HomeMy WebLinkAboutContractCAG-18-205
AGREEMENT FOR DIGITAL ONQ AND FILE ONQ INTERFACES
THIS AGREEMENT, dated August 13, 2018, is by and between the City of Renton (the "City" or
"Customer"), a Washington municipal corporation, and FileOnQ, Inc. ("Consultant" or "FileonQ"),
a Washington corporation. The City and the Consultant are referred to collectively in this
Agreement as the "Parties." Once fully executed by the Parties, this Agreement is effective as of
the last date signed by both parties.
1. Scope of Work: Consultant agrees to provide installation of and related services for the
Digital On Q module and the Digital On Q and Evidence On Q interfaces with the Police
Department's records management system (Tyler's New World Systems MSP) as specified
in Exhibit A, Exhibit B, Exhibit C and Exhibit D, which are attached and incorporated herein
and may hereinafter be referred to collectively as the "Work."
2. Chanees in Scope of Work: The City, without invalidating this Agreement, may order
changes to the Work consisting of additions, deletions or modifications. Any such changes
to the Work shall be ordered by the City in writing and the Compensation shall be
equitably adjusted as mutually agreed by the Parties.
3. Time of Performance: All Work shall be performed by no later than December 31, 2018.
4. Compensation:
A. Amount. Total compensation to Consultant for Work provided pursuant to this
Agreement shall not exceed $39,740.00, plus any applicable state and local sales
taxes. Compensation shall be paid based upon Work actually performed according to
the rate(s) or amounts specified in Exhibit A. The Consultant agrees that any hourly or
flat rate charged by it for its Work shall remain locked at the negotiated rate(s) unless
otherwise agreed to in writing. Except as specifically provided herein, the Consultant
shall be solely responsible for payment of any taxes imposed as a result of the
performance and payment of this Agreement.
B. Method of Payment. Upon installation of the DigitalOnQ software, the Consultant
shall submit a voucher or invoice in a form specified by the City for 50 percent of the
projects total cost, including a description of what Work has been performed. The
Consultant shall also submit a final bill upon completion of all Work. Payment shall be
made by the City for Work performed within thirty (30) calendar days after receipt
and approval by the appropriate City representative of the voucher or invoice. If the
Consultant's performance does not meet the requirements of this Agreement, the
Consultant will correct or modify its performance to comply with the Agreement. The
City may withhold payment for work that does not meet the requirements of this
Agreement.
C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by
the City of any remedies it may have against the Consultant for failure of the
Consultant to perform the Work or for any breach of this Agreement by the
Consultant.
D. Non -Appropriation of Funds. If sufficient funds are not appropriated or allocated for
payment under this Agreement for any future fiscal period, the City shall not be
obligated to make payments for Work or amounts incurred after the end of the
current fiscal period, and this Agreement will terminate upon the completion of all
remaining Work for which funds are allocated. No penalty or expense shall accrue to
the City in the event this provision applies.
5. Termination:
A. The City reserves the right to terminate this Agreement at any time, with or without
cause by giving ten (10) calendar days' notice to the Consultant in writing. In the event
of such termination or suspension, all finished or unfinished documents, data, studies,
worksheets, models and reports, or other material prepared by the Consultant
pursuant to this Agreement shall be submitted to the City, if any are required as part
of the Work.
B. In the event this Agreement is terminated by the City, the Consultant shall be entitled
to payment for all hours worked to the effective date of termination, less all payments
previously made. If the Agreement is terminated by the City after partial performance
of Work for which the agreed compensation is a fixed fee, the City shall pay the
Consultant an equitable share of the fixed fee. This provision shall not prevent the
City from seeking any legal remedies it may have for the violation or nonperformance
of any of the provisions of this Agreement and such charges due to the City shall be
deducted from the final payment due the Consultant. No payment shall be made by
the City for any expenses incurred or work done following the effective date of
termination unless authorized in advance in writing by the City.
6. Warranties And Right To Use Work Product: Consultant represents and warrants that
Consultant will perform all Work identified in this Agreement in a professional and
workmanlike manner and in accordance with all reasonable and professional standards
and laws. Compliance with professional standards includes, as applicable, performing the
Work in compliance with applicable City standards or guidelines (e.g. design criteria and
Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall
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certify engineering plans, specifications, plats, and reports, as applicable, pursuant to
RCW 18.43.070. Consultant further represents and warrants that all final work product
created for and delivered to the City pursuant to this Agreement shall be the original work
of the Consultant and free from any intellectual property encumbrance which would
restrict the City from using the work product. Consultant grants to the City a non-
exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and
display all final work product produced pursuant to this Agreement. The City's or other's
adaptation, modification or use of the final work products other than for the purposes of
this Agreement shall be without liability to the Consultant. The provisions of this section
shall survive the expiration or termination of this Agreement.
7. Record Maintenance: The Consultant shall maintain accounts and records, which
properly reflect all direct and indirect costs expended and Work provided in the
performance of this Agreement and retain such records for as long as may be required by
applicable Washington State records retention laws, but in any event no less than six
years after the termination of this Agreement. The Consultant agrees to provide access
to and copies of any records related to this Agreement as required by the City to audit
expenditures and charges and/or to comply with the Washington State Public Records Act
(Chapter 42.56 RCW). The provisions of this section shall survive the expiration or
termination of this Agreement.
B. Public Records Compliance: To the full extent the City determines necessary to comply
with the Washington State Public Records Act, Consultant shall make a due diligent search
of all records in its possession or control relating to this Agreement and the Work,
including, but not limited to, e-mail, correspondence, notes, saved telephone messages,
recordings, photos, or drawings and provide them to the City for production. In the event
Consultant believes said records need to be protected from disclosure, it may, at
Consultant's own expense, seek judicial protection. Consultant shall indemnify, defend,
and hold harmless the City for all costs, including attorneys' fees, attendant to any claim
or litigation related to a Public Records Act request for which Consultant has responsive
records and for which Consultant has withheld records or information contained therein,
or not provided them to the City in a timely manner. Consultant shall produce for
distribution any and all records responsive to the Public Records Act request in a timely
manner, unless those records are protected by court order. The provisions of this section
shall survive the expiration or termination of this Agreement.
9. Independent Contractor Relationship:
A. The Consultant is retained by the City only for the purposes and to the extent set forth
in this Agreement. The nature of the relationship between the Consultant and the City
during the period of the Work shall be that of an independent contractor, not
employee. The Consultant, not the City, shall have the power to control and direct the
details, manner or means of Work. Specifically, but not by means of limitation, the
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Consultant shall have no obligation to work any particular hours or particular
schedule, unless otherwise indicated in the Scope of Work or where scheduling of
attendance or performance is mutually arranged due to the nature of the Work.
Consultant shall retain the right to designate the means of performing the Work
covered by this agreement, and the Consultant shall be entitled to employ other
workers at such compensation and such other conditions as it may deem proper,
provided, however, that any contract so made by the Consultant is to be paid by it
alone, and that employing such workers, it is acting individually and not as an agent
for the City.
B. The City shall not be responsible for withholding or otherwise deducting federal
income tax or Social Security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to Consultant
or any employee of the Consultant.
C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the
Consultant agrees to notify the City and complete any required form if the Consultant
retired under a State of Washington retirement system and agrees to indemnify any
losses the City may sustain through the Consultant's failure to do so.
10. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless
the City, elected officials, employees, officers, representatives, and volunteers from any
and all claims, demands, actions, suits, causes of action, arbitrations, mediations,
proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees,
penalties, expenses, attorney's or attorneys' fees, costs, and/or litigation expenses to or
by any and all persons or entities, arising from, resulting from, or related to the negligent
acts, errors or omissions of the Consultant in its performance of this Agreement or a
breach of this Agreement by Consultant, except for that portion of the claims caused by
the City's sole negligence.
Should a court of competent jurisdiction determine that this agreement is subject to RCW
4.24.115, (Validity of agreement to indemnify against liability for negligence relative to
construction, alteration, improvement, etc., of structure or improvement attached to real
estate...) then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the
Consultant and the City, its officers, officials, employees and volunteers, Consultant's
liability shall be only to the extent of Consultant's negligence.
It is further specifically and expressly understood that the indemnification provided in
this Agreement constitute Consultant's waiver of immunity under the Industrial
Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties
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have mutually negotiated and agreed to this waiver. The provisions of this section shall
survive the expiration or termination of this Agreement.
11. Gifts and Conflicts: The City's Code of Ethics and Washington State law prohibit City
employees from soliciting, accepting, or receiving any gift, gratuity or favor from any
person, firm or corporation involved in a contract or transaction. To ensure compliance
with the City's Code of Ethics and state law, the Consultant shall not give a gift of any kind
to City employees or officials. Consultant also confirms that Consultant does not have a
business interest or a close family relationship with any City officer or employee who was,
is, or will be involved in selecting the Consultant, negotiating or administering this
Agreement, or evaluating the Consultant's performance of the Work.
12. City of Renton Business License: The Consultant shall obtain a City of Renton Business
License prior to performing any Work and maintain the business license in good standing
throughout the term of this agreement with the City.
Information regarding acquiring a city business license can be found at:
http://www.rentonwa.gov/cros/One.aspx?portaIId=7922741&pageId=9824882
Information regarding State business licensing requirements can be found at:
http://dor.wa.gov/doing-business/register-my-business
13. Insurance: Consultant shall secure and maintain:
A. Commercial general liability insurance in the minimum amounts of $1,000,000 for
each occurrence/$2,000,000 aggregate for the Term of this Agreement.
B. In the event that Work delivered pursuant to this Agreement either directly or
indirectly involve or require Professional Services, Professional Liability, Errors and
Omissions coverage shall be provided with minimum limits of $1,000,000 per
occurrence. "Professional Services", for the purpose of this section, shall mean any
Work provided by a licensed professional or Work that requires a professional
standard of care.
C. Workers' compensation coverage, as required by the Industrial Insurance laws of the
State of Washington, shall also be secured.
D. Commercial Automobile Liability for owned, leased, hired or non -owned, leased, hired
or non -owned, with minimum limits of $1,000,000 per occurrence combined single
limit, if there will be any use of Consultant's vehicles on the City's Premises by or on
behalf of the City, beyond normal commutes.
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E. Consultant shall name the City as an Additional Insured on its commercial general
liability policy on a non-contributory primary basis. The City's insurance policies shall
not be a source for payment of any Consultant liability, nor shall the maintenance of
any insurance required by this Agreement be construed to limit the liability of
Consultant to the coverage provided by such insurance or otherwise limit the City's
recourse to any remedy available at law or in equity.
F. Subject to the City's review and acceptance, a certificate of insurance showing the
proper endorsements, shall be delivered to the City before performing the Work.
G. Consultant shall provide the City with written notice of any policy cancellation, within
two (2) business days of their receipt of such notice.
14. Delays: Consultant is not responsible for delays caused by factors beyond the
Consultant's reasonable control. When such delays beyond the Consultant's reasonable
control occur, the City agrees the Consultant is not responsible for damages, nor shall the
Consultant be deemed to be in default of the Agreement.
15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or
encumber any rights, duties or interests accruing from this Agreement without the
written consent of the other.
16. Notices: Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return receipt
requested, by facsimile or by nationally recognized overnight courier service. Time period
for notices shall be deemed to have commenced upon the date of receipt, EXCEPT
facsimile delivery will be deemed to have commenced on the first business day following
transmission. Email and telephone may be used for purposes of administering the
Agreement, but should not be used to give any formal notice required by the Agreement.
CITY OF RENTON
Ed Van Valey
1055 South Grady Way
Renton, WA 98057
Phone: (425) 430-7567
EVanValey@RentonWa.gov
CONSULTANT
Kim Webley
832 Industry Drive
Seattle, WA 98188
Phone: 206-799-0447
Kim@FileOnQ.com
17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational
qualification, the Consultant agrees as follows:
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A. Consultant, and Consultant's agents, employees, representatives, and volunteers
with regard to the Work performed or to be performed under this Agreement, shall
not discriminate on the basis of race, color, sex, religion, nationality, creed, marital
status, sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any
sensory, mental or physical handicap, unless based upon a bona fide occupational
qualification in relationship to hiring and employment, in employment or application
for employment, the administration of the delivery of Work or any other benefits
under this Agreement, or procurement of materials or supplies.
B. The Consultant will take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, creed,
color, national origin, sex, age, sexual orientation, physical, sensory or mental
handicaps, or marital status. Such action shall include, but not be limited to the
following employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation and
selection for training.
C. If the Consultant fails to comply with any of this Agreement's non-discrimination
provisions, the City shall have the right, at its option, to cancel the Agreement in
whole or in part.
D. The Consultant is responsible to be aware of and in compliance with all federal, state
and local laws and regulations that may affect the satisfactory completion of the
project, which includes but is not limited to fair labor laws, worker's compensation,
and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton
Council Resolution Number 4085.
18. Miscellaneous: The parties hereby acknowledge:
A. The City is not responsible to train or provide training for Consultant.
B. Consultant will not be reimbursed for job related expenses except to the extent
specifically agreed within the attached exhibits.
C. Consultant shall furnish all tools and/or materials necessary to perform the Work
except to the extent specifically agreed within the attached exhibits.
D. In the event special training, licensing, or certification is required for Consultant to
provide Work he/she will acquire or maintain such at his/her own expense and, if
Consultant employs, sub -contracts, or otherwise assigns the responsibility to perform
the Work, said employee/sub-contractor/assignee will acquire and or maintain such
training, licensing, or certification.
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E. This is a non-exclusive agreement and Consultant is free to provide his/her Work to
other entities, so long as there is no interruption or interference with the provision of
Work called for in this Agreement.
F. Consultant is responsible for his/her own insurance, including, but not limited to
health insurance.
G. Consultant is responsible for his/her own Worker's Compensation coverage as well as
that for any persons employed by the Consultant.
19. Other Provisions:
A. Approval Authority. Each individual executing this Agreement on behalf of the City
and Consultant represents and warrants that such individuals are duly authorized to
execute and deliver this Agreement on behalf of the City or Consultant.
B. General Administration and Management. The City's project manager is Debbie Scott
(425-430-6939/DScott@RentonWa.gov). In providing Work, Consultant shall
coordinate with the City's project manager or his/her designee.
C. Amendment and Modification. This Agreement may be amended only by an
instrument in writing, duly executed by both Parties.
D. Conflicts. In the event of any inconsistencies between Consultant proposals and this
Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to
this Agreement are incorporated by reference only to the extent of the purpose for
which they are referenced within this Agreement. To the extent a Consultant
prepared exhibit conflicts with the terms in the body of this Agreement or contains
terms that are extraneous to the purpose for which it is referenced, the terms in the
body of this Agreement shall prevail and the extraneous terms shall not be
incorporated herein.
E. Governing law. This Agreement shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington and the City of
Renton. Consultant and all of the Consultant's employees shall perform the Work in
accordance with all applicable federal, state, county and city laws, codes and
ordinances.
F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared
by the joint efforts of the Parties and shall not be construed against one party or the
other as a result of the preparation, substitution, submission or other event of
negotiation, drafting or execution.
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G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or
interpret this Agreement or any of its terms or covenants shall be brought in the King
County Superior Court for the State of Washington at the Maleng Regional Justice
Center in Kent, King County, Washington, or its replacement or successor.
H. Severability. A court of competent jurisdiction's determination that any provision or
part of this Agreement is illegal or unenforceable shall not cancel or invalidate the
remainder of this Agreement, which shall remain in full force and effect.
Sole and Entire Agreement. This Agreement contains the entire agreement of the
Parties and any representations or understandings, whether oral or written, not
incorporated are excluded.
Time is of the Essence. Time is of the essence of this Agreement and each and all of
its provisions in which performance is a factor. Adherence to completion dates set
forth in the description of the Work is essential to the Consultant's performance of
this Agreement.
K. Third -Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than the
Parties, and all duties and responsibilities undertaken pursuant to this Agreement will
be for the sole and exclusive benefit of the Parties and no one else.
Binding Effect. The Parties each bind themselves, their partners, successors, assigns,
and legal representatives to the other party to this Agreement, and to the partners,
successors, assigns, and legal representatives of such other party with respect to all
covenants of the Agreement.
M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party's
failure to enforce any provision of this Agreement shall not be a waiver and shall not
prevent either the City or Consultant from enforcing that provision or any other
provision of this Agreement in the future. Waiver of breach of any provision of this
Agreement shall not be deemed to be a waiver of any prior or subsequent breach
unless it is expressly waived in writing.
N. Counterparts. The Parties may execute this Agreement in any number of
counterparts, each of which shall constitute an original, and all of which will together
constitute this one Agreement.
IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date
last signed by the Parties below.
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CITY OF RENTON
By:
Denis Law
Mayor
Date
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Approved as to Legal Form
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Shane Moloney 1009,
Renton City Attorney
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CUNC1 al TaNT
By
Date
Exhibit A
File
July 26, 2018
Chief Ed Van Valey
Renton Police Department
1055 S. Grady Way
Renton, WA 98057
Dear Chief Van Valey,
EvidenceOnQ
Oft SCM to COA ROM
This letter describes the proposed purchase and installation of the DigitalOnQ digital management
solution as well as the implementation of a two-way integration between the existing EvidenceOnQ
system used by Renton PD with the Records Management System by Tyler Technology. The features,
functionality, and professional services are outlined in the attached proposal from FileOnQ submitted to
the Renton Police Department on July 5, 2018.
The purchase order will reflect the products and services outlined in the proposal in the amount of
$39,740.00. Software and Services include:
➢ DigitalOnQ including:
• DigitalOnQ server license
• No limit on storage size; user defined/hosted storage media
• Included features: Upload, View, Annotate, Classify, Burn to CD/DVD
• Installation
• 2 Days Onsite Training
• 10 concurrent upload seats
• Free Upgrade to DigitalOnQ Version 2
• First 12 months use, maintenance, support & up to 150,000 digital file uploads per year
➢ EvidenceOnQ & Tyler LERMS two-way web services Integration Interface.
➢ DigitalOnQ & Tyler LERMS one-way web services Integration Interface.
Payment terms are as follows:
➢ A 50 percent payment of the total project is due upon installation of the DigitalOnQ software on
Renton's server, provided funds are authorized and made available, but prior to September 28,
2018.
➢ The remaining 50 percent will be due upon completion of the FileOnQ & Tyler LERMS Two way
web services Integration Interface. Note, requested adjustments to the interface and training is
part of the ongoing annual maintenance and support provided with the system.
FileOnQ agrees to complete the installation of DigitalOnQ and the integration of EvidenceOnQ with Tyler
Technology's RMS prior to December 31, 2018.
We look forward to continuing to serve the Renton Police Department.
Sincerely,
Kim Webley
FileOnQ Inc
Acknowledged and received:
Chief Ed Van Valey
Renton Police Department
HeOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 - Phone 800-603-6802
Exhibit B
iletyer IFile(%W
Integrating Evidence
A two-way exchange of information between EvidenceOnQ/DigitalOnQ and New World LERMS
Overview
With an Agency's physical and digital evidence tracked in the EvidenceOnQ and DigitalOnQ products
while Case information is managed in the New World Law Enforcement Records (LERMS) product, there
is a need to exchange information in both directions to simplify the user experience. For example, if
working with EvidenceOnQ or DigitalOnQ, it should be simple for a user to see the related Case number
and associated information. And while working with New World LERMS it should be just as simple to
see the references to property and evidence associated with the Case.
The Tyler-FileOnQ Evidence interface provides this two-way flow of information to:
• Present a complete view of evidence from either product,
• Reduce data entry time,
• Improve records accuracy, and
• Help ensure that people are working with the most up-to-date information
This Interface will provide a web service Intended for EvidenceOnQ and DigitalOnQ to send property
Information to be retained in LERMS. The properties will be associated to a case that will be referenced
by case number in the web service call.
The interface will also use a web service to be provided by FileOnQ to return case speck information to
be retained in the EvidenceOnQ system. The case data will be sent to EvidenceOnQ when changes to a
case with property are detected that require an update to EvidenceOnQ information.
Only Digital Evidence reference information will be sent and not the actual Digital Evidence files
themselves. The Digital Evidence files will continue to be stored and accessible in DigitalOnQa
EvidenceOnQ 0
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PAGE 12 OF 12
Law Enforcement Records
Criminal Case
V
Exhibit C ,�
File
SOFTWARE LICENSE AGREEMENT
Patent Protected, Patents 7,699,942 61 & 8,176,093 B2
www.FileOnQ.com
THIS IS A LEGAL AGREEMENT BETWEEN FILEONQ AND CUSTOMER FOR THE FILEONQ SOFTWARE
PRODUCT TO BE INSTALLED, WHICH INCLUDES COMPUTER SOFTWARE AND RELATED
DOCUMENTATION. BY USING THE SOFTWARE, CUSTOMER ACCEPTS ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MAY,
WITHIN THIRTY (30) DAYS OF PURCHASE, RETURN THE UNUSED SOFTWARE PRODUCT TO THE VENDOR
FROM WHOM IT WAS PURCHASED FOR A REFUND, SUBJECT TO A RESTOCKING FEE.
FileOnQ, Inc., a Washington corporation doing business as FileOnQ ("FileOnQ") whose address is 832 Industry Drive,
Seattle, WA 98188, USA hereby grants to Customer a non-exclusive license (a "License") to use the software
product(s) and the accompanying printed materials and User Manual (the "Documentation") as identified on all
invoice/purchase statements on the terms set forth below.
THIS NON EXCLUSIVE SOFTWARE LICENSE AGREEMENT GRANTS CUSTOMER SPECIFIC RIGHTS TO
INSTALL ALL FILEONQ LICENSE AND DELIVERY ORDERS RELATING TO LICENSED PRODUCTS
SPECIFIED ON ALL INVOICE/PURCHASE STATEMENTS UNDER THE FOLLOWING CONDITIONS.
GRANT OF LICENSE
This License grants Customer the following rights
1.1 Software. Except as set forth below, customer may use only for the benefit and management of the
purchasing entity and the management of the purchasing entities own items, records, documents, data
and processes. Customer use is limited to the number of entities, agencies, organizations, servers, web
servers, modules, databases, concurrent client seats/database connections, and related utilities as
identified on corresponding invoice and purchase orders/statements. Customer may not use for the
purpose of servicing third party entities, agencies or organizations unless specifically identified in
name and on corresponding invoice and purchase orders/statements.
1.2 Storage/Network Use. Customer may store or install a copy of the Software on a storage device, such
as a network server, used only to install or run the Software over an internal network; however,
Customer must acquire sufficient concurrent client licenses so as to maintain one license for each
simultaneous user during peak demand. Customer agrees to provide technical or procedural methods to
ensure the use of the Software does not exceed the number of concurrent licenses purchased pursuant to
this Agreement.
1.3 Transfer. Customer may not transfer License, Software, or Documentation.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
1.1 Reverse Engineering, Customer may not modify, translate, reverse engineer, decompile, disassemble
(except to the extent applicable laws specifically prohibit such restrictions) or create derivative works
based on the Software, or any portion thereof.
1.2 Copying. Customer may make copies of the Software for the purposes of backup and archival. All
copies must remain in the possession of Customer and do not constitute legal copies for the purpose of
additional installations. Documentation may be copied or printed from disk as needed to distribute to
all authorized uses within the Customer's organization as needed so long as all material remains
unaltered.
1.3 Separation of Components. The Software is licensed as a single product. Customer may not separate
the Software's component parts for use on more than one computer.
FIIeOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle; WA 98188 - Phone 800-603-6802
Page 1 of 3
1.4 Rental. Customer may not rent or lease the Software or Documentation.
1.5 Proprietary Notices. Customer may not remove any proprietary notices, labels or marks on the
Software or Documentation.
1.6 Upgrades. If the Software is an upgrade from another product, this upgrade License supersedes any
previous License. Customer may use the Software only in conjunction with the upgraded product, or
Customer must destroy the upgraded product.
1.7 Use of FileOnQ's Name. Customer may not use FileOnQ's or FileOnQ's suppliers' name, logos, or
trademarks in any manner including, without limitation, in Customer's advertising or marketing
materials, except as is necessary to affix the appropriate copyright notices as required herein.
TITLE
Title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain
in FileOnQ. The Software and the Documentation is protected by the copyright laws of the United States and
international copyright treaties.
4 TERMINATION
The License is in effect until terminated. The License will terminate automatically if Customer fails to comply
with the limitations described herein. On termination, Customer must destroy all copies of the Software and
Documentation.
EXPORT CONTROLS
This Software is subject to the export control laws of the United States. Customer may not export or re-export
the Software without the appropriate United States and foreign government licenses. Customer shall otherwise comply
with all applicable export control laws and shall defend, indemnify and hold Company and all Company suppliers
harmless from any claims arising out of Customer's violation of such export control laws.
MISCELLANEOUS
1.1 This Agreement represents the complete agreement concerning this license between the parties and
supersedes all prior agreements and representations between them.
1.2 This Agreement may be amended only in writing executed by both parties.
1.3 The terms of this Agreement take precedence over any purchase order that might be used.
1.4 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be
reformed only to the extent necessary to make it enforceable and the remainder of this Agreement shall
nonetheless remain in full force and effect. This Agreement shall be governed by and construed under
Washington State law as such law applies to agreements between Washington State residents entered
into and to be performed within the state of Washington, except as governed by Federal law. The
application of the United Nations Convention of Contracts for the International Sale of Goods is
expressly excluded.
U.S. GOVERNMENT END -USERS
The Software and Documentation is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT
1995), consisting of "commercial computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the U.S. Government only as a commercial end
item. Government end users acquire the Software and Documentation under the following terms:
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle; WA 98188 - Phone 800-603-6802
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(a) for acquisition by or on behalf of civilian agencies, consistent with the terms set forth in 48 C.F.R.
12.212 (SEPT 1995); or
(b) for acquisition by or on behalf of units of the Department of Defense, consistent with the terms set
forth in 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995).
LIMITED WARRANTY
FileOnQ warrants that the media containing the Software, if provided by FileOnQ, is free from defects in
material and workmanship and will so remain for thirty (30) days from the date Software is acquired. FileOnQ's sole
liability, and Customer's sole remedy, for any breach of this warranty shall be, in FileOnQ's sole discretion:
(a) to replace defective media; or
(b) if the above remedy is impracticable, to refund the License fee paid for the Software.
Replaced Software and Documentation shall be covered by this limited warranty for the period remaining under
the warranty that covered the original Software, or if longer, for thirty (30) days after the date of shipment of the
replaced Software. Only if Customer informs FileOnQ of a problem with the Software during the applicable warranty
period and provide evidence of the date Customer acquired the Software will FileOnQ be obligated to honor this
warranty. FileOnQ will use reasonable commercial efforts to replace or refund pursuant to the foregoing warranty
within thirty (30) days of being so notified. THIS IS A LIMITED WARRANTY AND IT 1S THE ONLY WARRANTY
MADE BY FILEONQ. FILEONQ MAKES NO OTHER WARRANTY, REPRESENTATION, OR CONDITION,
EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD -PARTY RIGHTS. THE
DURATION OF IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION,
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE,
IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME JURISDICTIONS DO NOT ALLOW
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO LIMITATIONS MAY
NOT APPLY IN THOSE JURISDICTIONS. NO FILEONQ AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE
ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to
the Software by Customer during the warranty period; if the media is subjected to accident, abuse, or improper use; or
if Customer violates the terms of this Agreement, then this warranty shall immediately be terminated. This warranty
shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version
of hardware and software with which the Software was designed to be used as described in the Documentation.
THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY HAVE OTHER
LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL FILEONQ OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO CUSTOMER OR ANY
OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES
OR LOSSES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR
PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE,
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY IN THOSE JURISDICTIONS.
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 - Phone 800-603-6802
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Exhibit D
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MAINTENANCE & SUPPORT SERVICE LEVEL POLICY
1. Purpose
This is a statement of policy for customers of FileOnQ. FileOnQ strives to provide prompt, quality
service for our customers the first time, every time, in a manner that ensures the customer's
success with their FileOnQ product. This policy statement is not intended to be binding upon
FileOnQ and is subject to change at the discretion of FileOnQ. The levels of service provided will
be measured and monitored by the Director of Customer Services and Technical Support staff.
2. Definitions
A. Help Desk — Customer's internal support resource who provides the first level of
support for the software.
B. Customer Contact — Person designated as the primary contact for Support calls.
Only authorized Customer Contacts will be allowed to contact FileOnQ Technical
Support.
C. Technical Support - Staff and resources dedicated to level II support of all
customer support issues.
D. Level III Support — Members of engineering assigned to resolve complex
customer issues.
E. Customer — Users of FileOnQ software who have chosen a direct support
relationship with FileOnQ, who have a valid maintenance contract, and are using
a current version of software.
F. Emergency Support — Issues at priority 0 or 1, as defined in section 4, requiring
support outside of normal service hours. Telephone Support is defined in section
12.
3. Mission
The mission of FileOnQ is to provide fast, friendly and professional service and to go beyond
the minimum requirements to insure the customer's satisfaction and success with our products.
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 — Phone 800-603-6802
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4. Goals and Metrics
FileOnQ strives to achieve at minimum the following response and escalation times:
Priority
Description
Response
Escalation
Level
Time
Time
0
System down. Users unable to access or input
1 hour
1 hour
records.
1
Significant problem. Multiple users are down or
1 hour
2 hours
key function is unavailable.
2
Minor problem. Some records not available or a
2 hours
1 day
feature is not operating ro erl .
3
Intermittent. Problem may slow down data input
2 hours
1 month
or retrieval, or a workaround is needed to use a
feature.
4
Cosmetic. Does not affect ability to efficiently
4 hours
6 months
enter and retrieve data or use all required
features
Response Time: The time between the customer contact notifying Technical Support of their
need for support and the return call from Technical Support.
Escalation, Time: The time between the start of troubleshooting by Technical Support and the
escalation of the issue to Level III Support or Support Management.
FileOnQ will measure response and escalation times monthly and will conduct regular customer
satisfaction surveys.
5. Services to be provided by FIIeOnQ Technical Support
A. Customer telephone support
B. Customer e-mail support
C. Use of GoToAssist for troubleshooting assistance
D. After-hours emergency support
E. On -site support available at an hourly rate plus travel expenses
F. Limited emergency hardware loaners
G. Escalation to level III support
H. Escalations to third party supplier
1. Unresolved Calls reporting
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 — Phone 800-603-6802
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6. Service Levels
For each of the services specified in section 5, a parameter, or set of parameters, which give a
measure of the quality of the service, is specified. The target values for these parameters
represent the service level that FileOnQ strives to provide. The FileOnQ Director of Customer
Services may modify these parameters as needed. Modifications to this agreement will not
commence until the customer has been given 30 days' notice. FileOnQ shall not be required to
honor these commitments should the contract between FileOnQ and the customer be canceled.
A. Customer telephone support
Telephone support is provided on a call back basis. Once a message is left, a support
analyst will return the call within the response time specified in section 4. Problems are
handled immediately and resolution is not to exceed the escalation time specified in
section 4 before being escalated to level III support. Telephone support coverage is
defined in section 12.
B. Customer e-mail support
The response time for e-mail support is not to exceed 24 hours (excluding weekends and
holidays), although it will typically be less than 4 hours. Problems are answered
immediately when read, unless the problem requires escalation.
C. Use of GoToAssist for troubleshooting assistance
FileOnQ Support Analysts may use our GoToAssist enabled website to access machines
to assist in troubleshooting. GoToAssist will allow the analyst to see what the customer is
seeing and control the customer's PC. This is available only to customers who have
Internet access available to their machines. FileOnQ cannot access any machine without
the customer's permission.
D. After-hours emergency support
FileOnQ offers emergency technical support during times not covered by normal support
hours defined in section 12. This option is available to customers who choose to purchase
our premier maintenance contact. The response time for emergency voice mail messages
is not to exceed 2 hours. Problems are handled immediately; however, some company
resources may not be available at the time of service, which may affect the overall
resolution of the problem.
E. On -site support available at an hourly rate plus travel expenses
FileOnQ provides on -site technical support for an hourly rate, plus travel expenses, should
a problem be deemed unsolvable via the telephone. The Director of Customer Services
will give authorization for on -site support.
FileOnO, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 — Phone 800-603-6802
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F. Limited Hardware Loaners
FileOnQ provides a limited inventory of hardware loaners (such as barcode scanners), for
any equipment purchased from FileOnQ that fails and requires service from the
manufacturer. These loaners can be shipped next day air upon FileOnQ's receipt of a
valid PO for the value of the equipment to be shipped. PO's must be received by 2:30 PM
Pacific Time to be shipped that day. Hardware not returned within 30 days of shipment
will be invoiced for the full cost.
G. Escalation to level III support
Problems that cannot be resolved within a reasonable time after the initial contact will be
escalated to level III support based on the escalation schedule defined in section 4.
FileOnQ will direct all resources necessary to bring the problem to resolution.
H. Escalation to third party vendor
In some instances, the customer may receive a higher level of service working directly
with the vendor or manufacturer of one of the third party products supplied by FileOnQ.
Technical Support may direct the customer to those resources as needed.
1. Unresolved Calls reporting
The FileOnQ Director of Customer Services will run an Unresolved Calls Report on a
weekly basis in order to monitor quality. Results are reported to FileOnQ upper
management and are discussed with appropriate staff members.
7. Scope and Limitations
A. FileOnQ will provide general support for software manufactured by FileOnQ and
hardware sold by FileOnQ. This includes the following:
1. Installation and configuration support for the Server application
2. Installation and configuration support for the Client application
3. Hardware configurations and troubleshooting
4. Defect maintenance
5. Database problems caused by a supported FileOnQ product
B. Support will be provided either by email or telephone as the customer chooses.
Support will only be provided to authorized Customer Contacts who are familiar
with all of the FileOnQ products in use. The Customer Contact must also be
familiar with the application being run.
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D. The following list details some of the issues that are not covered by a maintenance
contract. This list should in no way be considered exhaustive.
1. Database Management
2. Maintenance or troubleshooting of the network
a. Connections
b. Operating system
c. Infrastructure
d. Etc.
3. Data or system security
4. Third party Software
5. Maintenance of the Server
a. Operating System
b. Hardware
c. Etc.
8. Management Escalation Procedure
All requests to escalate to management will be responded to by the Director of Customer Services
within 2 hours. In the event the Director of Customer Services is unavailable, the backup team
member will handle the problem and use all available resources to remedy the problem.
9. Defect Prioritization
Defects discovered by Technical Support on shipping versions of software will be reported to the
Engineering team. These defects will be prioritized with other issues. Customer priorities will be
based on the following criteria:
A. Number of customers potentially impacted by the defect
B. Severity of the defect to the operation of the customer
C. Impact to data integrity
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10. Defect Resolution
A. Defect resolution may take any one of the following forms at the discretion of the
Defect Resolution Team (executive staff from Customer Support, Development
and Quality Assurance).
1. Work around
a. Redesign of the customer's application
b. A change in the database
c. A change in the customer's operational procedures
d. Other
2. Installation of a software patch
3. Upgrade to a newer release of the version
11. Customer Responsibilities
FileOnQ will support any hardware or software that we have provided to the customer. FileOnQ
cannot take responsibility for managing or maintaining a customer's network or database.
A. Customer must utilize their internal Help Desk for assistance before calling
FileOnQ Technical Support.
B. Caller must be an authorized Customer contact, who is familiar with the client and
server portions of the software.
C. Caller must be an authorized Customer contact, who is familiar with the application
and their own data management.
D. IT resources may be required for some issues.
E. Customer must be using current versions of FileOnQ software.
12. Operational Procedures
A. Contact information
1. Email: Supportfileong.com
2. Phone: 1-800-603-6802 selection 4 from the menu
3. Emergency Support: 1-800-603-6802 selection 5 from the menu
B. Service Hours
1. Monday through Friday 8:00 a.m. to 8:00 p.m. eastern time, excluding holidays.
2. After hours support covering evenings, weekends, and holidays after business
hours is an option.
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA.98188 — Phone 800-603-6802
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').n(A
C. Call Tracking
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1. Customer records will be maintained in a Customer Support Call Tracking
system. All communications between the customer and Technical Support will
be logged under the customer record to maintain a history of the customer's
system and issues to allow for personalized service and support.
2. FileOnQ will utilize this system to maintain control of all incoming and open
issues to provide the highest level of service and follow-up.
D. Prioritization
Most calls will be handled on a first come first served basis; however, situations of
a critical nature may be taken out of turn. Customers must communicate the level
of priority when contacting FileOnQ based on the chart in section 4.
FileOnQ, Inc. - Corporate Offices: 832 Industry Drive Seattle, WA 98188 — Phone 800-603-6802
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