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Home My WebLink About20043363.tiff RESOLUTION RE: APPROVE FACILITY INMATE SERVICES AGREEMENT AND AUTHORIZE CHAIR TO SIGN - EVERCOM SYSTEMS, INC. WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Facility Inmate Services Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Sheriff's Office, and Evercom Systems, Inc., with further terms and conditions being as stated in said agreement, and WHEREAS,after review,the Board deems it advisable to approve said agreement,a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County,Colorado,that the Facility Inmate Services Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Sheriff's Office, and Evercom Systems, Inc., be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said consent. The above and foregoing Resolution was,on motion duly made and seconded, adopted by the following vote on the 22nd day of November, A.D., 2004. /�� BOARD OF COUNTY COMMISSIONERS /1/72a% WF�D COUNTY, COLORADO ��/j/�T/// Robert D. Masden, Chair rk to the Board ' I86I • William H. erke, Pro-Tem -'' eputy Clerk t the Board eLo M. J. Geile APPROV AS TO FO EXCUSED David E. Long minty A for ey 4ntaad /2. h4 ` Date of signature: /�_ 2004-3363 SO0025 (O : So �5 l� al o�( Facility Inmate Services Agreement This Facility Inmate Services Agreement(this"Agreement')is by and between the County of Weld,Coloraoo,by and through its Board of County Commissioners on behalf of the Weld County North Jail Complex("Customer")located at 2110 O Street,Greeley, CO 80631 and Evercom Systems,Inc.("Evercom")located at 8201 Tristar Drive,Irving,Texas 75063. The parties agree that this Agreement shall govern the relationship between the parties at all of Customer's current and future facilities(collectively,the"Facility"). "Commencement Date"means(check one blank): "Commissions"means collectively: [] Date the Equipment is installed and ready in first Facility "Collect Call Commission Percentage": (See Exhibit D) [] Last date this Agreement is signed by a party "Prepaid Card Discount": (See Exhibit D) [X] Specific date: 1/1/2005 "Debit Account Commission Percentage": (See Exhibit D) • Deleted:3"Initial Term"means the period beginning on the Commencement Date and ending on the date that is i yeagthereafter. —11 -0 1. Term. This Agreement shall be effective on the recognized by Evercom(the"Payment Date"). All Commission ] Deleted:s Commencement Date(defined above)and shall remain in effect payments shall be final and binding upon Customer unless during the Initial Term. Thereafter, unless one party delivers to Evercom receives written objection within 60 days after the the other written notice of non-renewal at least 90 days prior to Payment Date.Customer shall notify Evercom in writing at least the end of then current term,this Agreement shall automatically 60 days prior to a Payment Date of any change in Customer's I renew for no more than 2 successive periods equal to the length remittance address. of the Initial Term (the "Renewal Terms"). The Initial Term together with the Renewal Terms shall be collectively referred to 5. Maintenance and Repair. During the Term,Evercom shall as the"Term." If,because of strikes,riots,wars,or for any other repair and maintain the Evercom hardware and software reason,business operations at a Facility are interrupted,then the delivered and installed at the Facility(the"Equipment")in good Term shall be extended for a period of time equal to the period of operating condition(ordinary wear and tear excepted),including, such business interruption. without limitation, furnishing all parts and labor. All such maintenance shall be conducted in accordance with the service I 2. Exclusive Right. During the Term,jp consideration for the level commitments in Exhibit B. All such maintenance shall be . { Deleted:I Commissions (defined above)and for the services provided by provided at Evercom's sole cost and expense unless ---Evercom as described in Exhibit A (the "Services"), Customer necessitated by any misuse of, or destruction, damage, or grants to Evercom the exclusive right and license to install, vandalism to,the Equipment by Customer(not inmates at the maintain, and derive revenue from the Evercom inmate Facility), in which case, Evercom may recoup the cost of such telecommunications system, as well as the related hardware, repair and maintenance through either a Commission deduction software and services provided by Evercom, including, without or direct invoicing, at Evercom's option. Customer must limitation, inmate telephone services (whether local or long promptly notify Evercom in writing after discovering any misuse distance collect,coin,prepaid,or debit calls). With regard to the of, or destruction, damage, or vandalism to the Equipment. Services, Evercom shall install the equipment and other items Customer shall permit Evercom's employees and contractors listed on Exhibit A at the Facility. access to the Facility for the purpose of installing, operating, 3. Compensation. In consideration for the exclusive right repairing, and maintaining the Equipment. If any Equipment is interfaced with other devices or software owned or used by granted to Evercom pursuant to this Agreement: Customer or a third party,then Evercom shall have no obligation a. Collect Calls. Evercom shall pay Customer the to repair or maintain such other devices or software. applicable Collect Call Commission Percentage of the Gross Revenue earned by Evercom through the completion of collect 6. Liability Insurance. Evercom shall maintain comprehensive calls("Collect Calls")placed from the Facility. general liability insurance having limits of not less than b. Inmate Prepaid Calling Cards. Upon written request $1,000,000.00 in the aggregate naming Customer as an by Customer,Evercom shall provide inmate prepaid calling cards "Additional Named Insured" on the policy. Customer shall for resale to inmates by Customer. Customer shall pay Evercom provide Evercom with reasonable and timely written notice of any for the minutes designated on the prepaid cards at the Rates, claim, demand, or cause of action made or brought against less the Prepaid Card Discount. If Evercom has not received Customer arising out of or related to the utilization of the Customer's payment for the prepaid calling cards within 90 days Equipment or related services. Evercom shall have the right to after Customer's receipt of the cards,then Evercom reserves the defend any such claim, demand, or cause of action at its sole right to deduct the cost of the cards from the Commissions until cost and expense and within its sole and exclusive discretion. paid in full. Customer shall not compromise or settle any claim or cause of c. Debit Account Calls. Evercom shall pay Customer the action arising out of or related to the utilization of the Equipment applicable Debit Account Commission Percentage of the Gross or related services without the prior written consent of Evercom. Revenue earned by Evercom through the completion of calls Customer agrees to use good faith efforts to assist Evercom with placed from the Facility that are paid from designated prepaid its defense of any such claim,demand,or cause of action. Evercom debit accounts,the records of which are stored in the 7. Indemnity. EVERCOM SHALL DEFEND,INDEMNIFY AND Equipment("Debit Account Calls"). HOLD CUSTOMER, AND ITS AFFILIATES, AGENTS, d. Gross Revenue. "Gross Revenue"means all charges (excluding taxes, if any) billed by Evercom relating to either EMPLOYEES, OFFICERS, DIRECTORS,AND SUCCESSORS Collect Calls or Debit Account Calls. HARMLESS FROM ANY LOSS,COST,EXPENSES,DAMAGE, e Rates. Evercom shall charge telephone rates (the OR LIABILITY RESULTING FROM ANY THIRD PARTY "Rates")that are shown in the attached Exhibit E. plrewad by ACTION BROUGHT OR THREATENED AGAINST CUSTOMER r --- , tadfL�tapplicable,The Rates may be amended from time to time BASED-ON ANY(0-NEGLIGENTFAILURE 13Y EVERCOM TO I Formatted:Strikethrough - by the parties or in accordance with Section 12(b). PERFORM A MATERIAL OBLIGATION UNDER THIS f. Additional Services Evercom shall have the right to AGREEMENT OR (II) ALLEGATION THAT THE SERVICES offer additional services and equipment features to County. The INFRINGE A PATENT, COPYRIGHT, TRADEMARK, OR ANY terms and conditions(including,without limitation,the cost)for OTHER PROPRIETARY RIGHTS OF A THIRD PARTY, such additional services and equipment features shall be PROVIDED THAT CUSTOMER PROVIDES EVERCOM WITH memorialized by a written addendum signed by both parties. PROMPT WRITTEN NOTICE OF THE SAME. IN THE EVENT ANY SUCH INFRINGEMENT CLAIM IS MADE OR 4. Payment of Commissions. Evercom shall remit the THREATENED AGAINST CUSTOMER, OR INJUNCTIVE Commissions to Customer on or before the 30th day after the RELIEF IS GRANTED TO A CLAIMANT,EVERCOM SHALL(a) end of the reporting month in which the revenues were OBTAIN THE RIGHT FOR CUSTOMER TO CONTINUE USE Facility Inmate Services Agreement-Page 1 of 8 ©Evercom Systems,Inc.-Proprietary&Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 2004-3353 OF THE SERVICES;OR(b)SUBSTITUTE OTHER SERVICES EVERCOM IS NOT RESPONSIBLE FOR ANY OF LIKE CAPABILITY; OR (c) REPLACE OR MODIFY THE MANUFACJURER'S WARRANTIES. _----{Formatted:Strikethrough SERVICES TO RENDER THEM NON-INFRINGING WHILE 11. Notices. Any notice or demand made by either party under RETAINING LIKE CAPABILITY. IF EVERCOM IS UNABLE TO the terms of this Agreement under thte shall n in r PERFORM ANY OF THE ACTIONS IN CLAUSE(a),(b),or(c) gany ABOVE. THEN CUSTOMER MAY TERMINATE THIS writing and shall be given or made by mail, postage prepaid, AGREEMENT UPON 30 DAYS PRIOR WRITTEN NOTICE TO addressed to the respective party as set forth in the introductory Deleted: EVERCOM WITHOUT INCURRING ANY TERMINATION Para9raPhtoftms Agreert2nt,-onto srrdrolfam-addressasa party"' PENALTIES. INDEMNIFICATION BY EVERCOM PURSUANT may designate by written notice in compliance with this Section. TO THIS SECTION SHALL BE CUSTOMER'S SOLE REMEDY 12. Miscellaneous. AGAINST EVERCOM FOR ANY DAMAGES ARISING OUT OF a. This Agreement shall be governed by and construed in OR RELATED TO THIRD PARTY CLAIMS. THE INDEMNITIES accordance with the laws of the State of Texas. HEREIN SHALL SURVIVE THE EXPIRATION OR OTHER b. Notwithstanding anything to the contrary in this TERMINATION OF THIS AGREEMENT. Agreement,€vercem the parties.by written amendment,may,in 8. Default and Termination. If either party defaults in the y` `eye tomtit-FL changethe Rates or other terms set forth performance of any obligation under this Agreement, then the herein µ. - - err A if Eve—ere deer such non-defaulting party shall give the defaulting party written notice change is deemed necessary to comply with applicable law or of its default setting forth with specificity the nature of the default. regulation_ If the defaulting party fails to cure its default within 30 days after receipt of the notice of default,then the non-defaulting party shall c. No waiver by ether party of any event of default under have the right to immediately terminate this Agreement and this Agreement shall operate as a waiver of any subsequent pursue all other remedies available to the non-defaulting party, default under the terms of this Agreement. either at law or in equity. d. If any provision of this Agreement is held to be invalid or unenforceable, the validity or enforceability of the other 9. Force Maieure. Either party may be excused from provisions shall remain unaffected. performance under this Agreement to the extent that e. This Agreement shall be binding upon and inure to the performance is prevented by any act of God, war, civil benefit of Evercom and Customer and their respective disturbance, supply or market, failure of a third party's successors and assigns. performance, failure, fluctuation or non-availability of electrical f. Customer acknowledges that the Equipment shall at power, heat light, air conditioning or telecommunications all times remains the sole and exclusive property of Evercom equipment, other equipment failure or similar event beyond its and that any software provided by Evercom in conjunction with reasonable control; provided, however that the affected party the Equipment and the Services is subject to the terms and shall use reasonable efforts to remove such causes of non- conditions of the Master Proprietary Software Agreement performance. If any law or regulation prevents Evercom from attached as Exhibit C. providing services hereunder or if such law or regulation makes g. If Evercom, in its sole discretion,determines that the continuation of this Agreement impractical for economic reasons revenue generated by the Facility is insufficient to justify or otherwise,then Evercom,at its sole discretion,may terminate continued service or that the Equipment requirements of the this Agreement without liability to Customer or any third party. Facility were not contemplated under this Agreement,Evercom shall have the right to terminate or renegotiate this Agreement 10. I imitation of I lability and Disclaimer of Warranties. upon 30 days'prior written notice to Customer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN h. All information, software, THIS AGREEMENT, EVERCOM SHALL HAVE NO LIABILITYequipment and related FOR INDIRECT, INCIDENTAL, SPECIAL, OR services provided by Evercom hereunder and Confidential CONSEQUENTIAL DAMAGES. LOSS OF PROFITS OR Information")Evercom. shall all times remain proprietary confidential INCOME. LOST OR CORRUPTED DATA, OR LOSS OF USE In Customer shall not disclose such Confidential Information to any third party without Evercom's prior written OR OTHER BENEFITS ARISING OUT OF OR IN ANY WAY consent. RELATED TO ANY PRODUCT OR SERVICE PROVIDED PURSUANT TO THIS AGREEMENT. ANY LIABILITY OF i. This Agreement constitutes the entire agreement of EVERCOM UNDER THIS AGREEMENT SHALL BE LIMITED the parties and supersedes h any prior or cante be odous oral or TO THE AMOUNT PAID TO CUSTOMER DURING THE written only agreements. This Agreement cannot be modified n orally TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE and can only bh modified atr by a written instrument red by all d CLAIM ARISES. EXCEPT AS SET FORTH ON EXHIBIT B. parties. Each signatory to this Agreement warrants and EVERCOM'S OBLIGATIONS UNDER THIS AGREEMENT ARE represents that he or she has the unrestricted right and requisite r IN LIEU OF ALL WARRANTIES. EXPRESS OR IMPLIED. authority t enter rt and execute oho Agreement,theto bind his d EVERCOM MAKES NO WARRANTIES, INCLUDING, her respective party, and to authorize the installation bed WITHOUT LIMITATION. ANY WARRANTY OF of the Equipment. This Agreement may be executed an MERCHANTABILITY AND WARRANTY OF FITNESS FOR A in l.counterparts, each of which shall be fully etef niee an PARTICULAR PURPOSE, OR WARRANTY OF NON- same in t and all n of which together shall constitute one and the INFRINGEMENT WITH REGARD TO ANY PRODUCT OR same instrument. SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. EXECUTED as of the Commencement Date. Evercom Systems,Inc. Wald Cat ort, al 1$ e By: }" Name: Title•: �°.-- v, %1 .S t Date: � �{ ( �• tlbfl fi EST: ��nry r 1861 t O jv� LD COUNTY CLERK TOT BOARD Formatted:Strikethrough Formatted:Strikethrough On -- - - - Formatted:Strikethrough ) @1l , � D -UTY CLE K_ 0 THE BO {Formatted:Stnkethrough is-�! -ment-Page 2 of 8 m Evercom Systems.Inc.-Proprie orm 3.1.04(gross)-Bid 20040831003A-BIDS 3.5 57004'—.33ros Exhibit A: Services and Equipment Centennial Work Release Facility 1. Aoolications. The parties agree that the Services checked below shall be provided at the costs below in accordance with and subject to the terms and conditions of the Master Proprietary Software Agreement attached to the Agreement as Exhibit C.UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING IN THIS AGREEMENT,NO SERVICES OTHER THAN THE SERVICES LISTED BELOW WILL BE PROVIDED;NO ORAL AGREEMENTS OR STATEMENTS ARE BINDING: Call Manager No Charge Com Plus No Charge Connections Plus No Charge Covert Investigator No Charge Easy Connect No Charge REV-UP Prepaid Calling Cards No Charge Secure Booking No Charge 2. Equipment. In connection with providing the Services,Evercom shall be obligated to provide only the following hardware and software. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING IN THIS AGREEMENT, NO EQUIPMENT OTHER THAN THE EQUIPMENT LISTED BELOW WILL BE PROVIDED;NO ORAL AGREEMENTS OR STATEMENTS ARE BINDING: NETWORK PRODUCTS Telephone and Other Equipment 3-PHONE,PBG#5010,MINI BLUE 4-PAYPHONE,ASTRL 2 COIN PHN 1-SWITCH PANEL 12 COUNT 3. Installation Specifications. Voice Prompt: You are receiving a collect call from Centennial Work Release Facility Languages: English,Spanish Traffic: Dedicated #of Collect Phones: 3 #of Coin Phones: 4 #of Inmate Phones: 3 Cord Length: 32in. Demark Point: DEMARK POINT Equipment Location: PHONE ROOM Connection to LAN/WAN IRemote Access Capabilities 4. Installation Dates. Subject to Section]of the Agreement,the following is the schedule of installation and turn-up of the Equipment: Installation Date: 12/31/2004(Required) 5. Special Requirements. Pre-Bid Conference: 8/31/2004 IInsurance: $500,000.00 ICommission Reports Facility Inmate Services Agreement-Page 3 of 8 ©Evercom Systems,Inc.-Proprietary&Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 Weld County North Jail Complex 1. Applications. The parties agree that the Services checked below shall be provided at the costs below in accordance with and subject to the terms and conditions of the Master Proprietary Software Agreement attached to the Agreement as Exhibit C.UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING IN THIS AGREEMENT,NO SERVICES OTHER THAN THE SERVICES LISTED BELOW WILL BE PROVIDED;NO ORAL AGREEMENTS OR STATEMENTS ARE BINDING: Call Manager No Charge Corn Plus No Charge Connections Plus No Charge Covert Investigator No Charge Easy Connect No Charge REV-UP Prepaid Calling Cards No Charge Secure Booking No Charge 2. Equipment. In connection with providing the Services,Evercom shall be obligated to provide only the following hardware and software. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING IN THIS AGREEMENT, NO EQUIPMENT OTHER THAN THE EQUIPMENT LISTED BELOW WILL BE PROVIDED;NO ORAL AGREEMENTS OR STATEMENTS ARE BINDING: NETWORK PRODUCTS Printer Red Robin 4$A Telephone and Other Equipment 38-PHONE,PBG#5010,MINI BLUE 4-PAYPHONE,ASTRL 2 COIN PHN 2-SWITCH PANEL 25 COUNT 4-Backboard 178A 3. Installation Specifications. Voice Prompt: You are receiving a collect call from Weld County North Jail Complex Languages: English,Spanish Traffic: Dedicated #of Collect Phones: 38 #of Coin Phones: 4 #of Inmate Phones: 38 Cord Length: 32in. Demark Point: DEMARK POINT Equipment Location: PHONE ROOM Connection to LAN/WAN Remote Access Capabilities 4. Installation Dates. Subject to Section 7 of the Agreement,the following is the schedule of installation and turn-up of the Equipment: Installation Date: 12/31/2004(Required) 5. Special Requirements. Pre-Bid Conference: 8/31/2004 Insurance: $500,000.00 I Commission Reports Facility Inmate Services Agreement-Page 4 of 8 ©Evercom Systems,Inc.-Proprietary 8 Confidential-Form 3.1 04(gross)-Bid:20040831003A-BIDS 3.5 Exhibit B: Service Level Commitments 1. Outage Report;Technical Support. If either of the following occurs:(a)Customer experiences an Equipment outage or malfunction or (b)the Equipment requires maintenance(each a"System Event"),then Customer shall promptly report the System Event to Evercom's Technical Support Department('Technical Support"). Customer may contact Technical Support 24 hours a day,seven days a week(except in the 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.Evercom shall provide Customer commercially reasonable notice,when practical,prior to any Technical Support outage. For Customer's calls to Technical Support,the average monthly call answer time will be 120 seconds or less, provided however,that Evercom shall endeavor(but shall not be obligated)to achieve an average monthly call answer time of 30 seconds. 2. Priority Classifications. Upon receipt of Customer's report of a System Event,Technical Support shall classify the System Event as one of the following four priority levels: a. "Priority 1"means that 60%or more of the functionality of the Equipment is adversely affected by the System Event. b. "Priority 2"means that 30%-59%of the functionality of the Equipment is adversely affected by the System Event. c. "Priority 3"means that 5%-29%of the functionality of the Equipment is adversely affected by the System Event. d. "Priority 4"means that less than 5%of the functionality of the Equipment is adversely affected by the System Event. 3. Response Times. After receipt notice of the System Event, Evercom shall respond to the System Event within the following time periods with a 95%or greater rate of accuracy: a. Priority 1: 4 hours; b. Priority 2: 12 hours; c. Priority 3: 24 hours;and d. Priority 4: 36 hours. 4. Response Process. In all instances,Technical Support shall either initiate remote diagnosis and correction of the System Event or dispatch a field technician to the Facility(in which case the applicable regional dispatcher shall contact Customer with the technician's estimated time of arrival),as necessary. 5. Performance of Service. All repair and maintenance of the Equipment performed by Evercom shall be done in a good and workmanlike manner at no cost to Customer except as may be otherwise set forth in the Agreement. Any requested modification or upgrade to the Equipment that is agreed upon by Customer and Evercom may be subject to a charge as set forth in the Agreement and shall be implemented within the time period agreed by the parties. 6. Escalation Contacts. Customer's account will be monitored by the applicable Territory Manager and Regional Service Manager. In addition, Customer may use the following escalation list if Evercom's response time exceeds 36 hours: first to the Technical Support Manager or Regional Service Manager,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 Evercom's management team will contact Customer to confirm resolution. For a Priority 2 or 3 System Event, a member of Evercom's customer satisfaction team will confirm resolution. 8. Monitodnq. Evercom shall monitor its back office and validation systems 24 hours a day,seven days a week. 9. End-User Billing Services and Customer Care. Evercom's Correctional Billing Services division shall maintain dedicated customer service representatives to handle end-user issues such as call blocking or unblocking and setting up end-user payment accounts. The customer service representatives shall 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 800-578-2627. In addition, Evercom shall maintain an automated inquiry system on its toll-free customer service phone line that shall be available to end-users 24 hours a day,7 days a week to provide basic information and handle most routine activities. Evercom shall also accept payments from end-users by credit card,check,and cash deposit(such as by money order or Western Union transfer). 10. Reasonable Accommodation. If Evercom fails to meet the service commitments in this Exhibit A and such failure materially adversely impacts Customer,then Evercom shall promptly make a reasonable accommodation. To be eligible for the accommodation,Customer must submit written notice to Evercom within 10 days after Evercom's failure to meet a service requirement. Notwithstanding anything set forth in the Agreement to the contrary,this Section 11 sets forth Customer's sole remedy and Evercom's sole liability for Evercom's failure to meet a service commitment. Weld County North Jail Complex Initials: Facility Inmate Services Agreement-Page 5 of 8 O Evercom Systems,Inc.-Proprietary 8 Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 Exhibit C: Master Proprietary Software Agreement This Master Proprietary Software License Agreement(this"License Agreement")is attached to,and made a part of,that certain Facility Inmate Services Agreement. This License Agreement shall apply to any and all Software provided by Evercom to Customer (including,without limitation,Software provided pursuant to the Agreement). The terms and conditions of the Agreement are incorporated in this License Agreement by reference except to the extent expressly contradicted by this License Agreement. Any capitalized term used herein,but not defined,shall have the meaning set forth in the Agreement. 1. Grant. Subject to the terms and conditions of this License related to the license granted in this License Agreement or to Agreement,Evercom hereby grants to Customer,and Customer Customer's use of the Software, regardless of when such tax • hereby accepts, a personal, non-exclusive, non-transferable liability is asserted. license (without the right to sublicense) to access and use certain proprietary computer software products and materials 6. Updates. All Updates to the Software provided by Evercom specified in Exhibit A to the Agreement(the"Software")and to will be subject to the terms and conditions of this License use any related user manuals, documentation, and any other Agreement and will be billed on a time and materials basis at supporting materials provided by Evercom, as such may be Evercom's then-current billing rates (unless otherwise agreed modified from time to time in Evercom's sole discretion (the upon by the parties in writing). Evercom shall support all "Documentation").Customer may reproduce the Documentation, previous versions of the Software for six months (the"Support provided that Customer shall ensure that all relevant trademark Period") after Evercom has made an upgraded version of the and copyright information is maintained with the copied Software commercially available. If Customer fails to upgrade its Documentation. Software during the Support Period, Evercom shall have no obligation to support the previous versions of Software after the 2. Term. The term of this License Agreement shall begin on Support Period and shall not be liable for any errors,omissions the License Date and shall be coterminous with the Agreement. or other damages that occur as a result of Customer's use of 3. Restrictions on Use. Customer shall use the Software such previous versions. solely for Customer's intemal business purposes in connection 7. Intellectual Property. with the Facility. Customer shall not (i) permit any parent, a. Customer acknowledges and agrees that Evercom(or subsidiary,affiliated entity,or third party to use the Software,(ii) its licensors, if any)have and will retain all right,title, interest, assign, sublicense, lease, encumber, or otherwise transfer or and ownership in and to(i)the Software and any copies,custom attempt to transfer the Software or any portion thereof, (iii) versions, modifications, or updates of the Software, (ii) all process or permit to be processed any data of any other party Documentation, and (iii) any trade secrets, know-how, with the Software, (iv) alter, maintain, enhance, disassemble, methodologies,and processes related to Evercom's products or decompile,reverse engineer or otherwise modify the Software or services(the"Licensor Materials"). Customer acknowledges that allow any third party to do so,or(v)ship,transfer,or export the the Licensor Materials constitute proprietary information and Software into any county, or use the Software in any manner trade secrets of Evercom and its licensors,whether or not any prohibited by the export laws of the United States. portion thereof is or may be the subject of a valid copyright or patent. Customer shall have no right, title or interest in such 4. Third Party Information. Customer acknowledges that through use of the Software Customer will be able to access proprietary rights confidential information of third parties that is protected by its Evercom may(g place proprietary notices dthereto)of Evercomthe certain federal and state privacy laws("Third Party Information"). ic rs Materials,aers d(ii hypertextor links update etsu on the Licensor and nt)change stmer such or notices from Customer agrees that due to the vulnerability essi of computer et time to o. In no event may m Customer remove or alter any systems and software oo employ access via the essr tht, Evercom proprietary notice from the Licensor Materials. Customer and its authorized employees will only access the Software with computer systems that have effective frewall and 8. Termination. Upon termination of this License Agreement, anti-virus protection. During the term of this License Agreement, Customer shall:(i)discontinue all use of the Software;(ii)deliver Customer shall: (i) adopt and enforce such internal policies, to Evercom all physical copies of the Software,if any,(iii)destroy procedures and monitoring mechanisms as are necessary to the Software and all copies of the Software contained in any ensure that the Software is used only in accordance with the computer memory or data storage apparatus under the control of terms of this License Agreement, (ii)take all steps reasonably Customer,and(iv)certify to Evercom within one week after the necessary to ensure that no person or entity will have termination of this License Agreement that Customer has unauthorized access to the Software,and (iii)treat Third Party complied with the provisions of this Section. Information in accordance with all applicable federal and state 9. Warranty and Disclaimer of Warranties.laws. To the extent allowed by applicable law, Customer shallr2 es. indemnify,defend,and hold harmless Evercom and its affiliates a. Evercom warrants that the Software will perform against all costs (including, without limitation, attorneys' fees) substantially as specified in the applicable user product manual, arising out of or related to Customer's breach of the terms of this if any(as it may be updated from time to time in connection with Section, including, without limitation, Customer's failure to updates provided by Evercom),provided,however,that Evercom maintain the confidentiality of all Third Party Information in shall not be liable under this warranty if the Software has been accordance with applicable federal and state laws. modified or altered by anyone other than Evercom, if the Notwithstanding any cure period for default in the Agreement,if Software has been abused or misapplied, or if Customer has Customer breaches its obligations in the sections entitled failed to incorporate all updates provided to Customer by "Restrictions on Use" and "Third Party Information," then Evercom. In the event of a breach of this warranty, Customer Evercom shall have the right to terminate this License may return the defective Software to Evercom,and Evercom,at Agreement immediately. Evercom's option,will either:(i)refund any fee paid to Evercom by Customer for the specific piece of defective Software or(ii) 5. Fees. All fees related to Software receipts, updates, and correct or replace the Software without charge. Such refund, modifications thereto shall be set forth in Exhibit A to the correction, or replacement is Customer's sole and exclusive Agreement. Customer shall pay all such fees in accordance with remedy for breach of this warranty. Evercom does not represent the terms set forth in the Agreement. In addition,Customer shall or warrant that the Software will meet Customer's requirements pay all sales, use, and other taxes (excluding taxes on or that its operation will be uninterrupted or error-free. Evercom's income)imposed by any jurisdiction arising out of or Facility Inmate Services Agreement-Page 6 of 8 Evercom Systems,Inc.-Proprietary&Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 b. EXCEPT AS EXPRESSLY SET FORTH IN THIS confidentiality agreement with terms at least as restrictive as SECTION,EVERCOM DOES NOT MAKE ANY WARRANTIES, those set forth herein. The Recipient will be responsible for any EXPRESS OR IMPLIED,CONCERNING THE SOFTWARE OR breach of any provision of this Agreement by the Recipient's THE APPLICATION, OPERATION, OR USE THEREOF, THE affiliates, partners, directors, officers, employees, agents, and DATA GENERATED BY THE OPERATION OR USE THEREOF, advisors and those of the Recipient's affiliates. Confidential OR ANY SUPPORT OR MAINTENANCE SERVICES Information will be maintained in confidence indefinitely. Each RENDERED WITH RESPECT THERETO. EVERCOM HEREBY party shall immediately notify the other in writing of any known or EXCLUDES ALL IMPLIED WARRANTIES TO THE EXTENT perceived misappropriation of the Confidential Information, PERMITTED BY LAW, INCLUDING, SPECIFICALLY, (I) ANY whether such misappropriation is a result of a negligent or an IMPLIED WARRANTY ARISING BY STATUTE OR intentional act of the Recipient or a third party. For purposes of OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR this License Agreement,"Confidential Information"means(i)all USAGE OF TRADE. (II) THE WARRANTIES OF ideas, concepts, techniques or know-how tending to give the MERCHANTABILITY AND FITNESS FOR A PARTICULAR Disclosing Party a commercial advantage (including, without PURPOSE,AND(III)NONINFRINGEMENT. limitation, any patentable inventions and original works of 10. Limitation of Remedies. Customer assumes the entire authorship, such as computer software, customer lists. risk related0. o the use mof the i Custom In no event shall e specifications, business plans,trade secrets, and the like)and (ii)any other information labeled"CONFIDENTIAL"and provided Evercom's liability in connection with the Software or this License to the Recipient by the Disclosing Party. Notwithstanding the Agreement exceed the fee paid to Evercom by Customer for the foregoing,Evercom shall have the right to implement,use,and Software. In addition to the limitations of Evercom's liability set license any and all improvements or enhancements to its forth in the Agreement, neither Evercom nor its licensors shall Software developed in the course of performance of this License have any obligation to Customer, or otherwise be liable to Agreement. Customer, for any third party claim based on: (i) Customer's operation of Software,(ii)Customer's combination of any of the 12. Injunctive Relief. Customer recognizes that Evercom will Software with other products not furnished by Evercom,or(iii) be irreparably harmed in the event of Customer's breach or Customer's use of a superseded or altered version of the threatened breach of the sections entitled"Restrictions on Use," Software. THE REMEDIES DESCRIBED IN SECTION 7 OF "Third Party Information," "Intellectual Property," and THE AGREEMENT STATE THE EXCLUSIVE LIABILITY OF "Confidentiality," and that, notwithstanding anything contained EVERCOM AND THE EXCLUSIVE REMEDY OF CUSTOMER herein to the contrary,Evercom shall be entitled,as a matter of WITH RESPECT TO ANY CLAIM, INCLUDING, WITHOUT right,to injunctive relief,both temporary and permanent,without LIMITATION, CLAIMS OF PATENT,COPYRIGHT, OR TRADE the necessity of providing actual damages or posting bond or SECRET INFRINGEMENT. CUSTOMER SHALL MAKE NO other security. If Evercom is required to post bond or other CLAIM AGAINST ANY OF EVERCOM'S LICENSORS ON security,the parties hereby stipulate that$1,000 is sufficient for ACCOUNT THEREOF. such bond or other security. The right to injunctive relief shall be cumulative with any other remedies available to Evercom and 11. Confidentiality.This Section supplements the confidentiality includes, without limitation, the right to pursue a temporary obligations in the Agreement. The parties acknowledge that restraining order, whether ex parte or not. Customer shall each party hereto, its employees, agents, affiliates, or reimburse Evercom for all fees,costs,and expenses(including, subcontractors(collectively,the"Recipient")may be exposed to without limitation,attomeys'fees)incurred by Evercom in taking certain Confidential Information of the other party (the such court action to obtain equitable relief. "Disclosing Party"). Any Confidential Information of the Disclosing Party disclosed pursuant to this License Agreement 13. Independent Contractors. Nothing in this License may be used only for the purpose related to this License Agreement shall be deemed or construed by the parties or any Agreement. The Recipient (i)will hold the Disclosing Party's other entity to create an agency, partnership. or joint venture Confidential Information in strict confidence;(ii)will not disclose between Customer and Evercom. the Confidential Information to any third party without the written consent of the Disclosing Party and will take all reasonable steps 14. Miscellaneous. This License Agreement,together with all to prevent such disclosure (which steps will include, without schedules and exhibits attached hereto, constitutes the entire limitation,at least the same degree of care, but not less than a agreement between the parties hereto with respect to the subject reasonable degree of care, and security precautions that the matter hereof and supersedes all prior agreements and Recipient uses to protect its own confidential information); and understandings,oral or written,between the parties with respect (iii)will only use or disclose such Confidential Information within to the subject matter hereof. No amendment of this License the Recipient's own organization on a need-to-know basis. Agreement shall be effective without the written consent of both Moreover, the Recipient agrees to transmit Confidential parties. Customer represents and warrants that Customer has Information only to the Recipient's partners, directors, officers, the power and authority to enter into and perform its obligations employees, agents. advisors, and affiliates or those of the under this License Agreement.The parties'obligations under the Recipient's affiliates only on a need-to-know basis and who are sections entitled"Restrictions on Use.""Third Party Information," informed by the Recipient of the confidential nature of the "Intellectual Property," "Termination," "Limitation of Remedies," Confidential Information and who agree to be bound by a "Confidentiality," "Injunctive Relief," and this Section 14, shall survive the termination of this License Agreement. Weld County North Jet Complex Initials: Facility Inmate Services Agreement-Page 7 of 8 ©Evercom Systems,Inc.-Proprietary&Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 Exhibit D: Commissions Centennial Work Release Facility "Collect Call Commission Percentage": 52% 'Prepaid Card Discount": 30% "Debit Account Commission Percentage": 52% Weld County North Jail Complex "Collect Call Commission Percentage": 52% "Prepaid Card Discount": 30% "Debit Account Commission Percentage": 52% Facility Inmate Services Agreement-Page 8 of 8 Evercom Systems,Inc.-Proprietary 8 Confidential-Form 3.1.04(gross)-Bid:20040831003A-BIDS 3.5 Hello