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HomeMy WebLinkAboutAgreements/Contracts - Sheriff & JailK20-049 Ih o m ewav r �3 .Ilion. ImP"ct. Master License and Services Agreement This i� �M��a�ster License and Services Agreement (the "Agreement"), made and entered into as of this _ day of 1/�2020 (the "Effective Date"), by and between Grant County (WA) Sheriffs Office (the "County") and HomeWAV, LLC, a Delaware limited liability company ("HomeWAV). Each of the County and HomeWAV may be referred to herein as a "Party" and collectively, the "Parties." RECITALS Whereas, HomeWAV is a provider of a unique, custom all -in -one inmate communications solution comprised of patented technology, video software, hosted services, and equipment that has been adapted for use in secured detention facilities as more particularly described herein (collectively, the "System"); and Whereas, the County desires that HomeWAV provide the System to one or more of its secured detention facilities (each a "Facility' and collectively, the "Facilities"), and HomeWAV desires to provide the System identified herein to the County pursuant to the terms and conditions set forth herein. Now, therefore, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the Parties agree as follows: 1. Definitions. a. "Equipment" means the specific HomePAST" Kiosks, PoE Adaptor Sets, routers, switches and other such hardware and equipment as set forth on Exhibit A which is provided to the County as part of the System licensed to it under this Agreement. b. "Licensed Services" means that portion of the System comprised of the Software and cloud -based applications that are run on a hosted system and which are provided by HomeWAV to the County pursuant to the license terms herein to enable inmate voice calls, video calls, and messaging services at each Facility. c. "Professional Services" means the installation, setup, configuration, and testing of the Equipment and the System, and training provided by HomeWAV to the County as more particularly described herein. d. "Software" means the proprietary and patented software program owned by HomeWAV and licensed to the County pursuant to the terms of this Agreement. 2. Exclusivity. The County acknowledges and agrees that this is an exclusive services agreement between the Parties; and accordingly the County agrees that for as long as this Agreement remains in full force and effect HomeWAV will be its sole and exclusive provider of inmate voice calls, video calls, and messaging services for all of its Facilities. For purposes of clarity, this exclusive arrangement means, and the County agrees that the County is expressly prohibited from engaging using, licensing, purchasing, or accepting from any third party, employee, contractor, or related entity any software, equipment or services that are similar to some or any part of the System (including the Licensed Services) or the Professional Services for use at any of its Facilities. 3. Term of this Agreement. This Agreement is effective as of the Effective Date and continues in full force and effect until expiration of a Term or earlier termination. The System will be made fully available to the County for its use and the County's license to the System pursuant to Section 7 will commence ninety (90) days after the Effective Date (the "Commencement Date") and HomeWAV will provide the System and related Professional Services an Licensed Services to the County for a period of five (5) years from the Commencement Date (the "Initial Term") unless earlier terminated pursuant to Section 14. This Agreement will automatically renew for additional one (1) year periods (each a "Renewal Term") unless either Party notifies the other Party of its desire not to renew this Agreement at least 90 days prior to the commencement of the next Renewal Term. The Initial Term and each Renewal Term are collectively, the "Term." I homewav, 4. Professional Services (No Charge). HomeWAV will provide the following Professional Services to the County at no charge during the Term: • arrange for the delivery of the Equipment to the County's Facilities included under this Agreement, • load the Software onto the Equipment, • coordinate the installation of the Equipment in designated wall mount locations within the Facilities, • provide system testing and acceptance on all kiosks, • provide staff and inmate training on platform features and functionality, • arrange for high speed Internet service at minimum of 0.5MB up/0.5MB down per kiosk, and any equipment associated therewith to service the System, and • arrange for cat 5e or greater cable to be installed (if necessary) to each location within the Facility where Equipment is to be installed. 5. Support and Maintenance (No Charge). For the entire Term of this Agreement, and at no charge to the County, HomeWAV will support and maintain the Equipment located at each Facility pursuant to HomeWAV's Software and Hardware Service Level Agreement attached hereto as Exhibit C (the "Service Agreement"). Under no circumstances may the County or any third party acting on behalf of the County install, uninstall, or perform any maintenance or related services on the Equipment, it being understood and agreed that only an approved HomeWAV technician may provide Professional Services, support and maintenance on the Equipment. 6. Ownership of Equipment and Software. HomeWAV is the sole and exclusive owner of the Software and Equipment and retains all right, title and interest in and to the Software and Equipment at all times during the Term. The Software and Equipment are provided to the County pursuant to the System license granted in Section 7 below. HomeWAV will purchase and maintain insurance coverage for the Equipment and the Software comprising the System. HomeWAV will deliver the Equipment to the County's designated Facilities pursuant to a mutually agreed schedule and will install and configure the Equipment with the Software pursuant to the Professional Services set forth above. 7. License to System. HomeWAV hereby grants to the County a limited, non -assignable, non-sublicenseable, revocable, and nonexclusive license during the Term to use the Software, Equipment, and related components comprising the System solely for the limited purposes of providing voice calls and Internet video calls to inmates in each Facility and viewing or monitoring the records of such calls. In addition, if the County exercises its right to receive "Add On Features" as set forth in Exhibit B attached hereto, HomeWAV will provide the County with reasonable assistance to enable the County to receive and use such Add On Features with the System and will seek authorization from any third party providers if necessary. The County will not, and will not permit any other person to, remove, alter, disfigure or cover up any numbering, lettering, insignia or any owner's tag(s) displayed upon the Equipment, and the County may not move the Equipment from the Facility or the location in the Facility where it is installed by HomeWAV. Any of the foregoing actions are deemed a material breach of this Agreement The County's license to and use of the Software is governed by the terms of this Agreement, the Software End User License Agreement provided with the Software (a copy of which is located at https://app.homeway.com/account/terms), and the Website Terms of Use and Privacy Policy located at https://www.homeway.com/privacy policy/, as such items may be updated, amended and modified in accordance with their respective terms (collectively, the "Software I homewav, Terms and Conditions"). The County may not copy or modify the Software, or any adaptation, transcription or merged portion thereof, unless expressly authorized in writing by HomeWAV. Any modifications, improvements, enhancements, changes, or any other alterations to the Software, or any derivative works made therefrom (collectively, "Modifications") that are made by the County or any third party acting on the County's behalf, whether or not authorized by HomeWAV, are deemed the sole and exclusive property of HomeWAV. Accordingly, the County hereby assigns to HomeWAV all of its right, title and interest in and to such Modifications and shall take all necessary actions to ensure that any third party who has participated in the development of any Modifications likewise assigns all of their right, title and interest in the Modifications to HomeWAV. For the avoidance of doubt, the foregoing licenses to the Software, Equipment and any related System components shall terminate immediately upon the termination or expiration of this Agreement. 8. The County's Covenants and Obligations. The County hereby covenants and agrees to the following terms as material conditions to its right to use the System: a. It will not sell, sublicense, or assign the Equipment, the Software, or any other components of the System. b. It will keep the Equipment free and clear of all liens and encumbrances. c. It will only use the Equipment, Software, and other components of the System for (i) the limited purposes provided under the license in Section 7 and (ii) if requested by and, as applicable, purchased by the County, any Add On Features in all cases pursuant to the terms and conditions of this Agreement and the Software Terms and Conditions. d. It will use the System solely at the Facilities and locations within the Facilities where installed by HomeWAV e. It will use its best efforts to ensure that none of the Equipment or Software is damaged by misuse or neglect, including, without limitation, by misuse by the inmates. f. It will work with HomeWAV to ensure that all individuals to whom it grants access to and use the System will agree to the Software Terms and Conditions, and further acknowledges and agrees that it will be fully liable to HomeWAV for breach by any such individuals of the Software Terms and Conditions. g. It acknowledges and agrees that HomeWAV will be the sole and exclusive provider of inmate voice calls, video calls, and messaging services and all related Professional Services to all of the County s Facilities. h. It will not move the Equipment without the advance written consent of HomeWAV. I. It will not remove, alter, disfigure, or cover up any numbering, lettering, insignia, or any owner's tag(s) displayed upon the Equipment. j. It will provide a data file from the Jail Management Software, via secure FTP or web services integration, at a minimum of every fifteen (15) minutes. Any initial synchronization cost will be paid by HomeWAV. 9. Access to the Facility. The County will grant HomeWAV and its employees and subcontractors reasonable and necessary access to the Facilities in order to enable HomeWAV to perform its obligations and exercise its rights hereunder. HomeWAV shall have the right, upon reasonable notice, to enter into each Facility to inspect the System. I homewav, 10. System Usage Fee. The Facility's inmates shall be charged the following fees for using the System, or such other prices as may be agreed to by the County and HomeWAV (such amounts, the "Usage Fees"). Usage Fee shall be defined as the cost per minute for voice calls, video calls, and the cost per message for messaging. System Usage Fees Domestic Voice Calls $0.20 per minute International Voice Calls $0.20 + International Rate per minute Onsite Video Calls Free Remote (Offsite) Video Calls $0.25 per minute Video Message $0.50 per message Revenues from using the System shall be deposited into a dedicated account established and maintained by HomeWAV and HomeWAV is authorized to disburse such funds in accordance with Section 11. HomeWAV reserves the right to change the Usage Fees, upon 30 days' written notice to the County if such changes arising from any one or combination of the following: (a) inflation, (b) a change in taxes, or any (c) rule, regulation, or other action by any government or regulatory entity resulting in increased costs to HomeWAV. 11. Revenue Sharing. HomeWAV shall pay to the County a Minimum Monthly Guarantee ("MMG") of $7,000 per month or 40% of Adjusted Gross Revenue ("AGR"), whichever is greater, from the usage of the System installed in the Facility. AGR shall be defined as Gross Revenue of the Usage Fees less internet fees, international calling fees, Federal, State, Local taxes, and recovery charges. For information on recovery charges and how they are applied, please refer to https://www.homewav.com/understandingtaxes/. In the event the average inmate population falls below 140 for a given month, the County's revenue share shall automatically default to 40% until the average inmate population meets or exceeds 140. The MMG will take effect in the proceeding calendar month after the County's prior service provider's system has been deactivated. HomeWAV shall pay to the County, on a monthly basis, its share of the revenues not later than the 10th day of following month. 12. Call Recording. The County hereby agrees that HomeWAV shall have no obligation to verify the users of the System and that the County is strictly liable to HomeWAV for any use of the Software by any of its users that violates the Software Terms and Conditions. HomeWAV will endeavor to make certain recordings available to the County on demand for a period of not less than 90 days after the date of such recording and, with advanced written notice, for a period of one year from the date this Agreement expires or is terminated. The County agrees that HomeWAV has no liability to the County or any third party for any failure to record, store, transmit, relay, review, or monitor any call. 13. Financial Reporting Requirements. HomeWAV shall maintain an accounting program that accurately reflects the revenues generated by the System in the Facilities and provide that information to the County monthly during the term of this Agreement. HomeWAV shall retain its share of the revenues as payment for its obligations hereunder, and shall remit the County's share of revenues, along with such monthly financial reports, to the County. HomeWAV shall issue call data, revenue, and expense information by the 10th day of each month with respect to call activity that occurred in the Facilities during the preceding month. HomeWAV shall maintain all books, documents, accounting records and other evidence pertaining to the services and payments under this Agreement and make such materials available for inspection at all reasonable times during the term of this Agreement, and for three (3) years after the date of the final payment under the Agreement. 14. Termination. a. Rights of Termination. The County may terminate this Agreement if HomeWAV breaches any of its obligations under this Agreement and such breach remains uncured thirty (30) days after notice thereof, `I homewav- provided, that if the County breaches the scope of the license to any part of the System as set forth in Section 7, HomeWAV may terminate this Agreement immediately upon giving written notice to the County. Effects of and Actions upon Termination or Expiration. Upon termination or expiration of this Agreement, irrespective of the cause, the licenses granted by HomeWAV to the County shall terminate. The County shall take the following actions: (i) immediately cease and cause all of its users to immediately cease all access to and use of the System; (ii) return the Equipment to HomeWAV in good, working condition no later than (30) days following the termination or expiration date; and (iii) to the extent any Software is then being run on any of its systems, remove all Software applications. In the event that any returned Equipment is not in good, working condition or any Equipment is not returned pursuant to this Section, the County will be liable for the replacement cost of such Equipment, and will remit payment in full upon demand by HomeWAV. c. Survival. Sections 10, 12, 14-17, 20-22, 24, and 25-27 shall survive termination of this Agreement 15. Agreement Documents. The attached Exhibit A, describing the Equipment and attached Exhibit 8 describing the Add On Features, Exhibit C setting forth the terms of the Service Agreement, and the Software Terms and Conditions are each made part of this Agreement and are each incorporated herein by this reference. This Agreement represents the entire agreement and understanding between HomeWAV and the County with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral, that the Parties hereto may have had with respect thereto. No statements, representations, promises or inducements with respect to the subject matter by either Party or by any agent or representative of either Party which is not contained in this Agreement shall be valid or binding between the Parties. 16. Force Majeure. To the extent allowable by law, any delays or failures by either Party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such Party's control (a "Force Majeure"), including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, failure of the Internet, or any part or element thereof and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such Party. 17. Governing Law. This Agreement shall be governed by the laws of the State of Washington, both as to interpretation and performance. 18. Independent Contractor. Each party acknowledges and agrees that HomeWAV and its employees (and any subcontractors it engages) serve as independent contractors and that the County shall not be in any manner responsible for any payment, insurance, or incurred liability. Nothing in this Agreement will create an employer- employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the Parties, their agents, employees or affiliates. 19. Subcontractors. HomeWAV shall have the right, in its sole and absolute discretion, to use subcontractors to perform its obligations and exercise its rights hereunder. HomeWAV shall be responsible for all acts and omissions of its subcontractors as if such acts or omissions were performed by HomeWAV. 20. Notices. All notices under this Agreement must be in writing and given to the other Parry at the address or email below. Delivery is deemed to occur: (a) on the third (3`d) business day after bring mailed first class, prepaid, (b) upon delivery from a nationally recognized overnight courier service, (c) upon delivery if hand delivered, and (d) upon receipt of an automated verification of receipt if sent by email. Either Party may change its ,�homewavr, address and/or addressee for notices at any time with fifteen (15) days' prior notice to the other Party in accordance with the foregoing. HomeWAV: HomeWAV, LLC 2020 Westport Center Dr. St. Louis, MO 63146 j.best@homeway.com County: Grant County (WA) Sheriff's Office 35 C Street NW Ephrata, WA 98823 21. Nondiscrimination and Non -Conflict Statements. HomeWAV agrees that no person on the grounds of handicap, age, race, color, religion, sex or national origin, shall be excluded from participation in, or be denied benefits of, or be otherwise subjected to discrimination in the performance of this Agreement, or in the employment practices of HomeWAV. HomeWAV shall upon request show proof of such non-discrimination and shall post in conspicuous places available to all employees and applicants notices of nondiscrimination. 22. Warranties and Disclaimers. a. Services Warranty. HomeWAV warrants that it will perform the Professional Services, support and maintenance in a good and workmanlike manner using trained professionals, and that it will use commercially reasonable efforts to meet the performance terms in the Service Agreement. b. Disclaimers. EXCEPT AS PROVIDED HEREIN, THE SYSTEM AND ALL RELATED SERVICES IN THIS AGREEMENT ARE DELIVERED AND PROVIDED "AS IS" AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 23. Compliance with all Federal, State, and Municipal Laws. HomeWAV will comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations in any manner affecting the provision of inmate communication, and shall ensure that its third party subcontractors, if any, obtain any necessary permits prior to installation of the Equipment in the Facilities. 24. Assignment. Neither Party may assign this Agreement or any or all of its rights or obligations hereunder without the prior written consent of the other Party; provided, however, that HomeWAV may assign this Agreement to any of its subsidiaries or affiliates or to any entity that acquires all or substantially all of HomeWAV's assets and agrees to assume responsibility hereunder. None of the provisions of this Agreement shall be construed to be for the benefit of or enforceable by any person or entity other than the Parties hereto and their successors and assigns. 25. Severability. If any provision of this Agreement is declared illegal, void, or unenforceable the remaining provisions shall not be affected but shall remain in force and in effect. 26. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original hereof and all of which, when taken together, will be deemed to constitute one and the same agreement. Signatures transmitted by facsimile or other electronic means will be deemed originals. 6 I homewav- 27. Authorization; Third Party Beneficiaries. Each person signing below warrants and represents that he/she has full power and authority to execute this Agreement on behalf of the Party he/she represents. There are no third -party beneficiaries to this Agreement. (signature page follows) J6 homewav- In witness whereof, the Parties hereto have caused this Agreement to be executed on the day and year first above written, to be effective as of the Effective Date. ATTEST: 1 � Barb Vasquez, Cl�rk of e Board HomeWAV, LLC By: Name: John Best Title: CEO/President BOARD OF COUNTY COMMISSIONERS /GRANT COUNTY, WASHINGTON Cindy Carter? Chair Richard Stevens, Member tj homewav In witness whereof, the Parties hereto have caused this Agreement to be executed on the day and year first above written, to be effective as of the Effective Date. ATTEST: Barb Vasquez, Clerk of the Board HomeWAV, LLC By. Nam : John Best Title: CEO/President BOARD OF COUNTY COMMISSIONERS Richard Stevens, Member EXHIBIT A The Equipment • Thirty-two (32) HomePASTm Kiosks • One (1) Router/firewall • Two (2) 24 -port PoE Switches °J6 homewav- I homewav" EXHIBIT B Add On Features • Inmate e-mail and messaging (optional -no cost to the facility) • Inmate paperless forms/documents (optional -no cost) • Law Library integration with your current or future provider (optional) • The Argus Investigative Platform • Professional video visits and phone calls, including no cost for public attorneys 10 tlir homewavi, Exhibit C HomeWAV's Software and Hardware Service Level Agreement Support and Maintenance • Support and maintenance will be provided by phone support, remote access or testing, and on-site support. Phone support is available (24) hours a day, (7) days a week, and (365) days a year. Remote access or testing and on-site support are available between 8:00 a.m. and 6:00 p.m. on business days. To the extent that any service window described herein is not practicable given the security protocols at the applicable facility, the parties will work together to address the problem in a timely manner. • Maintenance/repair calls from the facility will be resolved in the manner outlined in this section (subject to the limitations set forth above): o "Major Emergency" shall be defined as an occurrence of any one of the following conditions: • A failure of the system processor, its common equipment or power supplies which render the system incapable of performing its normal functions; • A failure of the recording function or any of its components that affect the full recording operation; • A failure of any of the kiosks functions that result in the ability of inmates to place visitation sessions without the use of assigned PINS; or • A failure of the system "kill switches" or similar disabling function. For a "Major Emergency", HomeWAV will attempt to respond to the service problem within thirty (30) minutes of the initial trouble report by the facility through the use of remote testing or access. if the system is not accessible for remote access, HomeWAV will have a qualified technician on-site at the facility within two (2) hours from the time of initial trouble report. o "Routine Service" shall be defined as a system failure or problem other than a "Major Emergency" item as listed above. For a "Routine Service" HomeWAV will attempt to respond to the service problem within four (4) hours of the initial trouble report using remote testing or access or, if the Routine Service is an issue/defect, the issue/defect will be resolved using the Service Ticket Process described below. If needed, HomeWAV will send a qualified technician on site at the facility within 24 hours of notification, excluding evenings, weekends, and holidays. Service Ticket Process • For issues or defects such as common "bugs" or similar problems, a service ticket is created for the issue/defect and sent to HomeWAV's product development team. • HomeWAV s product development team will take the issue/defect and have it documented for analysis. • Once analyzed, a scale is used to prioritize the service ticket and a number is placed on the issue/defect. A combination of importance, cost effectiveness, and resolution time will determine the number. • This service ticket is then placed on the revolving "to do" list for our programmers who deploy the fixes, based on priority. Request for Product Enhancement (Uparadel Process • The staff fills out a work order request for an upgrade. • The work order request is analyzed by the product development team to determine whether it is a necessary universal upgrade to the system or specific to the County. • If it is determined to be a necessary universal upgrade, it will be sent through the service ticket process and developed at no charge to the County. If it is determined to be specific to the County, a quote will be presented to the county for approval. i J6 homewav- • If the work order request is approved by the County, the work order request will be sent to the service ticket process. • HomeWAV retains the right to invoice any amounts due to the County that were incurred in connection with upgrades requested by the County. HomeWAV reserves the right to amend this Agreement at any time upon reasonable notice to the County and mutual written agreement between the County and HomeWAV. 12