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Home My WebLink About20210529.tiffRESOLUTION RE: APPROVE SOFTWARE LICENSE AND SERVICES AGREEMENT FOR LIFESPOT MOBILE DEVICE APP AND AUTHORIZE CHAIR TO SIGN - PREPARE PROTECT DEFEND, LLC 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 Software License and Services Agreement for the LifeSpot Mobile Device App between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Sheriff's Office, and Prepare Protect Defend, LLC, commencing upon full execution of signatures, 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 Software License and Services Agreement for the LifeSpot Mobile Device App between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Sheriff's Office, and Prepare Protect Defend, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 24th day of February, A.D., 2021. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST:diJ ..k11,4;€.k. .� Steve ' eno, Chair Weld County Clerk to the Board BY.,1(2.0-4---a • ty Clerk to the Board APPROVED A Coun y Attorney Lori S Date of signature: 03l oa(91 cc: `3©C 5K/AC) 3/lo/al 2021-0529 SO0042 Don -I -etc+ =O 1* `'I `'i 98' BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: LIFESPOT APP DEPARTMENT: Sheriff's Office PERSON REQUESTING: Captain Alan Caldwell DATE: 02/11/21 Brief description of the problem/issue: LifeSpot is a smartphone app owned by Prepare Protect Defend LLC. The app is available to schools, businesses, and other entities through a subscription. The app allows victims to alert first responders when an active shooter incident is occurring. There are several advantages to using the app including simultaneous notification of first responders and dispatch, ability for first responders to communicate directly with victims on site, ability for victims to identify the location of suspects and injured victims, map of the incident location and improved incident management and coordination for first responders. When the subscription is active, a GEOFENCE is placed over the subscriber's buildings, and alerts are disseminated to first responders within a certain radius of the incident. Union Colony Schools utilize the service. There is no charge to first responder agencies. First responder agencies are able to use the app for free. WCSO and Weld County IT recently met with the company representatives and determined the app can be utilized in the iPhones issued to deputies. Although the app is free to first responder agencies, a software user agreement is required for WCSO deputies to receive the notifications. The County Attorney's Office reviewed the software user agreement (copy attached). What options exist for the Board? (include consequences, impacts, costs, etc. of options): Approve the software user agreement. This would allow WCSO deputies to receive notification of active shooter incidents. Decline to sign the software agreement. WCSO would not receive LifeSpot notifications of active shooter incidents. Recommendation: WCSO recommends signing the software agreement. Approve Recommendation Work Session Other/Comments: Schedule Perry L. Buck Mike Freeman Scott K. James, Pro-Tem Steve Moreno, Chair Lori Saine 2021-0529 50009 03/0 1, SOFTWARE LICENSE AND D SERVICES AGREEMENT THIS SOFTWARE LICENSE AND SERVICES AGREh;MENT ( "Agreement") is made and entered into as of the date of last signature by a Party hereto (the "Effective Date"), by and between a d of County Commissioners on behalf of the Veld County Sheriff's Office located 1950 ® Street, Greeley, CO 80631 ("First Responder") and Prepare Protect Defend LLC, a Colorado limited liability company ("Provider"). First Responder and Provider are each referred to individually as a "Party" and collectively as the "Parties" to this Agreement. WHEREAS, First Responder wishes to procure from Provider the software and services described herein, and Provider wishes to provide such software and services to First Responder, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Definitions. Capitalized terms used in this Agreement shall have the meanings set forth, or referred to, in this Section. 1.1. "App" has the meaning set forth in Section 3.1 (Mobile Devices). 1.2. "Authorized Users" means those employees of First Responder that are authorized by First Responder to use the LifeSpot Technology. 1.3. "Authorized User PH" has the meaning set forth in Section 5.1 (Security Measures). 1.4. "Confidential Information" means the terms of this Agreement and any non-public information or data relating to Provider's business, whether disclosed orally or in written, electronic or other form or media and whether or not marked as "confidential" or with a similar legend, including: the LifeSpot Materials; information regarding Provider's research and development, new product plans, marketing and business plans and strategies, product pricing information, financial information, projections, budgets, operations and methods; and, information regarding Provider's employees, customers and suppliers. Notwithstanding the foregoing, the term "Confidential Information" does not include information that (a) is or becomes part of the public domain other than through the acts or omissions of First Responder or any of its employees or agents; (b) is received by First Responder on a non -confidential basis from a third party that is lawfully in possession of such information and not in violation of any contractual or legal obligation to Provider with respect to such information; or (c) First Responder demonstrates by written or other documentary records was independently developed by First Responder without access to any of Provider's Confidential Information. 1.5. "Control" means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership or control of voting equity interests, by contract or otherwise. 1.6. "Data License" has the meaning set forth in Section 6.2 (Personal Information). 1.7. "Data Protection Laws" means all federal or state Laws relating in any way to the privacy, confidentiality, integrity and/or security of Personal Information, including: laws imposing disclosure requirements and restrictions regarding the Processing of Personal Information; security breach notification laws; laws imposing minimum data security requirements; and laws requiring the secure disposal of records containing certain Personal Information. 1.8. "Data Subject" means the natural person to which the applicable Personal Information relates. 1.9. "De -Identified Data" means anonymized information that cannot reasonably identify or be linked, directly or directly, to a particular Data Subject. 1.10. "Documentation" means any end user documentation for the LifeSpot Technology that Provider provides to First Responder. 1.11. "Feedback" has the meaning set forth in Section 11.2 (Feedback). 1.12. "Force Majeure Event" means any act or condition whatsoever beyond the reasonable control of the affected Party, including fire, flood, explosion, war, terrorism, riot or other civil unrest, earthquake, acts of God, strikes, labor stoppages or slowdowns or other industrial disturbances, denial of service attacks and other malicious acts by third parties, passage of Law or any action taken by a governmental or public authority, Internet disturbances, or national or regional shortage of adequate power. 1.13. "IP Rights" means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets and know how, and (e) all other intellectual property rights; in each case, whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world. 1.14. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. 1.15. "LifeSpot App" means Provider's mobile application intended for use by private citizens during active shooter and active threat situations, including any content contained therein. 1.16. "LifeSpot Commander App" means the object code of Provider's application, in either mobile application or desktop application form, intended for use by law enforcement in connection with responding to active shooter and active threat situations experienced by end users of the LifeSpot App, including any content contained in such application and any Updates provided by Provider during the Term. The LifeSpot Commander App has additional features and functionality beyond those of the LifeSpot Responder App, including the ability to see the location of LifeSpot App and LifeSpot Responder end users during an alert. 1.17. "LifeSpot Responder App" means the object code of Provider's mobile application intended for use by law enforcement in connection with responding to active shooter and active threat situations experienced by end users of the LifeSpot App, including any content contained in such application and any Updates provided by Provider during the Term 1.18. "LifeSpot Materials" has the meaning set forth in Section 6.1 (Reservation of Rights). 1.19. "LifeSpot Service" means the hosted service that enables communication between end users of the LifeSpot App and First Responder. 1.20. "LifeSpot Technology" means, collectively, the LifeSpot Responder App, the LifeSpot Commander App and the LifeSpot Service. 1.21. "Malicious Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other 2 malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system, or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby. 1.22. "Mobile Device Requirements" has the meaning set forth in Section 3.1 (Mobile Devices). 1.23. "Person" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. 1.24. "Personal Information" means any information or data that identifies an individual or from which an individual may be identified, including, without limitation, an individual's name, address, telephone number, driver's license number, passport number, user name and password, e-mail address, location data or financial account numbers. Further, "Personal Information" includes any other non-public personal information that constitutes "Personal Information," "Personal Data," "Personally Identifiable Information" or any similar term under applicable Data Protection Laws. 1.25. "Process" (including all corollary terms) means to take any action or perform any operation or set of operations that the LifeSpot Service is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase, or destroy. 1.26. "Representatives" means, with respect to Party, such Party's employees, agents, subcontractors and legal and financial advisors. 1.27. "Security Breach" has the meaning set forth in Section 5.2 (Notice of Data Breach). 1.28. "Service Data" means all data, information, and statistics (including usage data) collected, Processed, transmitted, maintained, possessed or generated by the LifeSpot Technology, including the results of any data analysis relating to any of the foregoing. "Service Data" includes De -Identified Data but excludes Authorized User PII. 1.29. "System Requirements" has the meaning set forth in Section 3.1 (System Requirements). 1.30. "Term" has the meaning set forth in Section 9.1 (Tenn). 1.31. "Updates" means a new release of the LifeSpot Responder App or the LifeSpot Commander App, as applicable that Provider makes generally available, at no additional charge, to its licensees who are emergency responders. Updates typically contain bug fixes, patches and/or minor enhancements. The term "Updates" does not include any release of the LifeSpot Responder App or the LifeSpot Commander App for which Provider charges a license fee. 2. LifeSpot Technology. 2.1. License Grant. Subject to the terms and conditions of this Agreement, Provider grants to First Responder a non-exclusive, non -transferable, non- sublicensable, royalty -free license during the Term to use, solely within the United States: (a) the LifeSpot Responder App and the LifeSpot Commander App in connection with responding to active shooter and active threat situations experienced by end users of the LifeSpot App while located in First Responder's jurisdiction; and (b) the Documentation in connection with First Responder's use of the LifeSpot Responder App and the LifeSpot Commander App. 2.2. LifeSpot Service. Subject to the terms and conditions of this Agreement, during the Term, Provider grants to First Responder a non-exclusive, non -transferable right to access and use, solely within the United States, the LifeSpot Service in connection with active shooter and active threat incidents experienced by end users of the LifeSpot App while located in First Responder's jurisdiction, or within any jurisdiction that the First Responder is authorized to act according to mutual aid or similar agreement. 2.3. Authorized User. First Responder acknowledges that Provider must issue an activation code per Authorized User in order for the Authorized Users to be able to use the LifeSpot Responder App or the LifeSpot Commander App. First Responder agrees to provide all information requested by Provider in order to issue such activation codes. First Responder is responsible for causing its Authorized Users to comply with the obligations of First Responder with respect to the LifeSpot Technology. In the event that an Authorized User's employment with First Responder is terminated, irrespective of the reason for such termination, First Responder shall notify Provider of such termination within one business day thereof so that Provider may disable such person's access credentials for the LifeSpot Technology. 2.4. Updates of LifeSpot Responder and Commander Apps. Provider will make Updates available to First Responder during the Term, if and when generally released to Provider's licensees who are emergency responders. First Responder 3 acknowledges and agrees that Provider has no obligation to develop Updates. 2.5. Limitations and Restrictions. First Responder shall not: (a) copy, modify, or create derivative works or improvements of any of the LifeSpot Technology; (b) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, or transfer any LifeSpot Technology to any Person, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) otherwise make available any LifeSpot Technology to any Person, except as permitted herein with respect to the Authorized Users; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any of the LifeSpot Technology, in whole or in part; (e) bypass or breach any security device or protection used by any of the LifeSpot Technology; (f) input, upload, transmit, store or otherwise provide to or through the LifeSpot Service any information or materials that (i) contain or transmit any Malicious Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the IP Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm, in any manner, the LifeSpot Service or Provider's provision of the LifeSpot Service to third parties; (h) remove, delete, alter, or obscure any IP Rights notices from any LifeSpot Technology; (i) access or use any LifeSpot Technology in any manner or for any purpose that violates any applicable Law; (j) access or use any LifeSpot Technology for purposes of competitive analysis of the LifeSpot Technology, the development, provision, or use of a competing service or product, or for any benchmarking purposes; or (k) otherwise access or use the LifeSpot Technology beyond the scope of the limited rights expressly granted under Section 2 (LifeSpot Technology). 2.6. Corrective Action and Notice. If First Responder becomes aware of any actual or threatened activity prohibited by Section 2.5 (Limitations and Restrictions), First Responder shall immediately (a) notify Provider of any such actual or threatened activity, and (b) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects. 3. Additional First Responder Obligations. 3.1. Mobile Devices. Authorized Users must have a mobile device that is compatible with the LifeSpot Responder App or the LifeSpot Commander App (each, an "App"), as applicable. The minimum requirements for such mobile device (e.g. specific operating system software and minimum operating system version) ("Mobile Device Requirements") shall be as communicated by Provider from time to time. As between the Parties, it is First Responder's sole responsibility to ensure that its Authorized Users use the LifeSpot Responder App and/or the LifeSpot Commander App on a properly functioning mobile device that complies with the Mobile Device Requirements for the applicable App. 3.2. Internet Service. As between the Parties, First Responder is responsible for ensuring that its Authorized Users have a high speed wireless Internet connection, in connection with their use of the LifeSpot Technology. First Responder understands and agrees that the LifeSpot Technology will not function if the Authorized Users do not have adequate wireless Internet service for their mobile devices. 4. No Fees. Provider shall provide the LifeSpot Technology to First Responder at no charge during the Term. 5. Data Security. 5.1. Security Measures. In order to protect the Personal Information of Authorized Users received by the LifeSpot Service ("Authorized User PII"), Provider currently has in place, and shall maintain during the Term, a comprehensive written information security program that includes administrative, technical, and physical safeguards and controls designed to: (a) protect against reasonably foreseeable risks to the security, confidentiality and/or integrity of the Authorized User PII; (b) protect against unauthorized access to, or unauthorized disclosure, modification, use or destruction of, the Authorized User PII; and (c) comply with all Data Protection Laws applicable to Provider. 5.2. Notice of Data Breach. Provider shall notify First Responder without undue delay after becoming aware of any unauthorized access to, use or disclosure of Authorized User PII (each, a "Security Breach"). Provider shall cooperate with First Responder in providing information reasonably available to Provider that is needed by First Responder in order to satisfy any duties it may have under applicable Law to report the Security Breach to Data Subjects affected by such Security Breach. Provider may report the Security Breach to legal authorities or other third parties entities to the extent required by applicable Law. 4 5.3. Personal Information of LifeSpot App Users. First Responder acknowledges that the Authorized Users will receive Personal Information of end users the LifeSpot App. First Responder agrees to use, and to ensure that the Authorized Users use, such Personal Information solely for purposes of performing their law enforcement duties and in compliance with all applicable Laws. 6. IP Rights; U.S. Government Rights. 6.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement to First Responder, Provider reserves and retains all right, title, and interest in and to the LifeSpot Technology and Documentation ("LifeSpot Materials"), including all IP Rights therein and thereto. No rights are granted to First Responder with respect to Provider's intellectual property other than as expressly set forth herein. 6.2. Personal Information. First Responder hereby grants to Provider a non-exclusive, worldwide, transferable, sub -licensable (to its subcontractors), royalty -free, fully paid -up license during the Term to Process the Authorized User PII in order to provide First Responder with the LifeSpot Technology and to prevent or address technical problems with the LifeSpot Technology under this Agreement ("Data License"). 6.3. Service Data. As between the Parties, Provider owns all right, title, and interest in and to the Service Data, including all IP Rights therein. For the avoidance of doubt, Provider shall have the right to access, collect, control, maintain, store, process, transmit and commercialize the Service Data in accordance with applicable Law. 6.4. IJ.R. Government Rights. The LifeSpot Materials are "commercial items," as that term is defined in 48 C.F.R. §2.101. Any use, modification, reproduction, release, performance, display, or disclosure of the LifeSpot Materials by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with Provider to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. 7. Confidentiality. 7.1. Confidential Information. First Responder shall: (a) not access or use the Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) Not Applicable. Removed. (c) safeguard the Confidential Information using at least the same degree of care it uses to protect its own similar information and in no event less than a reasonable degree of care; and (d) be responsible for the acts and omissions of its Representatives as if they were First Responder's acts or omissions. 7.2. Compelled Disclosure. Not Applicable. Removed. 7.3. Return of Confidential Information. Upon the termination of this Agreement for any reason, or upon the reasonable request of Provider, First Responder shall promptly return to Provider all Confidential Information, together with any copies that may be authorized herein, or shall promptly destroy such Confidential Information and, upon written request, certify such destruction to Provider. 8. Warranty Disclaimer. 8.1. Warranty by First Responder. First Responder represents, warrants, and covenants to Provider that First Responder has provided all necessary notices to Data Subjects, and has all necessary rights (including all necessary Data Subject consents) in and to the Authorized User PII, so that the exercise by Provider of the rights granted to it under the Data License, and the performance of the Services in compliance with this Agreement, does not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights, of any third party or violate any applicable Law. 8.2. Disclaimer Of Warranties. FIRST RESPONDER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LIFESPOT MATERIALS IS AT FIRST RESPONDER'S SOLE RISK, AND THAT THE LIFESPOT MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND. PROVIDER HEREBY EXPRESSLY DISCLAIMS, FOR ITSELF, ITS SUBCONTRACTORS AND SUPPLIERS, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON -INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE LIFESPOT MATERIALS, OR THE RESULTS OF THE USE THEREOF, WILL MEET FIRST 5 RESPONDER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, SAVE LIVES, BE AVAILABLE OR ACCURATE, OR BE SECURE OR ERROR -FREE OR THAT DEFECTS IN THE LIFESPOT MATERIALS WILL BE CORRECTED. 9. Term and Termination. 9.1. Term. The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with this Agreement ("Term"). 9.2. Service Suspension. (a) Provider may suspend First Responder's and/or any Authorized Users' access to or use of all or any part of the LifeSpot Technology, without notice and without incurring any resulting obligation or liability, if: (i) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (ii) Provider believes, in its good faith and reasonable discretion, that: (1) First Responder or any Authorized User has accessed or used the LifeSpot Technology beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (2) First Responder or an Authorized User has breached the provisions of Section 2.5 (Limitations and Restrictions); (3) First Responder or an Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the LifeSpot Technology; or (4) this Agreement is terminated. This Section 9.2 does not limit any of Provider's other rights or remedies, whether at law, in equity or under this Agreement. If Provider suspends the LifeSpot Technology, Provider will promptly restore First Responder's (or the applicable Authorized User's) access to and use of such LifeSpot Technology after the event giving rise to the suspension has been resolved to Provider's reasonable satisfaction. 9.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Provider may terminate this Agreement, effective upon written notice to First Responder, if First Responder breaches any of its obligations under Section 2.5 (Limitations and Restrictions); and (b) either Party may terminate this Agreement: (i) effective upon written notice to the other Party, if the other Party breaches this Agreement (except as set forth in Section 9.3(a) (Termination)), and such breach (1) is incapable of cure, or (2) being capable of cure, remains uncured 30 days after the non -breaching Party provides the breaching Party with written notice of such breach; or (ii) for convenience upon at least 30 days advance written notice to the other Party. 9.4. Effect of Termination. Upon termination of this Agreement for any reason: (a) all rights and licenses granted to First Responder hereunder will immediately terminate and First Responder shall immediately (and shall cause the Authorized Users to) cease using the LifeSpot Materials; (b) Provider may disable all First Responder's and its Authorized Users' access to the LifeSpot Materials; (c) Provider will promptly delete all Authorized User PII that is stored in the LifeSpot Service; and (d) the Parties shall promptly comply with Section 7.3 (Return of Confidential Information). The termination of this Agreement will not prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party's acts or omissions prior to the effective date of such termination. 9.5. Survival. Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive the termination of this Agreement, including the provisions of the following Sections: 1 (Definitions); 5.3 (Personal Information of LifeSpot App Users); 6.1 (Reservation of Rights); 6.3 (Service Data); 6.4 (US Government Rights); 7 (Confidentiality); 8.2 (Disclaimer of Warranties); 9.4 (Effect of Termination); 9.5 Survival; 10 (Limitations of Liability); and 11 (Miscellaneous) excluding 11.1 (Force Majeure). 10. Limitations of Liability. 10.1. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PROVIDER (NOR PROVIDER'S SUBCONTRACTORS OR SUPPLIERS) SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY LOST REVENUE, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND/OR SERVICES, OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. FURTHER, FIRST RESPONDER AGREES THAT PROVIDER HAS NO LIABILITY IF THE LIFESPOT TECHNOLOGY DOES NOT FUNCTION DURING AN ACTIVE SHOOTER OR ACTIVE THREAT INCIDENT OR FOR ANY LOSS OF LIFE OR BODILY INJURY THAT RESULTS FROM AN ACTIVE SHOOTER OR ACTIVE THREAT INCIDENT. 10.2. Cap on Monetary Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO TWENTY-FIVE THOUSAND DOLLARS ($25,000.00). 10.3. General. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 10.1 AND 10.2, SHALL (A) APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR ANY OTHER LEGAL THEORY, AND (B) BE INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR LIMITED REMEDY STATED HEREIN. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT PROVIDER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS SECTION 10, WHICH ALLOCATE THE RISK BETWEEN PROVIDER AND FIRST RESPONDER AND FORM A BASIS OF THE BARGAIN BETWEEN THE PARTIES. 11. Miscellaneous. 11.1. Force Majeure. Provider will not be liable for any delay or failure to perform its obligations hereunder when, and to the extent that, such delay or failure is caused by a Force Majeure Event. 11.2. Feedback. If First Responder provides any suggestions, comments, recommendations for improvement or other feedback with respect to any LifeSpot Materials ("Feedback"), then First Responder grants Provider a perpetual, worldwide, royalty -free, paid -up, irrevocable, non-exclusive, transferable, sub -licensable license to use, reproduce, distribute, publicly perform, publicly display, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise commercially exploit the Feedback as Provider sees fit. 11.3. Audit. During the Term and for one year thereafter, upon at least two weeks prior written notice, Provider (or an independent third party designated by Provider) may perform an audit of First Responder's use of the LifeSpot Technology and all records of First Responder relating to any of First Responder's obligations under this Agreement. Any such audit shall be made at Provider's expense, shall occur during First Responder's normal business hours and shall be made no more than once per calendar 6 year unless a prior audit uncovered a material breach by First Responder of this Agreement. First Responder agrees that it will provide access to First Responder's sites for purposes of, and shall cooperate in, such audit. In the event any such audit discloses any breach of the terms of this Agreement by First Responder or any Authorized User or Representative of First Responder, First Responder shall, in addition to such other rights and remedies as may be available to Provider as a result of such breach, pay to Provider, within 30 days of Provider's provision of the results of such audit to First Responder, Provider's reasonable out-of-pocket costs in connection with such audit. 11.4. Notices. All notices required under this Agreement shall be in writing, in the English language, and must be given via (a) personal delivery, (b) prepaid overnight courier or U.S. mail, with tracking of actual delivery or rejection, or (c) e-mail with request for a delivery receipt. Notices must be sent to the following address(es) for the applicable Party, except that either Party may change its notice information by providing notice to the other in accordance with this Section. Any notice sent by a Party shall be deemed to have been duly given to the other Party when (i) personally delivered, (ii) actually delivered or rejected, when sent by prepaid overnight courier or U.S. mail, with tracking of delivery or rejection, or (iii) if sent by e-mail, upon the sender's receipt of electronic confirmation of delivery of such e-mail. If to First Responder: Weld County Board of County Commissioners on behalf of the Weld County Sheriff's Office Address: 1950 O Street, Greeley, CO 80631 Representative: E-mail: if to Provider: Prepare Protect Defend LLC Representative: Brett Titus Address: P.O. Box 2241, Parker, CO 80134 E-mail: brett@lifespotapp.com and admin(d, li fespotapp. c om 11.5. Assignment. First Responder shall not assign this Agreement, in whole or in part, in each case whether voluntarily, involuntarily, or otherwise without Provider's prior written consent. Any purported assignment in violation of this Section 11.5 is void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and permitted assigns. 11.6. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. 11.7. Governing Law. The interpretation, validity, and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the Laws of the state where First Responder is located (other than such laws, rules, regulations and case law that would result in the application of the Laws of a jurisdiction other than those of the state where First Responder is located). 11.8. Equitable Relief. First Responder acknowledges and agrees that a breach by First Responder of any of its obligations under Section 2.5 (Limitations and Restrictions) or Section 7 (Confidentiality) would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to obtain equitable relief, including an injunction, specific performance, and any other equitable relief that may be available from any court, without any requirement to post a bond or other security or prove actual damages and without prejudice to Provider's right to exercise any other rights and remedies it may have. 11.9. Cumulative Remedies. Except as expressly provided otherwise in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute or otherwise. 11.10. Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity or unenforceability and the remainder of this Agreement shall not be affected thereby, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable Law. 11.11. Entire Agreement; Order of Precedence. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, proposals, agreements, or communications, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between this Agreement and the terms of use for the Apps, (a) the terms set forth in this Agreement shall control with respect to the relationship between Provider and First Responder, and (b) the terms of use for the Apps shall 7 control with respect to the relationship between Provider and an Authorized User. 11.12. Amendment. This Agreement may be modified, supplemented, or changed only in a written document which makes specific reference to this Agreement and which is signed by both Parties. 11.13. Waiver. No delay or omission by either Party to exercise any right or power will impair any such right or power or be construed as a waiver thereof. A waiver by a Party of any of the covenants, conditions, or obligations to be performed by the other Party, or any breach thereof, shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or obligation herein. No waiver of any rights of a Party or obligations of the other Party shall be effective unless consented to in a written document signed by an authorized representative of the Party against which enforcement is sought. 11.14. No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 11.15. Publicity. Neither Party shall issue any press releases or make any public statement(s) (including without limitation in the form of news releases, advertising or solicitation materials, or blog or social media postings) relating to this Agreement or otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other Party. First Responder hereby expressly consents to Provider's inclusion of First Responder's name and logo in Provider's list of partners in promotional and marketing materials, including in press releases and on Provider's website. 11.16. Rules of Construction. For purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise: (a) the terms defined herein include the plural as well as the singular and include any words based upon the root of such defined terms; (b) words importing gender include all genders; (c) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (d) the word "or" is not exclusive; (e) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; and (f) the headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. Unless the context otherwise requires, references herein to: (i) Sections mean the sections of this Agreement; (ii) an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) a statute means such statute as amended from time to time, and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. 11.17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. [SIGNATURE PAGE FOLLOWS] 8 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date indicated below their respective signature blocks. Weld County Board of County Commissioners on behalf of the Weld County Sheriff's Office PREPARE PROTECT DEFEND LLC Signature: ,„.J zfetc_e_ Signature: 314—wl Name: Steve Moreno Name: Brett C. Titus Title: BOCC Chair Title: CEO FED, 2 4 2021 Date: Date: 7 February 2021 _ 9 02002w --.05°27 New Contract Request Entity Inf Entity Name* PREPARE PROTECT DEFEND LLC Entity ID* g,00043422 Contract Name* LIFESPOT APP SOFTWARE AGREEMENT Contract Status CTB REVIEW LI New Entity? Contract ID 4498 Contract Lead* ACALDWELL. Contract Lead Email acaldweIIgco.weId.co.us: skohlgraf4 weldgov.com Parent Contract ID Requires Board Approval YES Department Project # Contract Description* SMARTPHON'E APP ALLOWS VICTIMS TO ALERT FIRST RESPONDERS WHEN AN ACTIVE SHOOTER INCEDENT IS OCCURRING - FREE OF CHARGE FOR WCSO Contract Description 2 Contract Type' AGREEMENT Amount* S0.00 Renewable* YES Automatic Renewal YES Grant ICA Department SHERIFF Department Email CM -Sheriff ahn eldgov.corn Department Head Email CM-Sheriff- DeptHead eldgov.com County Attorney GENERAL COUNTY AA r r ORN'EY EMAIL County Attorney Email CM- COUN'TYATTORNEYr WELDG OV.COM Requested BTCC Agenda Date' 02 24'2021 Due Date 02,20 2021 Will a work session with BOCC be required?* NO Does Contract require Purchasing Dept. to be included? If this is a renewal enter previous Contract ID If this is part of a MSA enter MSA Contract ID Note. the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in OnBase Effective Date Review Date* 10'01'2022 Renewal Date* 12/31=202.2 Termination Notice Period Committed Delivery Date Expiration Date Contact Name. Contact Type Contact Email Purchasing Approver Approval Process Department Hears DONNIE PATCH DH Approved gate 02;' 222: 2021 Final Approval BOCC Approved BOCC SignedDate BOCC Agenda Date 02'24/2021 Originator SKOH'LGRAF Finance Approver CHRIS O`OVIDIO Purchasing Approved Date Finance Approved Date 02/22/2021 Tyler Ref # AG 0.22421 Legal Counsel BOB CHO.ATE Legal Counsel Approved Date 02:22.?202'1 Hello