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05/18/2021 04E Resolution authorizing a Professional Services Agreement and a License, Maintenance and Support Agreement for the purchase and use of the eProsecutor prosecution case management systemBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 4.E. For Meeting of: May 18, 2021 ITEM TITLE: Resolution authorizing a Professional Services Agreement and a License, Maintenance and Support Agreement for the purchase and use of the eProsecutor prosecution case management system SUBMITTED BY: Cynthia I. Martinez, Senior Assistant City Attorney SUMMARY EXPLANATION: The City of Yakima Prosecution Division is a paperless office. All of our case files are managed by JustWare, a software case management system we share with the County Prosecutor. This City and County partnership has proved valuable for workflow and substantive prosecution purposes. The paperless prosecution environment dovetails with the electronic complaint system used by police and the electronic court case management system. On February 25, 2020, we received notice from the owner of JustWare, Journal Technologies, they are discontinuing service and support for JustWare effective June 30, 2021. Faced with this challenge, the City and County began jointly searching for a replacement case management system. An investigation of recent RFPs in Washington (Benton and Spokane Counties) for Prosecution Case Management Systems revealed that eProsecutor, Journal Technologies' new product, had been the successful program proposal. The other proposals were not comparable to the eProsecutor product, and because Journal Technologies owns JustWare and eProsecutor, migration of our prosecution data is possible. The County Prosecutor and City Legal discussed trying to get by with a non -supported JustWare. However, County and City Info Systems discouraged this option because each of our agencies is paperless or nearly paperless and the stakes are high if we lose or have no access to our data. Journal Technologies gave a remote demonstration of eProsecutor. We found the program to be a powerful case management tool and we have checked references. Journal Technologies has agreed, if we sign a purchase agreement before June 30, 2021, they will service and support JustWare until we go live with the eProsecutor. The implementation process is estimated to take nine months to a year. For Council's consideration are agreements concerning the purchase of eProsecutor. The first item is an I nterlocal Agreement between the City and the County to jointly purchase e- Prosecutor. The City would pay 25 percent of the cost and the County the remaining 75 percent. The total cost of the system is $170,000. This is considerably less than the first quote of $305,000, which the parties worked to reduce. The City portion of that amount is $42,500, with $10,000 due up front and the remaining $32,500, due upon full implementation. This split is divided by the number of program users and also applies to the ongoing license and service fees. The second item is the Professional Services and the License, Maintenance and Support Agreement for the purchase and ongoing use of Journal Technologies, I nc. eProsecutor case management system. The terms of these agreements are substantially settled. The final format will be considered by the County Commissioners first, and then forwarded to the City. ITEM BUDGETED: STRATEGIC PRIORITY: APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt resolution ATTACHMENTS: Description Upload Date resolution 5/1212021 D Yakima - DRAFT eSeries Professional Services 5t6(2021 Agreement \12 - 4.19 Yakima Craft eSeHes License Maintenance and Support 516f2021 Agreement \0- - 4.19 Exhibit B - Statement of Work (Project Workplan) 5(612021 MOT, Public Safety Type Cb\er Merno Contract Contract Exhibit RESOLUTION NO. R-2021- A RESOLUTION authorizing a Professional Services Agreement and a License, Maintenance and Support Agreement for the purchase and use of the eProsecutor prosecution case management system. WHEREAS, the City of Yakima and Yakima County share a prosecution case management system, JustWare, that is terminating and will no longer be supported on June 30, 2021; and WHEREAS, the eProsecutor case management system is a next generation case management system that will meet the needs of the parties; and WHEREAS, it is in the best interest of the City and the County, and the citizens who rely upon their services to retain a joint records system; and WHEREAS, the City Council of the City of Yakima deems it to be in the best interest of the City of Yakima to execute a Professional Services Agreement and a License, Maintenance and Support Agreement for the purchase of eProsecutor case management system; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is authorized to execute a Professional Services Agreement and License, Maintenance and Support Agreement, substantially similar to the submitted agreements, for the purchase and ongoing use of Journal Technologies, Inc. eProsecutor case management system, the final draft to be approved by the City Attorney. ADOPTED BY THE CITY COUNCIL this 18th day of May, 2021. Patricia Byers, Mayor ATTEST: Sonya Claar Tee, City Clerk Journal Technologies, Inc. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT (this "Agreement"), by and between Journal Technologies, Inc., a Utah corporation (hereinafter "Journal Technologies"), and Yakima County and the City of Yakima, political subdivisions of the State of Washington, on behalf of the Yakima County Prosecutor's Office, the City of Yakima City Attorney, and Yakima County Department of Assigned Counsel, (hereinafter "Client"), is made as of the date executed by both Journal Technologies and Client (the "Effective Date"). In consideration for the representations and agreements contained herein, the parties hereby covenant and agree as follows: 1. DEFINITIONS 1.1 Deliverable(s) means one or more items (which may include software, services or other items) to be delivered by Journal Technologies to Client under a Statement of Work or this Agreement. 1.2 eSeries® Go Live has the meaning ascribed to such term in the License, Maintenance and Support Agreement. 1.3 Legacy Data means information stored on the case management system JustWare (and related programs), a version of which Client licensed from Journal Technologies prior to the Effective Date of this Agreement. 1.4 License Agreement means that certain Software License, Maintenance and Support Agreement entered into by Journal Technologies (as Licensor) and Client (as Licensee) concurrently herewith (as such agreement may be amended from time to time pursuant to the terms thereof). 1.5 Licensed Software has the meaning ascribed to such term in the License Agreement. 1.6 Project means each project undertaken by Journal Technologies under Section 2 ("Services") pursuant to a Statement of Work. 1.7 Service Fees means the fees to be paid by Client for Services, as set forth in the Pricing :Proposal attached hereto as Exhibit A for the initial Services or in the applicable Statement of Work for additional Services. 1.8 Services means those services provided by Journal Technologies to Client under Section 2 ("Services") of this Agreement. 1.9 Statement of Work means a statement of work, prepared and executed pursuant to the provisions of Section 2 ("Services") of this Agreement. -1- 2. SERVICES 2.1 Projects. Journal Technologies agrees to provide Services to Client, as such may be determined from time to time in accordance with the provisions of this Section 2 ("Services"). All Services will be rendered in accordance with the provisions of this Agreement, the applicable Statement of Work, if any, and any other guidelines agreed upon in writing by Journal Technologies and Client. 2.2 Project t Requests. If Client requests that Journal Technologies provide Services to Client other than those expressly set forth in this Agreement or Exhibit A hereto, Client shall submit a reasonably detailed Project request to Journal Technologies. Journal Technologies shall have the right to request additional details about the proposed Project described in the Project request. If Journal Technologies believes that it can provide the requested Services, within a commercially reasonable time, Journal Technologies shall submit a proposed Statement of Work to Client. 2.3 Procedure for Agreement upon Statements of Work. 2.3.1 Statement of Work. Upon Client's receipt of a proposed Statement of Work, Journal Technologies and Client shall attempt reasonably to meet, consult and agree upon a mutually approved Statement of Work which, unless otherwise agreed by the parties, shall include the agreed costs and payment terms for a Project. 2.3.2 Incorporation of Statement of Work. At such time as the parties shall have agreed upon a Statement of Work, the Statement of Work as so completed, approved and executed by their authorized representatives shall. constitute an agreement under and be subject to the non -conflicting provisions of this Agreement. 2.3.3 Changes. Modifications to a Statement of Work shall be accomplished by the negotiation and execution of an amendment reasonably satisfactory to each of the parties, which may result in an increase or decrease in the overall cost of a Project. 2.4 Journal Technologies' Employees and Subcontractors; Indemnification Generally. Journal Technologies shall require all of its employees and subcontractors to comply with the terms of this Agreement and any reasonable and lawful employment and security policies and procedures adopted from time to time by Client. Journal Technologies shall procure all business permits necessary to perform under this Agreement and pay all related fees. Journal Technologies and Client shall each indemnify, defend and hold harmless the other and their respective affiliates, officers, directors, employees and agents, from and against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by the indemnified party, arising out of or resulting from (i) the violation by the indemnifying party or its employees, agents, or contractors of any applicable law, order, ordinance, regulation or -2- code or (ii) the negligence or intentional misconduct of the indemnifying party or its employees, agents or contractors. 2.5 Status Reporting. Journal Technologies will provide reasonable status reports to Client upon request. 2.6 Status Meetings. If Client so requests, Journal Technologies shall hold periodic status meetings with Client management in order to review the status of Journal Technologies activities. 2.7 Record Keeping and Inspection. Journal Technologies shall maintain reasonable accounting records, in a form sufficient to substantiate Journal Technologies' charges hereunder. Journal Technologies shall retain such records in accordance with its general record retention policies. Client shall have the right to inspect any such records upon reasonable notice, at Journal Technologies' main office and during Journal Technologies' normal business hours. 2.8 Go Live. Upon the occurrence of each Go Live of the Licensed Software for a Project, Client is deemed to have recognized that the Deliverables provided in respect of such Project satisfy the applicable requirements therefor, except to the extent otherwise expressly set forth in a writing signed by both parties in connection with such Go Live. 2.9 Ownership of Product of Services. Unless otherwise specified to the contrary in the applicable Statement of Work, all data, materials, Deliverables and other products developed by Journal Technologies under a Statement of Work or this Agreement shall be and remain the sole and exclusive property of Journal Technologies, which shall retain all rights therein; provided that upon payment of all required amounts by Client, Client shall have the right to utilize any Deliverables for Client's internal purposes in accordance with the terms and conditions of the Statement of Work and the License Agreement. 3.1 Services Warranties. Journal Technologies warrants that the Services rendered to Client pursuant to this Agreement shall be performed in a competent and professional manner, and that each of Journal Technologies' employees, contractors and agents assigned to perform Services pursuant to this Agreement shall have training, background and skills commensurate with the level of performance reasonably expected for the tasks to which he or she is assigned. 3.2 Warranty of Law. Journal Technologies warrants and represents that to the best of its knowledge: (i) Journal Technologies has full authority to enter into this Agreement and to consummate the transactions contemplated hereby and (ii) this Agreement is not prohibited by any other agreement to which Journal Technologies is a party or by which it may be bound (the "Legal Warranty"). In the event of a breach of the Legal Warranty, Journal Technologies shall indemnify and hold harmless Client from and against any and all losses, liabilities, damages, causes of action, claims, demands, and -3- expenses (including reasonable legal fees and expenses) incurred by Client, arising out of or resulting from said breach. 3.3 No Other Warranties. THE WARRANTIES AND REPRESENTATIONS STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF .MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARRANTIES WITH RESPECT TO THE OPERATION OF ANY :DELIVERABLE SHALL BE AS SET FORTH IN THE LICENSE AGREEMENT OR STATEMENT OF WORK. Service Fees shall be payable in respect of Services provided by Journal Technologies (including its agents and contractors) to, for, or at the request of Client or those acting on its behalf under this Agreement, including but not limited to installation, configuration, training and the like. If any Services are requested and provided without a Statement of Work, they will be billed by Journal Technologies to Client in accordance with Journal Technologies' normal billing practices at the time, on a time -and -expense basis, with hourly rates at the then -standard rates, and expenses charged at cost, or as the parties may otherwise agree in writing. Unless otherwise set forth in a written agreement of the parties (including, without limitation, in any Exhibit hereto), payment for all Service Fees for the Licensed Software shall become due and payable upon the final eSeries® Go Live of the Licensed Software for such Project, net thirty (30) days. Unless otherwise set forth in an applicable Statement of Work or other written agreement of the parties, any sales, use, excise or similar taxes levied on account of payments to Journal Technologies are the responsibility of the Client. 5. LIMITATIONS ON LIABILITY NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANTICIPATED REVENUES (OR LIKE AMOUNTS) IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT. FURTHERMORE, CLIENT'S TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAYABLE HEREUNDER TO JOURNAL TECHNOLOGIES. IN NO EVENT SHALL JOURNAL TECHNOLOGIES' TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAID HEREUNDER TO JOURNAL TECHNOLOGIES. • 4301 a I N NON I NO 6.1 Client's Responsibilities. Client hereby agrees that (1) all materials received from Journal Technologies under this Agreement are the confidential and proprietary information of Journal Technologies, (ii) Client shall take all necessary steps to protect and ensure the confidentiality of such confidential information, and (iii) except as permitted by a Statement of Work, none of such materials shall be in any way disclosed by Client to any third party, in whole or in part, without the prior written consent of Journal Technologies, which may be granted or withheld in its sole discretion. If Client becomes aware of the unauthorized possession of such materials, it shall promptly notify Journal Technologies. Client shall also assist Journal Technologies with preventing the recurrence of such unauthorized possession and with any litigation against the third parties deemed necessary by Journal Technologies to protect its proprietary rights. 6.2 Journal Technologies' Responsibilities. Journal Technologies hereby agrees that (i) any information related to the official business of Client that Journal Technologies obtains from Client in the course of the performance of this Agreement is the confidential and proprietary information of Client, (ii) Journal Technologies shall take all necessary steps to protect and ensure the confidentiality of such information, and (iii) such information shall not be in any way disclosed by Journal Technologies to any third party, in whole or in part, without the prior written consent of Client, which may be granted or withheld in its sole discretion. If Journal Technologies becomes aware of the unauthorized possession of such information, it shall promptly notify Client. Journal. Technologies shall also assist Client with preventing the recurrence of such unauthorized possession and with any litigation against the third parties deemed necessary by Client to protect its proprietary rights. 6.3 Confidentiality Breach. In the event a party breaches any of its obligations under this Section 6 ("Confidentiality"), the breaching party shall indemnify, defend and hold harmless the non -breaching party from and against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by the non -breaching party arising out of such breach. In addition, the non -breaching party will be entitled to obtain injunctive relief against the breaching party. 6.4 Exclusions. The provisions of this Section 6 ("Confidentiality") shall not apply to any information (i) that is in the public domain prior to the disclosure or that becomes part of the public domain other than by way of a breach of this Agreement, (ii) that was in the lawful possession of Journal Technologies or Client, as the case may be, prior to the disclosure without a confidentiality obligation to any person, (iii) that was disclosed to Journal Technologies or Client, as the case may be, by a third party who was in lawful possession of the information without a confidentiality obligation to any person, (iv) that was independently developed by Journal Technologies or Client, as the case may be, outside the scope of this Agreement or (v) that Journal Technologies or Client, as the case may be, is required to disclose by law or legal process. 7. TERM AND TERMINATION 7.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the terms of this Section 7 ("Term and Termination"). -5- 7.2 Term of Statements of Work. Each Statement of Work pertaining to the provision of Services, and each other written agreement for such Services, shall commence on the date of execution of such Statement of Work or other agreement and shall continue in full force and effect thereafter until terminated in accordance with the provisions thereof or until the Services required have been provided and paid for. A termination of this Agreement shall simultaneously terminate any outstanding Statements of Work or other agreement for Services. 7.3 Termination by Journal Technology 7.3.1 Payment Default. Journal Technologies shall have the right to terminate this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, in law and/or in equity), for any failure of Client to make payments of amounts due when the same are due, and such failure continues for a period of thirty (30) days after written notice thereof by Journal Technologies to Client. 7.3.2 Other Client Defaults. Journal Technologies may terminate this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, in law and/or in equity), for any other material breach by Client which violation or breach continues for a period of thirty (30) days after written notice thereof by Journal Technologies to Client. 7.4 Termination by Client. Client shall have the right to terminate this Agreement (reserving cumulatively all other rights and remedies under this Agreement, in law and/or in equity) without further obligation or liability to Journal Technologies (except as specified in Subsection 7.5 below) if Journal Technologies commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Client to Journal Technologies of such breach. Client shall have the right to terminate this Agreement effective immediately and without prior notice if Journal Technologies goes into liquidation or files for bankruptcy. 7.5 Effect of Termination. Termination of this Agreement or any Statement of Work shall not affect any rights and/or obligations of the parties which arose prior to any such termination and such rights and/or obligations shall survive any such termination. Within thirty (30) days after the effective date of any such termination, Client shall pay Journal Technologies' fees and expenses at its then -standard rates for all. Services rendered under the applicable Statement of Work or this Agreement up to the effective date of termination, including, without limitation, all work in process. Upon termination, each party shall return the confidential property of the other party obtained under the terminated Statement of Work or this Agreement, as applicable. This includes, without limitation, all work product of Journal Technologies produced pursuant to this Agreement or any Statement of Work, and Client shall have no further right to retain or use such work product following termination. In addition, the confidentiality obligations of the parties in Section 6 ("Confidentiality") shall survive the termination of this Agreement. -6- 10 GENERAL 8.1 Waiver Amendment or Modification. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by both parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. 8.2 Notice. All notices under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person, by commercial overnight courier or by registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: To Journal Technologies: Journal Technologies, Inc. 915 East First Street Los Angeles, CA 90012 Attention: Maryjoe Rodriguez, Vice President and Munger, Tolles & Olson LLP 1155FSt. NW Washington, DC 20004 Attention: Brett Rodda To Client: Agency Name Address Attention Name Title Email Phone 8.3 No Third Party :Beneficiaries. This Agreement is not intended to create any right in or for the public, or any member of the public, any subcontractor, supplier or any other third party, or to authorize anyone not a party to this Agreement to maintain a suit to enforce or take advantage of its terms. 8.4 Successors and Assigns. Neither party may assign this Agreement in whole or part without the prior written consent of the other party; provided that Journal Technologies may assign this Agreement to another subsidiary of Daily Journal Corporation, directly or by operation of law, without the prior written consent of Client. Any attempt to assign this Agreement without the prior written consent of the other party is void and without legal effect, and such an attempt constitutes a material breach and grounds for termination by the other party. Subject to the foregoing, all of the terms, 7- m conditions, covenants and agreements contained herein shall inure to the benefit of, and be binding upon, any successor and any permitted assignees of the respective parties hereto. It is further understood and agreed that consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. A transfer of corporate control, merger, sale of substantially all of a party's assets and the like, even though including this Agreement as an assigned asset or contract, shall not be considered an assignment for these purposes. 8.5 Dispute Resolution. Any dispute arising under or related to this Agreement shall be resolved exclusively as follows, with the costs of any mediation and arbitration to be shared equally by both parties: 8.5.1 Initial Resolution by Meeting. The parties shall first attempt to resolve amicably the dispute by meeting with each other, by telephone or in person at a mutually convenient time and location, within thirty (30) days after written notice of a dispute is delivered from one party to the other. Subsequent meetings may be held upon mutual agreement of the parties. 8.5.2 Mediation. If the dispute is not resolved within sixty (60) days of the first meeting, the parties shall submit the dispute to mediation by an organization or company specializing in providing neutral, third -party mediators. Client shall be entitled to select either (i) the location of the mediation or (ii) the organization or company, and Journal Technologies shall select the other. The mediation shall be conducted within sixty (60) days of the date the dispute is submitted to mediation, unless the parties mutually agree on a later date. 8.5.3 Arbitration. Any dispute that is not otherwise resolved by meeting or mediation shall be exclusively resolved by arbitration between the parties in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS, with the arbitration to be conducted in Los Angeles, California, or another location mutually agreed by the parties, or remotely, in accordance with terms and conditions of JAMS' virtual arbitration services. The results of such arbitration shall be binding on the parties, and judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction. 8.6 Control of Defense. All indemnification obligations under this Agreement are conditioned upon (1) written notice by the indemnified party to the indemnifying party within thirty (30) days of the indemnified party's receipt of any claim for which indemnification is sought, (ii) tender of control over the defense and settlement to the indemnifying party and (iii) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request; provided, however, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claim against the indemnified party. 12 8.7 Force Majeure. Neither party will be liable for any delay or failure to perform any obligation under this Agreement (except for any obligations to make payments) where the delay or failure results from any cause beyond such parry's reasonable control including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, internet service provider failures or delays, denial of service attacks, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, epidemics, or pandemics. 8.8 Governing Law. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to its conflict of law principles. 8.9 Independent Contractor. Journal Technologies, in performance of this Agreement, is acting as an independent contractor. Personnel supplied by Journal Technologies (including personnel supplied by subcontractors) hereunder are not Client's personnel or agents, and Journal Technologies assumes full responsibility for their acts. Journal Technologies shall be solely responsible for the payment of compensation of Journal Technologies employees and contractors assigned to perform services hereunder, and such employees and contractors shall be informed that they are not entitled to the provision of any Client employee benefits. Client shall not be responsible for payment of worker's compensation, disability or other similar benefits, unemployment or other similar insurance or for withholding income or other similar taxes or social security for any Journal Technologies employee, and such responsibility shall solely be that of Journal Technologies. 8.10 Severability. In the event any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. 8.11 Entire Agreement. This Agreement, together with the License Agreement and all Exhibits attached hereto and thereto, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter For the avoidance of doubt, the preceding sentence does not and shall not be interpreted to supersede any existing written contracts between the parties relating to JustWare, which contracts shall be governed solely in accordance with the terms of such contracts. 8.12 Counterparts. This Agreement and any Statement of Work may be executed in counterparts and by the exchange of signatures by facsimile or PDF. [Continued on Next Page] Kom 13 IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed as of the date last written below. JOURNAL TECHNOLOGIES, INC.: im. Printed Name and Title: Maryjoe Rodriguez, Vice President YAKIMA COUNTY im. Printed Name and Title: Date: Date: -10- 14 EXHIBIT A PRICING FOR PROFESSIONAL SERVICES (excluding license, maintenance and support fees) One -Time Cost JustWare to eProsecutor professional services, including expenses (Notes) Implementation services (including data conversion) $ 171,000 Interface (two-way with eDefender) included $ 171,000 JustWare to eDefender professional services, including expenses (Notes) Implementation services (including data conversion) $ 164,000 Interfaces (two-way with eProsecutor) included $ 164,000 335 000 The parties acknowledge that there must be significant involvement from the Client's IT personnel during the JustWare ("Legacy Data") conversion and during work on the interfaces. Since the Client's IT department, including the contractors that the Client's IT department engages, will become familiar with eProsecutor® and eDefender®'s ("Licensed Software") API, the Client will be able to assist with and maintain the interfaces as well as develop interfaces. Interfaces and data conversion included herein shall be as set forth below in accordance with the initial Statements of Work. Any additional interfaces and conversions will be done pursuant to subsequent Statements of Work with additional costs. With the Client's approval, Journal Technologies might use a third -party to assist with the conversion and interfaces. The Client will be responsible for ensuring the cooperation of its other contractors that are counterparties to the additional conversions and interfaces. The parties further acknowledge that Client will be primarily responsible for implementation work related to documents and reports. Additionally, the parties acknowledge that the implementation will follow a model previously used by Contractor with a separate customer, Benton County, Washington. - 11 - IR There are no upfront or implementation progress payments. The $171,000 professional service fees are due at eProsecutor Go Live and the $164,000 professional service fees are due at eDefender Go Live (collectively referred to as "eSeries Go Live elsewhere in this Agreement and in the License Agreement). Journal Technologies does not provide or install hardware or operating system software, or provide its maintenance and support. The Client acknowledges and agrees that Journal Technologies has prepared this EXHIBIT A on the assumption that the Client is exempt from federal excise taxes and without the inclusion of any Illinois or local sales or use taxes. Any sales, use, excise or similar taxes levied on account of payments to Journal. Technologies are the responsibility of the Client. Non -routine projects, including legislative -type updates and subsequent training, will be done pursuant to a Statement of Work using an agreed upon hourly rate plus expenses. Journal Technologies' current hourly rate is $175. -12- 16 Journal Technologies, Inc. This SOFTWARE LICENSE, MAINTENANCE AND SUPPORT AGREEMENT (this "Agreement"), by and between Journal Technologies, Inc., a Utah corporation (hereinafter "Licensor"), and Yakima County and the City of Yakima (hereinafter "Licensee"), political subdivisions of the State of Washington, on behalf of the Yakima County Prosecutor's Office, the City of Yakima City Attorney, and Yakima County Department of Assigned Counsel, is made as of the date executed by both Licensor and Licensee (the "Effective Date"). In consideration for the representations and agreements contained herein, the parties hereby covenant and agree as follows: DEFINITIONS 1.1 Application Administrator is a designated employee or contractor of Licensee responsible for managing the case management system. This role includes communicating with Licensor staff for support, troubleshooting problems, and coordinating maintenance tasks. 1.2 Customer Data means all non -configuration, case -related data entered into, contained in, modified in, or deleted from the Licensed Software, but not the Licensed Software itself. 1.3 Documentation includes user, administrative and technical electronic guides which facilitate the use of and relate to the Licensed Software, together with any written product information, instructions, specifications or use guidelines made available by Licensor. 1.4 eSeries Go Live means that the Licensed Software is being Used (as defined below) in an operational capacity with operational data in Licensee's production environment. 1.5 Legacy System means the proprietary computer software program JustWare and related software, including JusticeWeb and JustWare API, which Licensee licensed from Licensor, on behalf of each of the Yakima County :Prosecutor's Office and the Yakima County Department of Assigned Counsel, prior to the Effective Date of this Agreement, and which Licensor is replacing under the terms of this Agreement with the Licensed Software. For the avoidance of doubt Licensee shall continue to use the Legacy System, under the terms of separate agreements pertaining to the Legacy System of each of the Prosecutor's Office and Department of Assigned Counsel, until the time of eSeries Go Live. 1.6 Licensed Software means the proprietary computer software program or programs identified in Exhibit A ("LICENSE, MAINTENANCE AND SUPPORT FEES"), together with all related Documentation. 1.7 License, Maintenance and Support Fees means the fees to be paid by Licensee to Licensor annually in advance of each year of the License Term pursuant to Section 2.2.2 ("License, Maintenance and Support Fees"). 1.8 Loss Event Expenses means all losses, liabilities, damages, causes of action, claims, demands, expenses, professional services (including fees and costs for attorneys, crisis management, public relations, investigation, and remediation), and breach notification costs arising from, in connection with, or related to any of the following: (1) a data security breach involving Customer Data; (2) a violation of any law, statute, or regulation related to data security or data privacy involving Customer Data; (3) unauthorized access to or acquisition of Customer Data; (4) a loss of Customer Data; (5) a ransom or cyber extortion demand involving Customer Data; (6) misuse of Customer Data; or (7) an actual or alleged failure to: (a) provide adequate notice, choice, consent, access, or security regarding Customer Data; (b) take appropriate steps to ensure the accuracy of Customer Data; (c) adequately minimize the collection, processing, use, or retention of Customer Data; or (d) comply with cross -border data transfer laws and regulations regarding Customer Data. 1.9 Maintenance means enhancements, upgrades and new releases of the Licensed Software, which includes only those additions and/or modifications to the Licensed Software which (A) enhance functionality and/or performance without fundamentally altering the nature or manner in which the Licensed Software operates, and (B) are made generally available without additional or increased charges to other persons entitled to receive maintenance from Licensor. 1.10 Professional Services Agreement means that certain Professional Services Agreement between Licensor and Licensee, of even date herewith. 1.11 Support means access to technical assistance for the Licensed Software, including support for questions about functionality, the resolution of error messages, bug fixes and troubleshooting. -2- 18 1.12 Use or Using means (i) transferring any portion of the Licensed Software from storage units or media into computer or terminal equipment for utilization or processing; (ii) accessing any portion of the Licensed Software for any purpose (including, without limitation, viewing information already in the Licensed Software); or (iii) merging any Licensed Software in machine readable form into another program. 1.13 User means (a) any individual person, computer terminal or computer system (including, without limitation, any workstation, pc/cpu, laptop and wireless or network node) that has been authorized by the Licensee (through a username and password) to use the Licensed Software, or (b) any other non -agency government employees who are performing their jobs, or a computer terminal or computer system used by such a person, in each case, interfacing with or accessing the Licensed Software through an interface or its public portal or (c) any individual person who is a member of the general public (including litigants and their attorneys, reporters and interested citizens, but not government employees who are performing their jobs), or a computer terminal or computer system used by such a person, accessing the Licensed Software at any given time for any reason through its public portal (including to file documents electronically or to view information already in or accessible through the Licensed Software). 2. LICENSE 2.1 Grant of License. Upon commencement of the License Term, Licensor grants to Licensee and Licensee hereby accepts from Licensor a non-exclusive, non- transferable, personal license to install and Use the Licensed Software; provided, however, that Licensee's rights with respect to the Licensed Software are at all times and in all respects subject to the terms and conditions of this Agreement. Licensee's authorized Users may Use the Licensed Software only during the License Term and only so long as Licensee has paid the required License, Maintenance and Support Fees for such Users and is not otherwise in default under this Agreement. This license includes the right to make one copy of the Licensed Software in machine-readable form solely for Licensee's back-up purposes. The Licensed Software is the proprietary information and a trade secret of Licensor and this Agreement grants Licensee no title or rights of ownership in the Licensed Software. The Licensed Software is being licensed and not sold to the Licensee. The Licensed Software is protected by United States copyright laws and international copyright treaties, as well as other intellectual property laws. 2.2 License Term and License. Maintenance and SUDDort Fees. 2.2.1 License Term. The License Term shall commence on the date of initial Go Live; provided that the License, Maintenance and Support Fees for the first year of the License Term for any Users that will Use the Licensed Software as of or immediately following such Go Live must have been received prior to such date (and the license file shall not be delivered, and the License Term shall not begin, until such License, Maintenance and Support Fees have been received by Licensor). The License Term shall continue until the fifth anniversary of the date of final Go Live, and shall thereafter automatically renew for successive one-year periods (the "License Term"), unless -3- 19 Licensee elects to not renew the License Term upon written notice to Licensor given not less than ninety (90) days prior to the end of the then -current License Term. 2.2.2 License, Maintenance and Support Fees. Licensee shall make payment of the License, Maintenance and Support Fees to Licensor based on the number of Users and calculated in accordance with Exhibit A, in advance of each applicable year of the License Term, including each year of the original License Term and each one-year extension; provided that the License, Maintenance and Support Fees for the first year of the License Term must be paid prior to initial Go Live in accordance with the proviso set forth in Section 2.2.1. Annual License, Maintenance and Support Fees are subject to increase in accordance with Exhibit A. Licensee may increase the number of Users at any time upon written notice to Licensor, which shall be promptly followed by payment reflecting the increased License, Maintenance and Support Fees, calculated according to Exhibit A, and pro -rated for any partial year of the License Term. Licensee may also reduce the number of Users of the Licensed Software, and the commensurate fee payable, but such reduction shall only become effective at the beginning of the following year of the License Term, and the written reduction notice must be given at least sixty (60) days before the next anniversary of the start of the License Term. All sales taxes or similar fees levied on account of payments to Licensor are the responsibility of Licensee. 2.2.3 Certain Specific Limitations. Licensee shall not, and shall not permit any User or other party to, (a) copy or otherwise reproduce, reverse engineer or decompile all or any part of the Licensed Software, (b) make alterations to or modify the Licensed Software, (c) grant sublicenses, leases or other rights in or to the Licensed Software, or (d) permit any party access to the Licensed Software for purposes of programming against it. Licensee shall be solely responsible for preventing improper, unauthorized, accidental, or unlawful (1) misuse of User accounts for the Licensed Software; (2) changes by the Licensee to the Licensed Software or its database; or (3) software scripts from being added to the Licensed Software or its database by the Licensee. Licensee is also solely responsible for, and shall indemnify, defend, and hold harmless Licensor regarding, any Loss Event Expenses that arise from unlawful or accidental access or disclosure of Customer Data that is stored on a computer system, network, server, workstation, PC, desktop, notebook, or mobile device of the Licensee or one of its agents or contractors (other than Licensor or one of its agents or contractors). Section 6.2 ("Licensor's Responsibilities") shall apply to Customer Data stored on computer systems of Licensor or one of its agents or contractors. 2.2.4 E-Commerce Functionality Fees. If Public Portal is included in the Licensed Software and the e-commerce functionality of Public :Portal is utilized, Licensor shall provide a PCI compliant payment gateway and payment processing functionality. A merchant services agreement will be provided to Licensee upon request. If Licensee requires an alternate payment processor provider, Licensee is responsible for all additional development costs to connect Public Portal with the payment processor provider. 2.2.5 Source Code Escrow. Licensee shall have the opportunity to be added as a beneficiary under the Software Source Code Agreement between Licensor and InnovaSafe, Inc., as it may be amended from time to time, a copy of which is attached as -4- 20 Exhibit B ("SOURCE CODE ESCROW AGREEMENT"). Licensee shall complete the beneficiary enrollment form and provide the completed form to Licensor for submission to InnovaSafe. 3.1 Maintenance. Maintenance will be provided for the Licensed Software provided that Licensee has paid the applicable License, Maintenance and Support Fees described in Section 2.2.2, and subject to all of the terms and conditions of this Agreement. Maintenance for the Licensed Software will be available when the applicable enhancement, upgrade or release is first made generally available to persons entitled to receive maintenance from Licensor. 3.2 Support. Support for the Licensed Software and its Public Portal is available by telephone, e-mail, or internet support forum from 5:00 am to 6:00 pm Mountain time, Monday through Friday, except for federal holidays. Support for interfaces provided by Licensor using the Licensed Software's application programming interface (API) is available by the same contact methods and during the same times for ninety (90) days following Go Live. Licensor shall generally provide an initial response within four (4) hours of first contact. Licensor shall use all reasonable diligence in correcting verifiable and reproducible errors reported to Licensor. Licensor shall, after verifying that such an error is present, initiate work in a diligent manner toward development of a solution. If the error is categorized as "Critical" (meaning an error for which there is no workaround and which causes data loss, affects a mission critical task or poses a possible security risk that could compromise the system), Licensor shall provide a solution through a service release as soon as possible. Licensor shall not be responsible for correcting errors in any version of the Licensed Software other than the current version, with the exception of Critical errors, for which a service release will be provided for the most recent previous version as well. Licensor shall not be responsible for errors caused by hardware limitations or failures, network infrastructure, operating system problems, operator errors or any errors related to processes, interfaces or other software. 3.3 Conditions to Receive Support. 3.3.1 Licensee must designate one or more Application Administrators, each of whom shall be an employee or contractor of Licensee. Only a designated Application Administrator may request Support. It is the responsibility of Licensee to instruct Users to route Support requests through the Application Administrator. 3.3.2 Licensee must maintain a dedicated connection, approved by Licensor, to the Licensed Software's database and/or application server, with full screen access to the server and full administrative rights to publish information and make changes. 3.3.3 Licensee must maintain all related hardware and software systems required for the operation of the Licensed Software. Minimum System requirements are attached as Exhibit C ("SYSTEM REQUIREMENTS"). Licensor shall have no -s- 21 responsibility for configuring, maintaining or upgrading Licensee's operating system, hardware, network, or any other software not provided by Licensor. Licensor is not responsible for creating or maintaining database or storage backup files. 3.3.4 Licensee must keep current and have installed the latest generally available version of the Licensed Software or the most recent previous version. 3.3.5 Licensee must provide Licensor's support personnel with accurate configuration information, screen shots, or other files and documentation as required for each support request. 3.4 Other Support. Services that go beyond routine Support may be provided under the terms of a professional services agreement upon agreement of the parties. 4. WARRANTY 4.1 Licensed Software Warranty. Licensor warrants that the Licensed Software will perform in all material respects during the License Term in accordance with the applicable user, administrative, and technical electronic guides. Notwithstanding the foregoing, this warranty shall not apply and Licensor will incur no liability whatsoever if there is or has been (a) the use of any non -current version (or the most recent previous version) of the Licensed Software, (b) the combination of the Licensed Software with any other software not recommended, provided or authorized by Licensor, (c) modification of the Licensed Software, (d) any use of the Licensed Software in breach of this Agreement or (e) any failure to satisfy the conditions to receive Support under Section 3.3 ("Conditions to Receive Support") above. If at any time during the License Term the Licensed Software fails to perform according to this warranty, Licensee shall promptly notify Licensor in writing of such alleged nonconformance, and Licensor shall provide bug fixes and other Support, but only so long as the alleged nonconformance is not caused by an act of Licensee or any third party not under the control of or authorized by Licensor. After the bug fixes and Support have been provided, if any such non-performance materially impairs the ability of Licensee to utilize the Licensed Software, Licensee shall have the right, on thirty (30) days' notice, to terminate the license and this Agreement (with a credit for License, Maintenance and Support Fees paid with respect to the period in which utilization was materially impaired). 4.2 Warranty of Law. Licensor represents and warrants that to the best of Licensoe's knowledge: (i) there is no claim, litigation or proceeding pending or threatened against Licensor with respect to the Licensed Software or any component thereof alleging infringement of any patent or copyright or any trade secret or any proprietary right of any person; (ii) the Licensed Software complies in all material respects with applicable laws, rules and regulations; (iii) Licensor has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; and (iv) this Agreement is not prohibited by any other agreement to which Licensor is a party or by which it may be bound (the "Legal Warranty"). In the event of a breach of the Legal Warranty, Licensor shall indemnify and hold harmless Licensee from and against any and all losses, liabilities, -6- 22 damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by Licensee, arising out of or resulting from said breach. 4.3 Warranty of Title. Licensor further warrants that (1) it has good title to the Licensed Software; (ii) it has the absolute right to license the Licensed Software; (iii) as long as Licensee is not in material default hereunder, Licensee shall be able to quietly and peacefully possess and Use the Licensed Software provided hereunder subject to and in accordance with the provisions of this Agreement; and (iv) Licensor shall be responsible for and have full authority to license all proprietary and/or third party software modules, algorithms and protocols that are incorporated into the Licensed Software (the "Title Warranty"). In the event of a breach of the Title Warranty, Licensor shall indemnify and hold harmless Licensee from and against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by Licensee, arising out of or resulting from said breach. STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. LIMITATIONS ON LIABILITY NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANTICIPATED REVENUES (OR LIKE AMOUNTS) IN CONNECTION WITH OR ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT. FURTHERMORE, LICENSEE'S TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAYABLE HEREUNDER TO LICENSOR. IN NO EVENT SHALL LICENSO:R'S TOTAL LIABILITY WITH RESPECT TO CLAIMS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAID HEREUNDER TO LICENSOR FOR THE FIRST THREE YEARS OF THE LICENSE TERM. 6.1 Licensee's Responsibilities. Licensee shall implement reasonable and appropriate measures designed to help secure the Licensed Software and other materials received from Licensor under this Agreement from accidental or unlawful access or unauthorized or improper disclosure. Except as permitted by the terms of Section 2.1 ("Grant of License") or as required by law, Licensee shall not voluntarily and affirmatively disclose the Licensed Software or any of such materials to any third party, in whole or in part, without the prior written consent of Licensor, which may be granted or withheld in its sole discretion. If Licensee becomes aware of any accidental or unlawful access to or unauthorized or improper disclosure of the Licensed Software or any of such materials, it -7- 23 shall notify Licensor promptly, and in any event within 5 business days. Licensee shall also reasonably assist Licensor with preventing the recurrence of such accidental or unlawful access or unauthorized or improper disclosure and with any litigation against the third parties deemed necessary by Licensor to protect its proprietary rights. 6.2 Licensoe's Responsibilities. Licensor shall implement reasonable and appropriate measures designed to help secure confidential Customer Data of Licensee that Licensor obtains from Licensee in the course of the performance of this Agreement from accidental or unlawful access or unauthorized or improper disclosure. Except as required by law, Licensor shall not voluntarily and affirmatively disclose to any third party confidential. Customer Data that Licensor obtains from Licensee without the prior written consent of Licensee, which may be granted or withheld in its sole discretion. If Licensor becomes aware of any accidental or unlawful access to or unauthorized or improper disclosure of confidential Customer Data, it shall notify Licensee promptly, and in any event within 5 business days. Licensor shall also reasonably assist Licensee with preventing the recurrence of such accidental or unlawful access or unauthorized or improper disclosure and with any litigation against third parties deemed necessary by Licensee to protect its confidential Customer Data. For the avoidance of doubt, this Section is not intended to prevent Licensor's support personnel from accessing Licensee's Customer Data for purposes of investigating or resolving a Support request. 6.3 Confidentiality Breach. In the event a party breaches any of its obligations under this Section 6 ("Confidentiality"), the breaching party shall indemnify, defend and hold harmless the non -breaching party from and against any and all losses, liabilities, damages, causes of action, claims, demands, and expenses (including reasonable legal fees and expenses) incurred by the non -breaching party arising out of such breach. In addition, the non -breaching party will be entitled to obtain injunctive relief against the breaching party. 6.4 Exclusions. The provisions of this Section 6 ("Confidentiality") shall not apply to any information (a) that is in the public domain prior to the disclosure or that becomes part of the public domain other than by way of a breach of this Agreement, (b) that was in the lawful possession of the Licensor or Licensee, as the case may be, prior to the disclosure without a confidentiality obligation to any person, (c) that was disclosed to the Licensor or Licensee, as the case may be, by a third party who was in lawful possession of the information without a confidentiality obligation to any person, (d) that was independently developed by Licensor or Licensee, as the case may be, outside the scope of this Agreement or (v) that Licensor or Licensee, as the case may be, is required to disclose by law or legal process. 7. TERM AND TERMINATION 7.1 Term. The term of this Agreement shall expire at the end of the License Term or, if earlier, upon termination of this Agreement in accordance with the terms of this Section 7 ("Term and Termination"). 7.2 Termination by Licensor. -8- 24 7.2.1 Payment Default. Licensor shall have the right to terminate the license granted in Section 2.2 ("License Term and License, .Maintenance and Support Fees"), and this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, the Professional. Services Agreement, in law and/or in equity), for any failure of Licensee to make payments of amounts due to Licensor when the same are due (including, without limitation, any fees or other amounts due and payable to Licensor for implementation services under the Professional Services Agreement), and such failure continues for a period of thirty (30) days after written notice thereof by Licensor to Licensee. 7.2.2 Other Licensee Defaults. Licensor may terminate the license granted in Section 2.2 ("License Term and License, Maintenance and Support Fees"), and this Agreement (but reserving cumulatively all other rights and remedies under this Agreement, the Professional Services Agreement, in law and/or in equity), for any other material breach by Licensee which breach continues for a period of thirty (30) days after written notice thereof by Licensor to Licensee. 7.3 Termination by Licensee. Licensee shall have the right to terminate this Agreement (reserving cumulatively all other rights and remedies under this Agreement, the Professional Services Agreement, in law and/or in equity) without further obligation or liability to Licensor (except as specified herein and/or in the Professional Services Agreement) if Licensor commits any material violation or breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice by Licensee to Licensor of such breach. Licensee shall have the right to terminate this Agreement effective immediately and without prior notice if Licensor goes into liquidation or bankruptcy, or if Licensor permanently discontinues Maintenance and Support for the Licensed Software. 7.4 Actions Upon and Following Termination. Termination of this Agreement shall not affect any rights and/or obligations of the parties which arose prior to any such termination and such rights and/or obligations shall survive any such termination. Licensee must cease use of the Licensed Software immediately upon termination, and must remove and return the Licensed Software and all other products and information received by Licensee from Licensor within thirty (30) days after termination. If not removed and returned within such thirty (30) day period, Licensee hereby grants Licensor the right to remove the Licensed Software. In addition, the confidentiality obligations of the parties in Section 6 ("Confidentiality") shall survive the termination of this Agreement. GENERAL 8.1 Waiver Amendment or Modification. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by both parties. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof. -9- 25 8.2 Notice. All notices under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person, by commercial overnight courier or by registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: To Licensor: Journal Technologies, Inc. 915 East First Street Los Angeles, CA 90012 Attention: President and Munger, Tolles & Olson LLP 1155 F St. NW Washington, DC 20004 Attention: Brett Rodda To Licensee: Name Address Address Attention: 8.3 No Third Party :Beneficiaries. This Agreement is not intended to create any right in or for the public, or any member of the public, any subcontractor, supplier or any other third party, or to authorize anyone not a party to this Agreement to maintain a suit to enforce or take advantage of its terms. 8.4 Successors and Assigns. Neither party may assign this Agreement in whole or part without the prior written consent of the other party; provided that Licensor may assign this Agreement to another subsidiary of Daily Journal Corporation, directly or by operation of law, without the prior written consent of Licensee. Any attempt to assign this Agreement without the prior written consent of the other party is void and without legal effect, and such an attempt constitutes grounds for termination by the other party. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any successor and any permitted assignees of the respective parties hereto. It is further understood and agreed that consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. A transfer of corporate control, merger, sale of substantially all of a party's assets and the like, even though including this Agreement as an assigned asset or contract, shall not be considered an assignment for these purposes. 8.5 Dispute Resolution. Any dispute arising under or related to this Agreement shall be resolved exclusively as follows, with the costs of any mediation and arbitration to be shared equally by both parties: -10- 26 8.5.1 Initial Resolution by Meeting. The parties shall first attempt to resolve amicably the dispute by meeting with each other, by telephone or in person at a mutually convenient time and location, within thirty (30) days after written notice of a dispute is delivered from one party to the other. Subsequent meetings may be held upon mutual agreement of the parties. 8.5.2 Mediation. If the dispute is not resolved within sixty (60) days of the first meeting, the parties shall submit the dispute to mediation by an organization or company specializing in providing neutral, third -party mediators. Licensee shall be entitled to select either (i) the location of the mediation or (ii) the organization or company, and Licensor shall select the other. The mediation shall be conducted within sixty (60) days of the date the dispute is submitted to mediation, unless the parties mutually agree on a later date. 8.5.3 Arbitration. Any dispute that is not otherwise resolved by meeting or mediation shall be exclusively resolved by arbitration between the parties in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS, with the arbitration to be conducted in Los Angeles, California, or another location mutually agreed by the parties, or remotely, in accordance with terms and conditions of JAMS' virtual arbitration services. The results of such arbitration shall be binding on the parties, and judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction. 8.6 Control of Defense. All indemnification obligations under this Agreement are conditioned upon (i) written notice by the indemnified party to the indemnifying party within thirty (30) days of the indemnified party's receipt of any claim for which indemnification is sought, (ii) tender of control over the defense and settlement to the indemnifying party and (iii) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request; provided, however, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claim against the indemnified party. 8.7 Force Majeure. Neither party will be liable for any delay or failure to perform any obligation under this Agreement (except for any obligations to make payments) where the delay or failure results from any cause beyond such party's reasonable control including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, internet service provider failures or delays, denial of service attacks, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, epidemics, or pandemics. 8.8 Governing Law. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to its conflict of law principles. 27 8.9 Severability. In the event any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. 8.10 Entire Agreement. This Agreement, together with the Professional Services Agreement and all Exhibits attached hereto and thereto, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 8.11 Counterparts. This Agreement may be executed in counterparts and by the exchange of signatures by facsimile or PDF. [Continued on Next Page] -12- 28 IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed as of the date last written below. JOURNAL TECHNOLOGIES, INC: M Printed Name and Title: Mar�joe Rodriguez, Vice President YAKIMA COUNTY: M Printed Name and Title: Date: Date: - 13- 29 EXHIBIT A LICENSE, MAINTENANCE AND SUPPORT FEES The parties hereby acknowledge that the Licensee, at the time of this Agreement's execution date, is responsible for paying annual fees for the Legacy System of each of the Yakima County Prosecutor's Office and the Yakima County Department of Assigned Counsel in accordance with terms of separate agreements. Such fees, for the Prosecutor's Office Legia021 to December 31- 2021 total $54,540.72 (including $40,053.12 JustWare support; $3,334.58 for JustWare API support; $6,973.08 for JusticeWebview support; and $4,179.94 in sales taxes (at 8.3%)), and for the Department of Assigned Counsel Legacy System annual term March 1, 2021 to February 28, 2022 total $13,883 (including $11,699.36 for JustWare support; $886.92 for JusticeWeb support; $232.74 for Document Imaging Support; and $1,063.98 in sales taxes (at 8.3%)). The parties further acknowledge that, pursuant to terms and conditions of the separate agreements referenced just above relating to the Legacy System, Licensee will continue making such annual support payments, subject to annual, increases not to exceed, in the case of the Yakima County Prosecutor's Office, four (4) percent and, in the case of the Yakima County Department of Assigned Counsel, three (3) percent until, the time of eSerleO'Go Live as that terni is defined in this License Agreement's Section 1.4 ("eSerieO' Go Live"). At the time of eSerieso' Go Live, the total annual License, Maintenance, and Support Fees will be due for the Licensed Software. At the same time, there will be a corresponding pro-rata credit of the Legacy System fees. After the time of eSerieO'Go Live Licensor will no longer provide maintenance or support for the Legacy System, and Licensee will no longer be obligated to pay Licensor fees in relation to the Legacy System, with the exception of any outstanding or unpaid fees that accrued prior to the time of eSerieso' Go Live. For the avoidance of doubt, the different computer software systems that constitute the Licensed Software and that are described in this Exhibit A may become operational for Use by Licensee on different dates. The corresponding pro-rata credit referenced in, this paragraph will be calculated equitably, taking this into account. A. eProsecutor8 1. Licensed Software: eProsecutorO. The annual License, Maintenance and Support Fees include Licensed Software licenses, maintenance updates, upgrades and routine Support as described in the Agreement. 2. Annual eProsecutorO License, Maintenance and Support Fees: $63,800 (and adjusted for any CPI increase* after the first year), which includes: (a) Licensed Software licenses for up to a total of 56 agency Users (i.e., Users identified in clause (a) of the definition of "User" in Section 1.13). - 14- 30 (b) 11 additional licenses (i.e., 20% of agency Users) for unlimited use of the Public Portal by other governmental agencies including those accessing the Licensed Software via interfaces or the Public Portal, (i.e., Users identified in clause (b) of such "User" definition). (c) 6 additional licenses (i.e., 10% of agency Users) for unlimited use of Public Portal by public Users (i.e., Users identified in clause (c) of such "User" definition). For a total of up to 73 User licenses. If the number of agency Users increases or decreases, the annual License, Maintenance and Support Fees will be adjusted pursuant to the pricing table set forth below (and applying the sum of the then current number of eProsecutor® and eDefender® User licenses to determine which User Group row (based on such aggregate User license number) to use in the table below to obtain the correct Per License amount for each User added or subtracted), but subject in all events to a minimum annual License, Maintenance and Support Fee of $50,000: Pricing Table for System User Licenses for Centralized System Annual License, Maintenance and Support Fees User User Per Groups* Licenses License For Group 1-50 50 $ 1,000 $ 50,000 51-100 50 800 40,000 101-200 100 700 70,000 201-500 300 500 150,000 *The actual number of User licenses will be used to determine the annual fee, with 50 licenses being the minimum. Each additional agency User shall require the purchase of 1.3 additional User licenses. *An annual CPI adjustment, not to exceed five (5) percent, will automatically be applied to the annual License, Maintenance and Support Fees for each year of the License Term after the first year. The annual adjustment will be made by multiplying the applicable fees set forth in the pricing table above by a fraction (1) the numerator of which is the index number in the Consumer Price Index (CPI-U) for All Urban Consumers, West Region (1982-84=100), as published by the Bureau of Labor Statistics, for the latest month -15- 31 preceding the annual billing term for which data is available, and (ii) the denominator of which is said index number as of the date of Go Live. B. eDefender° 1. Licensed Software: eDefenderO. The annual License, Maintenance and Support Fees include Licensed Software licenses, maintenance updates, upgrades and routine Support as described in the Agreement. 2. Annual eDefender® License, Maintenance and Support Fees: $36,700 (and adjusted for any CPI increase after the first year), which includes: (a) Licensed Software licenses for up to a total of 32 agency Users (i.e., Users identified in clause (a) of the definition of "User" in Section 1.13). (b) 7 additional licenses (i.e., 20% of agency Users) for unlimited use of the Public Portal by other governmental agencies including those accessing the Licensed Software via interfaces or the Public Portal, (i.e., Users identified in clause (b) of such "User" definition). (c) 3 additional licenses (i.e., 10% of agency Users) for unlimited use of Public Portal by public Users (i.e., Users identified in clause (c) of such "User" definition). For a total of up to 42 User licenses. If the number of agency Users increases or decreases, the annual License, Maintenance and Support Fees will be adjusted pursuant to the pricing table set forth below (and applying the sum of the then current number of eProsecutor® and eDefender® User licenses to determine which User Group row (based on such aggregate User license number) to use in the table below to obtain the correct Per License amount for each User added or subtracted), but subject in all events to a minimum annual License, Maintenance and Support Fee that, when combined with the then current annual License, Maintenance and Support Fee paid by Licensee for one of the Licensed Software herein equals a sum total of at least $50,000: Pricing Table for System User Licenses for Centralized System Annual License, Maintenance and Support Fees User User Per Groups* Licenses License For Group 1-50 50 $ 1,000 $ 50,000 51-100 50 800 40,000 -16- 32 101-200 100 201-500 300 700 70,000 500 150,000 *The actual number of User licenses will be used to determine the annual fee, with 50 licenses being the minimum. Each additional agency User shall require the purchase of 1.3 additional User licenses. An annual CPI adjustment, not to exceed five (5) percent, will automatically be applied to the annual License, Maintenance and Support Fees for each year of the License Term after the first year. The adjustment will be calculated in the same manner as described in the preceding section. By way of example, for the initially planned 73 eProsecutor° and 42 eDefender° User licenses (i.e., 115 total licenses), the calculation below sets forth the total annual license fees for all User licenses and the breakdown for each type of Licensed Software as defined in Section 1.13. Annual Users Licenses License Fees* (+Portal/API) Prosecutor's Office 56 73 $ 63,800 Assigned Counsel 32 42 36,700 88 115 100 500 *Based on the above Pricing Table and the average cost below. The average cost for each license is $874. For example, for the Prosecutor's Office, 73 (licenses) x $874 (average cost per license) equals $63,800 (annual license fee) rounded to the nearest hundred. -17- 33 EXHIBIT B SOURCE CODE ESCROW AGREEMENT License Agreement - Ex B - Innovasafe Escr -18- 34 EXHIBIT C MINIMUM SYSTEM REQUIREMENTS CustomerOn-Premise - Primary si-soo use -19- 35 Customer - - Recovery -20- 36 Data Centers Hardware/Software Manifest • *A:P:PO1 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1 Gb NET) o Ubuntu Linux or Windows o Tomcat 8 o Java 8 o Hazelcast • *APP02 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1 Gb NET) o Ubuntu Linux or Windows o Tomcat 8 o Java 8 o Hazelcast • A:P:P03 - report/testing/training server (4 CPU / 16 GB RAM / 500 GB HDD / 1Gb NET) o Ubuntu Linux or Windows o Tomcat 8 o Java 8 o Jasper • A:P:PO4 - portal server (2 CPU / 8 GB RAM / 100 GB HDD / 1Gb NET) o Ubuntu Linux or Windows o Apache or Nginx • APP05 - app server (4 CPU / 16 GB RAM / 100 GB HDD / 1 Gb NET) o Ubuntu Linux or Windows o Tomcat 8 o Java 8 • APP06 - portal server (2 CPU / 8 GB RAM / 100 GB HDD / 1Gb NET) o Ubuntu Linux or Windows o Apache or Nginx • D:BO1 - db server (8 CPU / 64 GB RAM / 100 GB H:D:D / 1Gb NET) o MS Windows Server 2016 o MS SQL Server 2016 Enterprise edition • DB02 - db server (8 CPU / 64 GB RAM / 100 GB HDD / 1Gb NET) o MS Windows Server 2016 o MS SQL Server 2016 Enterprise edition • STO1 - Document/app server storage device with 0 1 TB for Documents 0 500 GB for app server data 0 100 GB for config mgmt data 0 500 GB for report server data • ST02 - Database storage device with o 1 TB for DB • ST03 - Document/app server storage device with 0 1 TB for Documents 0 500 GB for app server data 0 100 GB for config mgmt data -21- 37 o 500 GB for report server data • ST04 - Database storage device with o 1 TB for DB • Load balancer • Firewalls and VPN devices as required *Additional application and database servers may be added to scale up the solution. 38 Exhibit B Statement of Work (Project Workplan) [Customer Name] and Journal Technologies, Inc. �x 3� �r Journal Journal Technologies, Inc. - 915 E. 1st Street, Los Angeles, CA 90012 39 1 � 1 . � ' . . eProsecutor and eDefender are installed as a functional configuration of Folder Views, Add and Update forms, selected workflows, and Searches. We will work with designated Client project managers, business analysts, subject matter experts, and IT staff to configure eProsecutor and eDefender. The availability of the Client personnel will be a critical factor in timely meeting the project goals herein. Project Phases and Plan We will work together under these general phases to implement the system. A. Project Planning and Initiation During this phase, the project schedule will be solidified, JTI/Client personnel (including staff that will be a part of the Client Help Desk) will be assigned tasks. For on-prem installations, the Client IT department will setup necessary instances of the system for purposes of Configuration, Conversion, Testing and Production etc. Initiating and other documents and tools will be provided, and the foundation for communication and requirements gathering will be established. B. Case Structure The purpose of this phase is to ensure that the Client can capture all of the case data required in the system. • JTI will install the system and demonstrate the system to the Client. • Client and JTI will identify the adequate number of sample cases to enter in the system to identify missing data elements. • Client will enter the cases in the system, identify missing data elements, and report back in a requirements document. • JTI will update the system to capture the missing elements per the requirements document. • Client will verify and report any instances where the system does not meet the requirements specified in the requirements document within 15 workdays. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix any issues and the Client will test again. C. Financial Structure (if'applicable) In this phase, the Client's fines and fees are set-up to distribute according to statute, and for the Client to test to verify that all fines and fees are distributing correctly. • Statute Table o JTI will train Client personnel on statute management. o JTI will provide statute table spreadsheet to Client personnel. o Client will complete statute table spreadsheet. o JTI review statute table spreadsheet with Client, and Client will update as needed. o JTI will replace the baseline system statutes with the Client's statutes. o Client will thereafter maintain its statute table. Journal Technologies, Inc. - 915 E. 1st Street, Los Angeles, CA 90012 40 • Financials o JTI will discuss Imes and fees distribution configuration and the disposition widget with Client to obtain an understanding of the requirements. o Client will provide chart of accounts and written breakdown of assessments. o JTI will document the proposed configuration of financials and receive approval from the Client before configuration. o JTI will load statutes, chart of accounts, and distributions. o JTI will configure assessments and update statutes based on assessments. o Client will test all financial configuration and report back any issues where the configuration does not match the requirements within 15 workdays. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. o JIT will fix any issues and the Client will test again. C) Data Conversion For each database there will be a maximum of three full conversion iterations plus the Go Live iteration. Source System Information The Client will either extract the data from the legacy database and load the data in an interim database structure, that JTI will provide to the Client or to understand the legacy system and its data structure, the Client will provide a legacy system data description document, which will include: • Technical environment (operating system and database platform) • Database type (relational or hierarchical) • Data elements • Data formats and standards • Data volume • Images • Vendor or other relevant contact information • Data dictionaries (ER Diagrams) • Screen/Field Mapping specification. Each screen of the legacy system will be listed and each data element on the screen will be mapped to the corresponding field in the legacy database. Data Mapping • Client, with JTI assistance, will map the data to the target system data elements. • Client, with JTI assistance, will map the documents • Client, with JTI assistance, will determine the logic for financials Data Conversion Development • JTI will develop data conversion logic • JTI will convert data • JTI will complete initial conversion testing Data Conversion Test • JTI and Client will identify a sample set of Cases for which data conversion will be tested. This sample set of cases will not change during the data conversion process. 41 After each conversion, Client will test conversion and within 15 workdays report issues that are not in compliance with the mapping specification and requirements. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. JTI will fix any issues and the Client will test again. If financial conversion is performed, then the Client will verify that remaining balances on invoices are distributed correctly For each interface, Client will provide Interface Specification Document. The document will include all information necessary to develop the interface, including: o File layouts, sample files to be used in testing, existing specification documents, and will assist JTI with the data element mappings between the two systems. o Other requirements such as filtering, throttling, queuing, transaction record retention period, and resending/republishing of messages. o Frequency/trigger information, specification of data transport mechanism requirements, port and firewall rules, and secure networking requirements. o Monitoring and reporting requirements, identification of exception types and processing of transactions, and bandwidth requirements based on expected transaction volumes. • JTI will develop the interface to the requirements in the Interface Specification Document. • Client will test the interface and report issues where the interface does match the requirements specified in the Interface Specification Document within 15 workdays. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix any issues and the client will test again. • There will be a maximum of 3 iterations of testing • Client will provide list of document templates, including samples and specifications. • Client and JTI will configure the document templates. • Client will test configuration meets the requirements and report issues where the configuration does not meet the requirements within 15 workdays. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • Client and JTI will fix any issues and the Client will test again. • There will be a maximum of 3 iterations for testing. • Client will document configuration requirements with JTI's assistance. • JTI and Client will identify changes and will finalize the new workflows. • JTI will configure the new workflows in the system. • Client will test if the configuration meets the requirements and report issues where the configuration does not meet the requirements within 15 workdays. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix any issues and the Client will test again. • There will be a maximum of 3 iterations for testing. 42 • Client will provide a list of searches and reports, including samples, specifications and distrinutions. • JTI and Client will determine the searches and reports needed in the future system. • Client will document the search/report requirements with JTI's assistance. • Client and JTI will configure the searches and reports. • Client will test configured search/reports within 15 workdays and report any issues. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix the issues and the Client will test again. • There will be a maximum of 3 iterations for testing. DJERWROMM • JTI will demonstrate the functionality to the Client's IT staff for evaluation. • Client will provide JTI a set of written use cases that they want the Portal to support. • JTI and Client will determine the use cases to be implemented in the portal. • JTI will implement the necessary Portal configuration to support the use cases. • Once JTI completes the initial configuration, Client will begin acceptance testing against the functionality defined in the use cases. • Client will report issues where the configuration does not match the specification within 15 workdays to JTI and the appropriate configuration changes will be made. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix any issues and the client will test again. • There will be a maximum of 3 iterations for testing. J) Full system testing • Client and JTI will develop a testing plan. • Client will conduct full system testing per the testing plan report issues where the configuration does not match the specification within 15 workdays to JTI and appropriate configuration changes will be made. If no issues are reported within 15 days, then the system configuration will be deemed to be accepted. • JTI will fix any issues and the client will test again. • There will be a maximum of 3 iterations for testing. • Client and JTI will determine the deployment plan and schedule. • Client, with JTI's assistance, will develop a training plan. • Client will deliver end user training. • JTI will create a deployment plan with Client's assistance. • Prior to the go -live Client will sign a formal acceptance that the system configurations fulfill its requirements and will pay fees outlined in the Professional Services Agreement and License, Maintenance and Support Agreement. • Final conversion and deployment will bring the system live in the production environment