HomeMy WebLinkAboutAlcohol Monitoring Systems Inc1241 West Mineral Avenue, Suite 200
Littleton, CO S0120
MASTER AGENCY AGREEMENT
AGENCY: MASON COUNTY JAIL TELEPHONE: 360-427-9670 X 172
ADDRESS: 322 North 3rd St.
INITIAL CONTRACT
Shelton, WA 98584 TERM: 36 Months
This AGENCY PRODUCTS AND SERVICES AGREEMENT (the "Agreement"), is entered into as of the Effective Date by and
between ALCOHOL MONITORING SYSTEMS, INC. ("AMS"), a Delaware corporation located at 1241 West Mineral Avenue,
Suite 200, Littleton, Cobrado 80120, and the Agency listed above. This Agreement incorporates by reference any and all
Schedules executed by the parties. Capitalized terms not otherwise defined in this Agreement are those as defined in the
attached Schedule(s). Should there be a conflict between the terms in this Agreement and those of any Schedule, the terms in
the Schedule will prevail. The effective date of the Agreement is the date last signed by AMS (Effective Date").
1 GENERAL SCOPE OF AGREEMENT. AMS sells and rents Equipment and provides supporting Services specific to
monitoring Clients who are required to or opt to wear such Equipment AMS desires to sell or rent and Agency desires to
order such Equipment and the supporting Services as specified in this Agreement and the attached Schedules in the
Territory described on the applicable Schedule.
2 DEFINITIONS
"Clients" means individuals who are required or choose to wear the Equipment.
"Customer" means any governmental agency customer of Partner.
"Effective Date" means the date this Agreement is signed by AMS.
"Equipment" means the hardware identified in the applicable Schedule.
"Monitoring Services" means the remote collection, compilation and reporting of data from the Equipment.
"Monitoring Software" means AMS' proprietary, web -based software applications, depending on the Equipment or Service
contracted for, which track and store Client data and other features as may be added from time to time.
"Parts" means peripheral hardware necessary for the support of the Equipment such as but not limited, to batteries, straps
and back -plates.
"Products" means collectively the Equipment and the Parts.
"Rental Equipment" means Equipment rented by AMS to Agency.
"RMA" means a Return Material Authorization issued by AMS.
"Services" means collectively the; (i) the Monitoring Services; (ir) provision of training and certification necessary for Partner
to use Products; (li) provision of technical support and telephone assistance; (iii) scheduled Equipment (vi) maintenance;
(iv) disaster recovery and backup services for Client data stored using the Monitoring Software; and (v) provision of such
other Services and support functions as may be agreed to in writing by the parties and made part of this Agreement.
"Territory" means the geographic area type as defined on each Schedule in which Agency may provide the Products and
Services to Clients.
"Third Party Contractor" means Agency's third party subcontractors to whom Agency is subcontracting any of Agency's
work or responsibilities under this Agreement.
3 GENERAL BUSINESS TERMS
3.1 Payment Terms.
3.1.1 Purchased Products. Products will be invoiced at the time of shipment. The price of the Products does not
include applicable taxes and is due and payable in U.S. dollars within ten (10) days of date of invoice.
3.1.2 Rental Equipment. Rental Equipment Fees will be invoiced monthly to Agency by AMS based on the specific
pricing option for the Rental Equipment on or before the tenth (10t) day of each month and shall be paid by Agency to AMS
within thirty (30) days from the date of such invoice.
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3.1.3 Monitoring Service and Other Fees. Service fees will be invoiced by AMS on a monthly basis as incurred
and shall be paid by Agency within thirty (30) days from the date of such invoice. Other fees include, but are not limited to, fees
for the following: Court appearances whereby AMS is requested by Agency to be a witness in a court case; manual check -in for
inactive Equipment; repair or replacement not covered by the Maintenance and Repair Policy under Section 7 and Equipment
returned to AMS without an RMA. Unless set forth on an applicable Schedule, fees will be charged at AMS' then prevailing rates.
3.1.4 Currency: Invoiced Taxes. All fees are payable in U.S. Dollars. In addition, Agency is responsible for the
timely payment of all taxes invoiced by AMS related to the purchase price for Products, Rental Equipment Fees, Services and
any other fees set forth on the Schedule(s).
3.2. Orderings Freight Terms Order Cancellation and Reschedule.
3.2.1 Orders. AMS may provide Agency with AMS' standard order form to use for when Agency places orders
under this Agreement. Agency may use its own purchase order form in addition to the AMS order form. All terms on any Agency
purchase order shall not alter or amend the terms of this Agreement and any additional or varying terms contained in such
instrument are expressly rejected.
3.2.2 Freight Terms. Products ordered by Agency shall be shipped to Agency's designated facility, AMS paying
ground freight, and AMS bearing the risk of loss of damage until Products are delivered to Agency's dock, at which time any
visible damage to the outermost packaging must be noted on the Bill of Lading. AMS shall determine the type of packaging,
mode of transportation for all shipments including for returns. Any returns must be accompanied by an RMA. Orders expedited
at Agency's request will be shipped FOB Origin, with all freight costs to be paid by the Agency.
3.2.3 Order Cancellation and Reschedule. Orders for Products, once accepted by AMS, are non -cancelable, and
Products are non -returnable, except in accordance with the Maintenance and Repair Policy set forth in this Agreement or the
terms, if any, in the applicable Schedule. Upon AMS agreement, Agency can reschedule orders one time upon thirty (30) days
written notice prior to the shipment date. Any such rescheduled delivery date must be within thirty (30 days of the original delivery
date.
3.3 Taxes. Agency shall be solely responsible for all taxes related to Products or Services provided to it by AMS under
this Agreement including, by way of example and not limitation, sales, use, property, excise, value added, and gross receipts
irrespective of whether the Products are purchased or rented. If Agency is exempt from taxes of any kind Agency will provide
appropriate exemption documentation for all such taxes applicable to the transactions contemplated by this Agreement.
3.4 Failure to Make Payments and Suspension of Services. Late paid invoices will be subject to interest, accruing from
the due date at the rate of either one -and one-half percent (1.5%) per month or the highest rate specified by applicable statute,
whichever is lower. In addition, if Agency fails to pay any amount when due under this Agreement, AMS will provide written
notice to Agency of such failure. If Agency does not pay any outstanding amount due within five (5) business days of the date
of such notice, AMS may do any of the following; (1) notify any Customers of the payment delinquency; (ii) reject orders from
Agency for additional Products or withhold delivery of Products already ordered but not yet shipped; (ill) suspend access to the
Services until Agency pays all outstanding amounts in full; and (iv) proceed with termination of this Agreement and any
applicable Schedules in accordance with the terms in Section 9.3 of this Agreement.
3.5 Title to Equipment; Rental Equipment.
3.5.1 Title to Equipment. Title to purchase Equipment transfers to Agency upon delivery to the freight carrier. Title
to any Rental Equipment shall remain with AMS, unless such Equipment is later purchased by the Agency.
3.5.2 Rental Equipment. Agency may rent Equipmentfrom AMS in quantities agreed to by the parties. Agency will
not encumber or dispose of any Rental Equipment. Agency will inventory Rental Equipment in a location that is used and
operated by Agency authorized personnel only. All Rental Equipment maintained in Agency's inventory location will be handled
in accordance with industry standard practices for prevention of loss or physical damage, including that which may be caused
by electronic static discharge and environmental concems. Agency will be responsible to and reimburse AMS for all toss to AMS
resulting from damage, theft, destruction or any other loss whatsoever of Rental Equipment received by Agency. In the event of
the loss or damage to any of the Rental Equipment, Agency agrees to pay AMS the Replacement Fee amounts specified on the
relevant Schedule. AMS reserves the right, at its sole option, to reduce Agency's inventory of Rental Equipment, if Agency does
not remit the Replacement Fee within thirty (30) days from the date of receipt of AMS' invoice. Agency will cooperate with AMS
in the preparation and filing of any documents considered necessary by AMS to preserve AMS' tiife and ownership rights to the
Rental Equipment Upon reasonable notice, AMS reserves the right to audit Rental Equipment inventory on a quarterly basis.
At all times Throughout the Term, Agency will procure and maintain risk insurance to specifically cover loss or damage to Rental
Equipment while in Agency's possession up to the equivalent of the Replacement Fee for the Rental Equipment, At the end of
the rental period, Agency must obtain an RMA and ship returned Rental Equipment to AMS with freight to be paid by Agency
and risk of loss or damage to remain with Agency until delivery to AMS.
4 USE RESTRICTIONS; FIRMWARE LICENSE; OWNERSHIP; LIMITED LICENSE; DISCLAIMER
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4.1 Use Restrictions; No Modification. Agency shall not do any of the following acts: (i) wilfully tamper with the security
of the Monitoring Software or Equipment (ii) access data on the Monitoring Software not intended for Agency; (iii) log into an
unauthorized server or account on the Monitoring Software; (iv) attempt to probe, scan or test the vulnerability of the Monitoring
Software or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of
Monitoring Software unusable. (vi) reverse engineer, de -compile, disassemble or otherwise attempt to discover the source
code or underlying ideas or algorithms of the Monitoring Software; (vii) modify, translate, or create derivative works based on
the Monitoring Software; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit
the Monitoring Software or make the Monitoring Software available to a third party other than as contemplated in this
Agreement; (ix) use the Monitoring Software for timesharing or service bureau purposes or otherwise for the benefit of a third
party; (x) publish or disclose to third parties any evaluation of the Monitoring Software without AMS' or its third party supplier's
prior written consent; (xi) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on
the Monitoring Software; or (xii) create any link to the Monitoring Software or frame or mirror any content contained or accessible
from the Monitoring Software. Pxoept as expressly provided in this Agreement, no right or license is granted hereunder, by
implication, estoppel or otherwise.
4 2 Firmware License. The Products contain firmware developed and owned by AMS or its third party supplier. Agency
is hereby granted a limited, non-exclusive, non -transferable, royalty -free license, for the Tenn, as defined in Section 9.1 below
to use the firmware in the Products. Use of the Parts may be subject to third party license agreements. AMS and its third party
suppliers shall retain all rights to the firmware contained in the Products. Any applicable license shall be deemed fo be in effect
upon delivery of the Products.
4.3 Ownership: Limited License. Agency acknowledges that ail right, title and 'Merest in any software or firmware
provided under this Agreement and all modifications and enhancements thereof, including all rights under copyright and patent
and other intellectual property rights, belong to and are retained solely by AMS or its third party suppliers. This Agreement
provides Agency and its Customers only the rights expressly granted in this Agreement. Further, if Agency suggests any new
features or functionality for the Equipment, Monitoring Software or Parts that AMS its third party suppliers subsequently
incorporate into the Products or Monitoring Software, any such new features or functionality shall be the sole and exclusive
property of AMS or its third party suppliers and shall be free from any confidentiality restrictions that might otherwise be imposed
upon AMS pursuant to Section 8 below
4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE EXTENT ALLOWED BY APPLICABLE
LAW, AMS DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. AMS
SHALL HAVE NO LIABILITY WHATSOEVER AS A RESULT OF THE EQUIPMENT BEING LOCATED IN AN AREA NOT
COVERED BY APPROPRIATE WIRELESS COVERAGE (IF APPLICABLE), OR IF THE EQUIPMENT FAILS TO
ESTABLISH A CONNECTION WITH THE MONITORING SOFTWARE OR THE MONITORING SERVICES ARE DISABLED
DUE TO NETWORK RELATED ISSUES. Without limiting the express warranties set forth in this Agreement, AMS does not
warrant that the Services will meet Agency's requirements or that access to and use of the Monitoring Services will be
uninterrupted or free of errors. AMS cannot and does not guarantee the privacy, security, authenticity and non -corruption of
any information transmitted through, or stored in any system connected to, the Internet. Neither AMS nor its third party suppliers
shall be responsible for any delays, errors, failures to perform, or disruptions in the Monitoring Services caused by or resulting
from any act, omission or condition beyond AMS' or its third party supplier's reasonable control.
5 SERVICE TERMS
5.1 Service Scope. AMS will provide Agency with the Services and support functions per the terms in this Agreement.
Unless otherwise expressly agreed to by the parties, AMS is not obligated to and will not provide Services for any Equipment
not obtained directly from AMS.
5.2 Monitoring Service Availability. AMS shall use commercially reasonable efforts to make the Monitoring Services
available for twenty-four (24) hours a day, seven (7) days a week. Agency agrees that from time to time the Monitoring Services
may be inaccessible or inoperable for reasons beyond the reasonable control of AMS, including: (i) equipment malfunctions; (ii)
periodic maintenance procedures or repairs which AMS may undertake; or (iii) interruption or failure of telecommunication or
digital transmission finks, hostile network attacks, network congestion or other similar failures. Agency will not be entitled to any
setoff, discount, refund or other credit as a result of unavailability of the Monitoring Services unless expressly provided in this
Agreement...
5.3 Monitoring Software Security. AMS shall use commercially reasonable efforts to prevent unauthorized access to
restric ed areas of the Monitoring Software and any databases or other sensitive material. AMS reserves the right to deactivate
or suspend access to the Monitoring Software by a user if such user is found or reasonably suspected to be using his/her access
to facilitate illegal, abusive or unethical activities. Such activities include pornography, obscenity, violations of law or privacy,
hacking, computer viruses, or any harassing or harmful materials or uses. Agency agrees to hold AMS harmless from any claims
resulting from such use.
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5.4 Access to Monitoring Software. Agency agrees to limit requests for access to the Monitoring Software to Agency
personnel who are authorized to enroll Clients, set notification options and otherwise access the information residing within the
Monitoring Software. AMS will provide to Agency user names, passwords and other information necessary to access the
Monitoring Software. Agency is responsible for keeping its user names and passwords protected as Confidential Information as
defined in and per the terms of Section 8 of this Agreement and for any communications or transactions made using its user
names and passwords. Agency personnel are responsible for changing their respective user names and passwords if they
believe that either have been stolen or might otherwise be misused. Agency shalt provide written notice to AMS within ten (10)
days if any previously authorized personnel status changes such that access should no longer be allowed including but not limited
to termination or resignation of any Agency personnel who had access to the Monitoring Software. These requirements are subject
to change based on periodic review by AMS of its information security needs.
5.5 Equipment and Utilities. Agency is responsible and shall bear the costs associated with providing and maintaining
Internet access and all necessary telecommunications equipment, software and other materials necessary for accessing the
Monitoring Software. Agency agrees to notify AMS of any changes in the foregoing, including any system configuration changes
or any hardware or software upgrades, which may affect Agency's ability to access the Monitoring Software.
5.6 Equipment Maintenance, AMS and Agency shall establish a routine maintenance program designed to keep the
Equipment in good repair, working order and condition in accordance with AMS' then -published specifications, including
establishing a schedule that will ensure the return of the Equipment to AMS at approximately annual intervals. Unless otherwise
agreed, Agency shall be responsible for collecting any Equipment from Clients that is scheduled for maintenance and (ii) shipping
it to AMS having first obtained a RMA number from AMS. Such maintenance program shall not cover Equipment damaged or
rendered inoperative for any cause not due to defects covered by the service and repair policy in the Agreement. Agency shall
not, without prior approval from AMS, send to AMS for maintenance any Equipment not then scheduled for maintenance.
Equipment returned to AMS for any reason, including rental returns, damages, and scheduled repairs, that are not accompanied
with a properly issued RMA may be assessed a returned administrative charge.
5.7 Training and Certification. AMS will provide Agency personnel with on-line, training and certification in the use of the
Products at AMS' current training rates as quoted by AMS to Agency.
5.8 Additional or Changes to Services. From time -to -time, AMS may revise the scope of the Services, subcontract or
delegate to a th rd party some or all of the provision of the Services, or make substitutions, additions, modifications and
improvements to Monitoring Software and/or Services. Additionally, as a part of these changed Services, AMS also may
determine, at its sole option, to discontinue providing Services hereunder for specific versions of the Products upon a minimum
of one (1) year prior notice to Agency.
6. AGENCY RESPONSIBLITI ES.
6.1 Equipment Agency shall be solely responsible for the management and supervision of the Equipment and any
personnel or Clients using the Equipment and the Monitoring Software, as well as the selection and implementation of the Client
enrollment, monitoring and notification options provided for the Monitoring Software. For avoidance of doubt, Agency is solely
responsible for the management of the Clients, including the response to any Client violations reported by AMS or its third party
providers. AMS is not responsible or liable for Agency's failure to properly fu[ill its foregoing responsibilities.
6.2 Agreements with Clients. Agency shall obtain the necessary written consent from any Client authorizing the tracking
and/or monitoring of the Equipment by AMS or its subcontractors. Agency is solely responsible for notifying Clients in writing of
any restrictions or limitations on the use of the Equipment of which it is made aware by AMS. These mandatory restrictions and
prohibitions to be communicated to Clients are available on the Monitoring Software platform in the form of a "Participant
Agreement". This Participant Agreement is not intended to cover all possible requirements of the relationship between Agency
and its Clients and should be reviewed by Agency's legal advisors prior to use. Agency agrees to indemnify and hold AMS
harmless from any claim resulting from the failure of Agency to notify Clients of the restrictions and prohibitions on use of the
Equipment and to obtain Client's written consent authorizing the tracking and or monitoring of the Equipment by AMS or its
subcontractors.
6.3 Third Party Call CenterSunport. If Agency determines that it will establish and use a third party call center to monitor
and receive alerts from the Monitoring Software, then Agency will notify AMS and shall ensure that personnel certified by AMS
will operate the call center. Agency shall be responsible for all acts and omissions of the third party call center personnel granted
access to Monitoring Software as if they were employees of Agency.
7 MAINTENANCE AND REPAIR
7.1 Maintenance and Repair Policy. Provided Agency; (i) pays to AMS the Service fee(s) for Equipment and (ii) installs
the Equipment in accordance with AMS' instructions, for all Equipment manufactured by and ordered directly from AMS, AMS
will provide the necessary maintenance and repair for such Equipment at AMS' expense to enable it to function with the
Monitoring Software in a manner substantially in accordance with the performance parameters specified in the documentation
for the specific Equipment. For any Parts manufactured by third parties and sold by AMS, any service or repair commitment for
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that Part shall be solely as described in the relevant Schedule for that Part. Products returned to AMS under warranty must be
returned within thirty (30) days of issuance of the RMA. Agency must returned damaged or defective Products to AMS, freight
prepaid, and Agency is responsible for the risk of loss or damage during shipment for both shipment of damaged Product units
back to AMS and the c st of return shipment of replaced or repaired Products back to Agency.
7.2 Maintenance and Repair Policy Exclusions. The above policy does not cover Equipment that is obtained from
sources outside of AMS or is defective due to (i) improper use or installation, damage, accident, abuse or alteration; (ii) failure
to comply with the operating and maintenance instructions set forth in the documentation for the specific Equipment; (iii)servicing
of the Equipment by anyone not authorized by AMS; (iv) failure of Agency to obtain reasonable and nerPssary maintenance of
the Equipment as contemplated under the Agreement; (v) use of Parts in the repair of the Equipment that have not been
approved in writing by AMS for use in the Equipment; or (vi) use in connection with a third party product other than that as
approved in writing by AMS.
7.3 Sole Remedyy, In the event of a breach of the above Maintenance and Repair policy, Agency's sole remedy shall be,
at AMS' option, the repair or replacement of the defective Equipment or Part by AMS.
7.4 Product Changes: Retrofit Activities. AMS shall have the right at any time (i) to change the design or specifications
of any Equipment without notice and without obligation to make the same or any similar change on any Equipment previously
purchased by Agency; and (ii) to retrofit or replace (during routine maintenance or otherwise) any Equipment to incorporate any
upgrades or updates then available. However, nothing herein shall obligate AMS to provide Agency with all new models of
Equipment at no additional cost, and AMS may charge a fee for Equipment model upgrades in certain circumstances including,
but not limited to, a new line of products ora change in underlying technology or technological advancements requiring significant
changes to an existing Equipment model. Regarding the foregoing, in any case where AMS charges a fee for an Equipment
model upgrade, it will provide no less than six (6) months' notice to Agency prior o discontinuing the sale or rental of the
discontinued Equipment model. In addition, AMS will continue to offer repair and/or eplacement services for the discontinued
Equipment models under the Maintenance and Repair Policy referenced in this Section 7 for no less than three (3) years after
the date of notice of Equipment discontinuation as provided by AMS to Agency.
8 CONFIDENTIAL INFORMATION
8.1 Confidential Information. In connection with this Agreement a party ("Discloser') may furnish to the other party
("Recipient") software, user and training manuals, data, Client information, designs, drawings, tracings, plans, layouts,
specifications, samples, equipment and other information provided by or on behalf of Discloser to Recipient, that should
reasonably have been understood by Recipient, because of (i) legends or other markings, or (ii) the circumstance of disclosure
or the nature of the information itself, to be proprietary and confidential to Discloser or to a third party ("Confidential Information").
Confidential Information specifically includes all information accessed by Agency via the Monitoring Software. Confidential
Information may be disclosed in written or other tangible form (including digital or other electronic media) or by oral, visual or
other means. Each party agr es not to disclose to the other party any confidential or proprietary information of third parties
unless authorized to do so, The parties each agree to treat this Agreement, including all exhibits hereto, as Confidential
Information of each party.
8.2 Nondisclosure. It is agreed that, after receipt of Confidential Information of the other party, Recipient shalt: (i) restrict
the dissemination of such Confidential Information to those employees who need to use the Confidential Information in the
performance of this Agreement, and (ii) to use no less than a reasonable standard of,care in safeguarding against unauthorized
disclosure of such Confidential Information. Recipient agrees to have an appropriate nondisclosure agreement signed by each
of its employees, agents and contractors who may be exposed to Discloser's Confidential Information.
8,3 Exceptions from Confidential Information. Confidential Information shall not include information that: (i) is or
becomes part of the public domain without violation of this Agreement by Recipient, (ii) is already in Recipient's possession free
of any restriction on use or disclosure (iii) becomes available to Recipient from a third party provided that such party was free
from restriction on disclosure of the information or (iv) has been independently developed by Recipient.
8.4 Required Disclosures. If Recipient is required by legal proceeding discovery request, "open records" or equivalent
request, Investigative demand, subpoena, court or government order to disclose Confidential Information, Recipient may
disclose such Confidential Information provided that: (}the disclosure is limited to the extent and purpose legallyrequired; and (ii)
prior to any disclosure, Recipient shall immediately notify Discloser in writing of the existence, terms and conditions of the
required disclosure and, at Disclosers request and expense, cooperate in obtaining a protective order or other reliable assurance
that confidential treatment wilt be accorded the Confidential information.
9 TERM AND TERMINATION
9.1 Term. This Agreement shall commence from the Effective Date and shall continue for the period specified on page
one (the "Initial Term") unless earlier terminated in accordance with the provisions of this Agreement. After the Initial Term
expires this Agreement can be extended by mutual written agreement of the parities for additional terms (each a "Renewal
Term"). The Initial Term, together with any Renewal Term, is referred to as the 'Term".
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9.2 Termination for Convenience. This Agreement may be terminated for convenience at any time upon thirty (30) days
prior written notice by one partyto the other.
9.3 Termination for Breach. Either party may terminate this Agreement; (I) if a voluntary or involuntary petition in
bankruptcy, receivership, assignment for the benefit of creditors or other similar insolvency action is filed or levied against the
other party and not discharged within sixty (60) days after the fling or levied thereof; (il) by written notice by the non -breaching
party, if the other party fails to cure any nonpayment of money owed to the other party under this Agreement within thirty (30)
days of such notice; (r i) by written notice by the non -breaching party, if the other party fails to cure any material breach of this
Agreement (other than non -payments described in clause (ii) above) within sixty (60) days of such notice (it is understood;
however, that a violation of law, breach of confidentiality or misuse of access grants that cannot be cured shall be grounds for
immediate termination); or (iv) immediately, by written notice by the non -breaching party, upon the second commission of a
previously remedied material breach under clause (iii) above.
9.4 Termination for Non -Appropriation of Funds. In the event that Agency is unable to continue to make payments
required hereunder due to a failure of the responsible governmental entity to make available funding to the level and in the
amount required to remain In compliance with Agency's financial obligations; hereunder, then upon the occurrence of such a
non -appropriation event and on the date that the requisite funding ceases to be available to the Agency, Agency may terminate
this Agreement, without further financial obligation or liability to AMS other than to pay for Products and Services previously
delivered to Agency or performed for Agency.
9.5 Survival. Tnis Section, any indemnity obligations of either party, and Sections 4.3, 4.4, 6, 8, 11, 12.1 and 12.2 shall
survive termination of this Agreement.
10 EFFECT OF TERMINATION
10.1 Payments; Return of Equipment. Upon any termination of this Agreement or any Schedule incorporated by reference
herein, Agency shall provide AMS with all outstanding payments due and, within ten (10) days of the termination, return to AMS
all Equipment not owned by Agency or, if so directed by AMS, to AMS' third party supplier. Upon termination of this Agreement,
each party shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control within
thirty (30) days of termination except for backup and archived Client data.
11 ALLOCATION OF LIABILITY
Each party agrees to the extent allowed by law, to defend, indemnity and hold the other party and ifs officers, directors,
shareholders, employees and third party suppliers (collectively, the "Indemnified Parties") harmless from and against all losses,
damages and expenses, including reasonable attorneys' fees, in connection with any claims against the Indemnified Parties
arising out of or related to the negligence or willful misconduct of the other parry's employees or agents. Further, Agency shall
indemnify and hold harmless AMS and its officers, directors, shareholders, employees and third party suppliers against the acts
of any Client assigned to wear the Equipment, including claims for personal, injury property damage or death. An indemnifying
party shall have the foregoing obligation only if the other party provides: (i) a prompt written request for indemnification and
defense in such claim or action; (ii) sole control of the defense and settlement thereof; and (iii) all available information,
assistance and authority reasonably necessary to settle and defend any such claim or action.
EXCEPT AS ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL A PARTY TO THIS AGREEMENT
BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY
OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, PROFITS,
DATA, (OR USE THEREOF), OR BUSINESS INTERRUPTION ARISING OUT OF ANY ACTS OR FAILURES TO ACT,
WHETHER SUCH DAMAGES ARE LABELED IN STRICT LIABILITY, TORT, CONTRACT OR OTHERWISE, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AMS HAS NO RESPONSIBILITY OR LIABILITY FOR ACTS THAT MAY BE COMMITTED BY INDIVIDUALS WHILE THEY
ARE CLIENTS. EXCEPT AS LIMITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL THE TOTAL LIABILITY
OF AMS FOR ALL CLAIMS OF ANY KIND WHATSOEVER, AND UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL
AMOUNT PAID BY AGENCY TO AMS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EARLIEST EVENT
GIVING RISE TO THE CLAIM.
The limitations set forth in this Section 11 shall apply even if any exclusive remedy in this Agreement fails of its essential purpose.
The allocation of liability in this Section 11 represents the agreed and bargained for understanding of the parties and each part's
compensation hereunder reflects such allocations.
12 MISCELLANEOUS PROVISIONS
12.1 Applicable Law. This Agreement shall be govemed by and construed in accordance with the laws of the State of
Colorado without regard to its conflicts of taws provisions. AMS and Agency hereby irrevocably consent to jurisdiction, service
of process and venue in the City and County of Denver, Colorado.
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12.2 Arbitration. Disputes arising under this Agreement that cannot be resolved informally by the parties through good faith
negotiations shall be resolved by arbitration before a sole arbitrator appointed and operating pursuant to the Federal Arbitration
Act and Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in the City and
County of Denver, Colorado. The written decision of the arbitrator shall be final, binding and convertible to a court
judgment in any appropriate jurisdiction. Each party shall bear its own expenses with respect to such arbitration and shall
share equally in the expenses of the arbitrator and the fees of the American Arbitration Association.
12 3 Injunctive Relief. Notwithstanding anything above to the contrary, either party at any time may apply to a court having
jurisdiction thereof for a temporary restraining order, preliminary injunction or other appropriate order where such relief may be
necessary to protect its interests (including, without limitation, any breach of the obligations under Sections 4 and/or 8), without
any showing or proving of any actual damages and without posting a bond or other security.
12.4 Non -Discrimination and Business Code of Conduct
12.4.1 Non-discrimination. To the extent not exempt, the parties shall abide by the requirements of 41 CFR
§§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based
on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals
based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these
regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance
in employment individuals without regard to race color, religion, sex, sexual orientation, gender identity, national
origin, protected veteran status or disability.
12.5 Records Retention and Audit Rights. Agency will retain all records relating to the Agreement or any Schedule for a
period of seven (7) years after termination of the Agreement or applicable Schedule. During the Term, upon ten (10) days prior
written notice, and not more than once per year (unless circumstances warrant additional audits as described below), AMS may
audit Agency's procedures and records that relate to the obligations under this Agreement. Notwithstanding the foregoing, the
parties agree that MIS may conduct an audit at any time, in the event of (i) audits required by governmental or regulatory
authorities or (ii) investigations of a breach of this Agreement.
12.6 Assignment, Except as expressing permitted herein, neither party may transfer or assign this Agreement, in whole or
in part, without the written consent of the other party and arty such attempt at transfer or assignment shall be void.
Notwithstanding the foregoing, AMS may transfer or assign thls Agreement to an entity that is an affiliate of AMS or, in the event
of a sale of all or substantially all of its assets or equity, each without the consent of Agency. This Agreement shall extend to
and be binding upon any successors and permitted assigns of the parties.
12.7 No Agency: Independent Contractor. The use of the term "Agency" in this Agreement is solely for convenience and
is not intended to make either party an agent of the other party. This Agreement does not constitute and shall not be construed
as constituting an agency, distributorship or joint venture business arrangement between the parties, AMS is to be and shall
remain an independent contractor with respect to Products provided or Services performed under this Agreement. AMS may
subcontract the performance of any of its obligations under this Agreement. However, such subcontracting will not relieve AMS
of its obligations under this Agreement.
12.8 Force Maieure. Except for the obrgation to make payments as provided herein, neither party shall be in default under
this Agreement by reason of its delay in the performance of, or failure to perform, any of its obligations under this Agreement, if,
and to the extent that, such delay or failure is caused by strikes, wars, natural disasters, acts of the public enemy, government
restrictions or acts of terrorism Upon claiming any excuse or delay under this Section, such party shall promptly notify the other
party use reasonable efforts to remove the cause and continue its performance under this Agreement whenever the cause is
removed.
12.9 Notices. All notices, requests, demands or communications required or permitted hereunder shall be in writing,
delivered personally or by electronic mail, facsimile or overnight delivery service at the respective addresses set forth herein (or
at such other addresses as shall be given in writing by either party to the other). All notices, requests, demands or
communications shall be deemed effective upon receipt for personal delivery, or on the business day following the date of
sending by electronic mail, facsimile or overnight delivery service.
12.10 Waiver: Severability. Any waiver of any default or breach of this Agreement shall be effective only if in writing and
signed by an authorized representative of the party providing the waiver. No such waiver shall be deemed to be a waiver of any
other or subsequent breach or default. If any provision of this Agreement is held to be invalid, the remaining portions of this
Agreement shall remain in full force.
12.11 Publicity. AMS shall have the right to issue news releases, press releases or other communications regarding this
Agreement to potential investors and customers. However, MIS shall not disclose any names of Clients without the prior written
approval of the Client and Agency.
12.12 Headings. Headings used in this Agreement are for convenience of reference only and shall not be construed as
altering the meaning of this Agreement or arty of its parts.
12.13 Execution. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument. The parties agree that
signatures on this Agreement, as well as any other documents to be executed under this Agreement, may be delivered by
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facsimile or email and signed using a portable document format or an electronic signature in lieu of an original signature, and
the parties agree to treat such signatures as original signatures and agree to be bound by this provision.
12.14 Entire Agreement. This Agreement constitutes the entire understanding of the parties and supersedes all prior or
contemporaneous written and oral agreements, representations or negotiations with respect to the subject matter hereof. This
Agreement may not be modified or amended except in writing and signed by both parties.
IN WITNESS WHEREOF, the parties' hereto have caused this Agreement to be executed by their dully authorized
representatives as of the date last signed by AMS.
MASON COUNTY JAIL ALCOHOL MONITORING SYSTEMS, INC.
By; /' `% / ' " "\ By: Yo"t'L w�°--y�',
Name: Randy Neatherlin Name: Lou Sugo '--d'
Title: Chairman Title: Vice President— Sales and Marketing
Date: 51 (l 'Zo 1$
By:
Name:
Title:
Date:
Attest:
Clerk of Agency
Signed by AMS and effective as of:
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PRODUCT AND SERVICE SCHEDULE
TO
MASTER AGENCY AGREEMENT
AGENCY: MASON COUNTY JAIL
This PRODUCT AND SERVICES SCHEDULE ("Schedule") to the MASTER AGENCY AGREEMENT (the "Agreement') is
entered into on the date last signed by AMS by and between Alcohol Monitoring Systems, Inc. ("AMS") and the Agency identified
above. This Schedule is incorporated by reference into the Agreement effective executed by the parties.
Unless otherwise defined herein, capitalized terns in this Schedule are those as defined in the Agreement. This Schedule is
effective on the date signed by AMS.
AMS hereby desires to provide Agency with the Equipment and sell the Agency supporting Services and Agency desires to
order such Equipment and purchase such Services as defined in this Schedule during the Term.
1- DEFINITIONS
a. "Active Equipment" means any Equipment unit actively using the Monitoring Software.
b. "Additional Monitoring Services" means, if Agency is purchasing such services, the additional Monitoring
Services provided by AMS and as further defined on Attachment 1, at the pricing set forth in Attachment 1, Schedule
A
c. "CAM Equipment` means, if applicable per the pricing table below, an ankTe bracelet device That continuousiy
monitors alcohol levels and if configured as a kit, the base station.
d. "Service Fee" as used on the Schedule(s) means the Monitoring Service fee charged by AMS to Agency per
each Equipment unit, per day using the Monitoring Services.
e. "Equipment" means collectively the GPS equipment, CAM equipment, various base stations, the Remote
Breath Analyzer, the Radio Frequency House Arrest bracelet, Wireless Multi -connect devices and various base stations
if sold separately rather than in kit configuration.
f. "High Priority Alerts" are Equipment generated alerts that signal; (f) the Client violated the
exclusion/inclusion zone(s), or failed to return to or leaves without proper authorization an assigned location; (Ft) device
and/or strap tampering; (iii) evidence of communication and/or location failure; or (Iv) any other alert types required by
Agency.
g. "GPS Equipment" means, if applicable per the pricing table below, a device that monitors Clients
geophysical location based on exclusion and inclusion zones and includes the base station if configured as a kit.
h. "House Arrest Equipment" means, if applicable per the pricing table below, an electronic ankle device that
monitors Client's adherence to a home arrest curfew schedule and includes the base station if configured as a kit.
i. "Remote Breath Equipment" means, if applicable per the pricing table below, a device that measures alcohol
levels in the breath and may have facial recognition capabilities.
j. "SLA" means the Service Level Agreement Information document, which is aftached to this Schedule as
Attachment 1 and is only applicable if Agency is purchasing or renting Equipment with Additional Monitoring Services.
Specific SLA protocols will be agreed to in a separate SLA document signed by Agency.
k. "Wireless Base Station" means, if applicable per the pricing table below, an AMS device that uses cellular
transmission to connect with another device, such as a GPS or CAM bracelet.
I. "Wireless Multi -connect Device" means, if applicable per the pricing table below, a third -party wireless
device that connects multiple electronic hardware devices, such a CAM bracelet to a base station.
2. TERRITORY: Mason County in the State of Washington
1
Agency Product and Services Schedule Purchase Only
Version 20180125
Remote Breath
Equipment
1 - 49
$2.50
$4.00
$6.50
$1.48
50 - 149
$2.16
$3.84
$6.00
$1.45
1+
$0.20
$1.00
1 20
NA
CAM/House Arrest
Wireless Base
Station
Standalone
Note 1: If renting the Wireless Base Station kitted with CAM or House Arrest Equipment, the Service
be invoiced at the amount for CAM or House Arrest Kit listed above, plus the Service Fee amount listed
for the CAM/House Arrest Wireless Base station as if it were rented as standalone unit.
Fee will
above
5 ADDITIONAL SERVICES
Training: AMS will provide Agency personnel with training in the use of the Products. Any such training will be at no
charge to Agency.
Ethernet Communication: $0.50 per Equipment unit, per day
Calibration Kits and Associated Consumables: AMS will provide 1 calibration kit for each order with a quantity of
25 Remote Breath Equipment units.
Calibration Fee: AMS will calibrate Remote Breath Equipment for a charge of $50 Equipment unit.
6 SHELF FEE; SHELF ALLOWANCE; LOSS AND DAMAGE ALLOWANCE; LOST AND DAMAGE FEE:
Shelf Fee: A Shelf Fee is only charged if there is an amount in the Rental Equipment Fee column 'in the table above
and there is a Shelf Allowance percentage listed below.
Shelf Allowance: All Equipment: 20%
Lose and Damage Allowance: 5%
Loss and Damage Fee: The replacement fee for Rental Equipment lost or damage beyond repair will be the
purchase price, per unit, listed above or as follows. For Parts it will be the current replacement cost from the
manufacturer. GPS refurbishment fee will be $365.20 for those units that can be repaired
7 SPECIAL TERMS: Consumables waived
IN WITNESS WHEREOF, the parties' hereto have caused this Agreement to be executed by their dully authorized
representatives as of the date last signed by AMS.
THIS SCHEDULE, AND THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF
THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR SCHEDULE AND ANY PROPOSALS AND
UNDERSTANDINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS SCHEDULE. By execution,
both signers certify that each is authorized to execute the Schedule on behalf of their respective companies.
MASON COUNTY JAIL ALCOHOL MONITORING SYSTEMS, INC.
Name: Randyerlin
Title: Chairman
Date:
By: OK O tt_
Name: Lou Sugo
Title: Vice President — Sales and Marketing
Signed by AMS and effective as of:
4
Agency Product and Services Schedule Purchase Only
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ATTACHMENT 1 -MONITORING SERVICE LEVEL AGREEMENT
TO
PRODUCT AND SERVICES SCHEDULE
TO
MASTER AGENCY AGREEMENT
INTENTIONALLY OMITTED
5
Agency Product and Services Schedule Purchase Only
Version 20180125