprietary information, technology, software (in source, binary, object code or any other form), trade secrets, technical data, data compilations and know-how, whether in written, digital, oral or other form, and any and all intellectual property rights related thereto that (A) derives independent economic value, actual or potential, from not being generally known to the public or to any other third party who can obtain economic value from its disclosure or use, and (B) is the subject of efforts by disclosing party that are reasonable under the circumstances to maintain its secrecy; (ii) any information that the receiving party would conclude is (A) unique to disclosing party that has a significant business purpose and is not known or generally available from sources outside of disclosing party or typical of industry practice, or (B) the disclosure of which would have a material adverse effect on any of the businesses of disclosing party; (iii) any Confidential Information that is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as being confidential or proprietary, or that could be considered of a proprietary or confidential nature; or (iv) any Information that is required by law or by disclosing party s internal policies, provided to the receiving party in writing, to be kept confidential. Disclosing party s failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder. Confidential Information does not include materials or information that: (i) is generally known by third parties as a result of no act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure; (iii) was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party s obligations of confidentiality; (iv) was independently developed by the receiving party without use of Confidential Information of the disclosing party; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party provides written notification within ten (10) days of disclosing party s notice of the pending disclosure so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide assistance to the disclosing party where the disclosing party attempts to obtain a protective order. 5.2 Protection of Confidential Information. Each party will protect the secrecy of any and all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information. Neither party will use or disclose the other party s Confidential Information, except as permitted in this Section or for the purpose of performing its obligations under the Agreement. The confidentiality obligations of each party under this Agreement shall survive the expiration or termination of this Agreement or of any Order. Upon termination of the Agreement, each party will cease all use of the other party s Confidential Information and will return, or at the other party s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party s possession or under its control, and will destroy all copies of Confidential Information located on its computers, disks and other digital storage devices within thirty (30) days. Upon request, a party will certify in writing to its compliance with this Section.

6 5.3 Data Warehousing. ABK shall store Customer representative data for 15 days after representative has been terminated or completes the program. Customer may request longer archival periods, and ABK will extend the archival period so requested upon approved request. 6. WARRANTY LIMITATIONS AND DISCLAIMERS IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ABK SHALL NOT BE LIABLE FOR ANY INJURY TO PERSON OR PROPERTY SUFFERED BY ANY PERSON UTILIZING ANY PRODUCT OR SERVICE PROVIDED HEREUNDER THROUGH CUSTOMER, INCLUDING ANY CRIMINAL OFFENDER OR PAROLEE, EXCEPT AND TO THE EXTENT THAT ANY SUCH INJURY IS THE DIRECT RESULT OF ABK S OWN CONDUCT, NOR SHALL ABK BE LIABLE FOR ANY INJURY TO PERSON OR PROPERTY SUFFERED BY ANY PERSON AS A RESULT OF THE ACTION OF ANY PERSON UTILIZING ANY PRODUCT OR SERVICE PROVIDED HEREUNDER THROUGH CUSTOMER, INCLUDING ANY CRIMINAL OFFENDER OR PAROLEE. 6.1 Customer Warranties and Indemnity. Customer shall defend, indemnify and hold ABK and Corrisoft harmless against any third-party claim based upon the breach of any express warranty by Customer that is more extensive than warranties made herein by ABK. In addition, Customer will indemnify ABK and Corrisoft against all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys fees, which ABK or Corrisoft may incur as a result of claims in any form by third parties arising from: (i) Customer s use of the products and services; (ii) intellectual property infringement claims related to Customer s use of the products and services in combination with any other products or services not provided by ABK or (iii) intellectual property infringement claims related to Customer s modifications of the products. 7. LIMITATION OF LIABILITY 7.1 Scope. THE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY TO ANY AND ALL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. 7.2 Excluded Types of Damages and Indemnity. Except as set forth in Section 7, neither CUSTOMER, ABK NOR CORRISOFT SHALL HOLD EACH OTHER OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS LIABLE FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, TOLL FRAUD, OR COST OF COVER, EXCEPT AND TO THE EXTENT SUCH INJURY IS THE DIRECT RESULT OF THE OTHER PARTY S OWN CONDUCT. ANY CLAIM FOR INDEMNITY BY CUSTOMER, ABK OR CORRISOFT AGAINST EACH OTHER SHALL BE BASED ON COMMON LAW PRINCIPLES. THIS AGREEMENT CREATES NO INDEMNITY RIGHTS IN THE PARTIES. 7.3 Aggregate Liability. UNLESS OTHERWISE SPECIFICALLY PROVIDED FOR HEREIN, THE TOTAL AGGREGATE LIABILITY OF ABK FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF PRODUCTS OR SERVICES UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE MONTHS PRIOR TO THE ACCRUAL OF THE MOST RECENT CAUSE OF ACTION. THIS AMOUNT IS SPECIFICALLY UNDERSTOOD AND AGREED TO BE LIQUIDATED DAMAGES AND THUS FULL COMPENSATION FOR ANY LOSS SUFFERED BY CUSTOMER.

7 8. GOVERNING LAW AND DISPUTE RESOLUTION 8.1 Choice of Law. This Agreement and any disputes arising out of or relating to the Agreement ( Disputes ) will be governed by the laws of the state of Indiana, excluding conflict of law principles. 8.2 Injunctive Relief. ABK may, at its option and at any time during the dispute resolution process, seek injunctive relief in any court of competent jurisdiction (including but not limited to preliminary injunctive relief). The parties acknowledge that ABK has a vital interest in enjoining any violation of confidentiality obligations, including unauthorized use of the Software, because damages may not adequately compensate ABK for any infringements of its intellectual property rights. 8.3 No Withholding. Customer shall not withhold payment of any undisputed amounts due under the Agreement nor offset any amount due, nor will CUSTOMER retain any amount in anticipation of a dispute for which notice has not been received. 9. FORCE MAJEURE Neither party shall be liable to the other for delays, failure in performance or damages due to: fire, explosion, power failures, pest damage, lightening or power surges, weather conditions, solar flares, clouds, or with regard to the provisioning of services other than installation services, strikes or labor disputes, water, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, performance or availability of communications services or network facilities, or other causes beyond the party s reasonable control. The foregoing does not apply to payments of fees for products received, or for services performed, WITH THE understanding that any payment made under this situation may be late. Neither party shall incur any liability due to failure or delay in performance of any obligation caused by Force Majeure, at least for the duration of the Force Majeure. 10. ASSIGNMENT AND SUBCONTRACTING Neither party may assign the Agreement or any rights or obligations hereunder; provided that ABK may transfer this Agreement to a third party without consent of Customer in connection with the merger or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of and be binding upon the parties hereto and all permitted successors and assigns. 11. TERM AND TERMINATION Effect of Termination. Upon termination of this Agreement, Customer agrees that it will immediately: (i) discontinue representing themselves as a user of ABK products and services, (ii) discontinue the use of any name, trade name or trademark associated with ABK, Corrisoft or the products and services, and (iii) return or destroy any advertising, promotional or technical material provided for Customer s use at no cost during the terms of this Agreement. Upon termination of this Agreement, (a) each party shall promptly return all Confidential Information, products, and any other information, documents, manuals, equipment and other materials belonging to the other party within ten (10) days after termination of this Agreement; and (b) any and all services provided for herein shall terminate.

8 12. MISCELLANEOUS 12.1 Compliance. Products and any technical information provided under this Agreement are subject to the export laws and regulations of the United States. By executing the Agreement, Customer represents that it is not a resident or citizen of any country currently embargoed by the United States (a list of embargoed countries, denied persons and other restrictions is available from the U.S. Department of Commerce). Customer will observe all applicable laws when using products supplied by ABK and the work product of any Services provided by ABK. Customer will indemnify and hold ABK and its suppliers harmless from any and all costs, expenses, liabilities and claims based upon Customer s failure to comply with this Section Notices and Amendments in Writing. All notices required under this Agreement and any modifications or amendments to the Agreement or any order must be in writing and shall be effective (i) upon receipt if delivered by hand or (ii) three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, when addressed to the mailing addresses set forth hereinabove, or at such other address as either party may designate in a written notice to the other party. Any modification or amendment to the Agreement, or to any order, must be in writing signed by both parties Independent Contractors. This Agreement does not create any agency, employment, partnership, joint venture, or other joint relationship between the parties hereto, and neither party has any authority to bind the other except as herein provided Severability. If and to the extent any provision of the Agreement is held illegal, invalid or unenforceable in whole or in part, such provision or such portion thereof will, to that extent, be ineffective as to the jurisdiction in which it is illegal, invalid or unenforceable, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity or enforceability of such provision in any other jurisdiction, nor shall it affect the legality, validity or enforceability of any other provision of this Agreement No Waiver. The failure of either party to assert any of its rights under the Agreement shall not constitute a waiver by that party of its right thereafter to enforce its rights under the Agreement. End of ADDENDUM A