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HomeMy WebLinkAboutAGMT - HomeWAV (Inmate Communications System Provider) 1 homewav ' Lease, Revenue Sharing and Service Agreement Seal Beach Police Department(CA) This Lease, Revenue Sharing and Service Agreement(this"Agreement"),made and entered into as of this 13 day of August 2018(the"Effective Date"),between the City of Seal Beach(CSB) and HomeWAV,LLC,a Delaware limited liability company("HomeWAV"). RECITALS Whereas,the CSB and HomeWAV desire to enter into Agreement to provide,among other terms and conditions,that the CSB will lease certain equipment,as set forth on Exhibit A hereto(the "Equipment"),from HomeWAV and will use that Equipment to operate HomeWAV's proprietary and patented software program(the"Software"and,together with the Equipment,the"System");and certain other permitted uses,as set forth on Exhibit B attached hereto(the"Other Permitted Uses"); Whereas,the System will be installed and operated in the CSB's detention facilities hereto (each,a"Facility"and collectively,the"Facilities")and will provide inmate telephone and video visitation over the Internet;and Whereas, HomeWAV will deliver the Equipment and provide the CSB with a limited license to use the Software,and the CSB will accept the Equipment and make use of the Software and the System, in each case,pursuant to the terms and subject to the conditions set forth herein. Now,therefore, in consideration of the mutual covenants and promises contained herein,the parties,desiring to be contractually bound,agree as follows: 1. Lease; Exclusivity. HomeWAV hereby agrees to lease to the CSB,and the CSB hereby agrees to accept a lease from HomeWAV,the Equipment. For the duration of this Agreement(which includes any extensions hereto),the CSB agrees to use HomeWAV as the exclusive provider of inmate telephone and video visitation systems for the Facilities and agrees not to use,purchase, lease or accept any software,equipment or system similar to the Software,the Equipment or the System for use at any Facility. 2. Term of this Agreement. The initial term of this Agreement shall be 5 years and will commence 90 days after the execution of the Agreement. 3. No Charge. HomeWAV will: (i)arrange for the delivery of the Equipment to the Facilities, (ii) load the Software onto the Equipment,(iii)coordinate the installation of the Equipment in designated wall mount locations within the Facilities,(iv)arrange for cat 5e or greater data cable to be installed to each location within the Facility where the Equipment is to be installed,(v)arrange for high speed Internet service and any equipment associated therewith to be provided to the Facility,(vi)provide reasonable authorization and assistance to permit the use of the Equipment in connection with the Other Permitted Use and(vii)provide staff training on administrative platform features and functionality,all at no charge to the CSB. 1 homewav 4. No Charge for Service and Maintenance. HomeWAV will service and maintain the Equipment in each Facility pursuant to Software and Hardware Service Level Agreement,to be entered into between HomeWAV and the CSB contemporaneously with the execution this Agreement and may be amended as may be mutually agreed to by the parties thereto(the"Service Agreement"),which shall automatically terminate upon termination of this Agreement; provided that HomeWAV shall not service or maintain the Equipment to the extent any damage occurred as a result of misuse,neglect or any breach of this Agreement, in each case,by any person other than HomeWAV or its employees, agents,representatives or subcontractors. 5. Title to the Equipment. HomeWAV shall retain title to the Equipment and the System. The CSB agrees to execute any such additional instruments and to permit any filing or recordation as may be requested by HomeWAV to indicate ownership of the Equipment. The CSB will not,and will not permit any other person to,remove,alter,disfigure or cover up any numbering, lettering,insignia or any owner's tag(s)displayed upon the Equipment. 6. License for Use of System. HomeWAV hereby grants to the CSB a non-assignable and nonexclusive license to use the Software for the limited purpose of providing inmate telephone and Internet video visitation to inmates in each Facility and to view or monitor the records of such visitations, in each case in accordance with the Software's End User Licensing Agreement and Terms of Use and Privacy Policy,as each is set forth in the Software,as such items may be updated,amended and modified in accordance with their respective terms(collectively,the"Software Terms and Conditions"),and pursuant to the terms and subject to the conditions of this Agreement.The CSB shall have no right to sublicense the Software and may not copy or modify the Software,or any adaptation,transcription or merged portion thereof,except as expressly authorized in writing by HomeWAV. Any modifications, improvement or alterations to the Software,whether authorized or not,made by the CSB or any third party shall be the sole and exclusive property of HomeWAV,and the CSB hereby assigns all of its right, title and interest in and to such modifications, improvements or alterations to HomeWAV. For the avoidance of doubt,this license shall expire immediately upon the termination of this Agreement. 7. The CSB's Agreements. a. The CSB covenants that it will not sublease or assign the Equipment,the Software or the System. b. The CSB agrees that the CSB shall keep the Equipment free and clear of all liens and encumbrances. c. The CSB hereby agrees to use the Equipment for limited purposes of use of the Software and the Other Permitted Uses, in each case,at the Facilities and pursuant to the terms and subject to the conditions of this Agreement. d. The CSB agrees to use its best efforts to ensure that none of the Equipment or Software is damaged by misuse or neglect,including,without limitation,by misuse by the inmates. 2 Jar homewav M e. The CSB agrees that HomeWAV shall be the sole and exclusive provider of existing and any future inmate related communications,including but not limited to voice,video,and data(e.g., phone calls,video calls,messaging, and email)at all existing and future correctional facilities under the authority of the CSB in lieu of any other third party providing such inmate including without limitation,Customer's employees,agents,or subcontractors. f. The CSB will work with HomeWAV to ensure that all users of the System will agree to the Software Terms and Conditions. g. The CSB will provide a data file of the CSB's Jail Management Software at a minimum of fifteen (15)minutes per day. h. The CSB will not move the Equipment without the advance written consent of HomeWAV. i. The CSB will not remove,alter,disfigure or cover up any numbering, lettering, insignia or any owner's tag(s)displayed upon the Equipment. 8. Use of the System. Subject to lock-downs, suspension of inmate privileges,and other temporary interruptions,the CSB will allow inmate visitation on the System during the same hours when inmates are allowed to use the applicable Facility's inmate phone systems. 9. Access to the Facility. The CSB will grant HomeWAV and its subcontractors reasonable access to the Facilities in connection with HomeWAV's rights and obligations hereunder and under the Service Agreement. HomeWAV shall have the right,upon reasonable notice,to enter into each Facility to inspect the System. 10. System Usage Fee. The video visitors to each Facility's inmates shall be charged a fee at the rate of twenty-one cents($.21)per minute to take part in interstate calls through the inmate telephone service, twenty-five cents($.25)per minute to take part in intrastate calls through the inmate telephone service, fifty cents ($0.50)per minutevideo visitations using the System,one dollar($1.00)to send a video message and one-dollar($1.00)to send an inmate email: or such other prices as may be agreed to by the CSB and HomeWAV(such amounts,the"Usage Fees"). Revenues from video visitation using the System to visit with inmates in the Facilities shall be deposited into a dedicated account established and maintained by HomeWAV through PayPal,or another equivalent third-party ecommerce vendor,and HomeWAV is authorized to disburse such funds in accordance with Section 14. HomeWAV reserves the right to change the Usage Fees,upon 30 days' notice from HomeWAV,as a result of any one or combination of the following: (a)inflation,(b)a change in taxes,(c)a change in inmate phone rates or (d)any rule,regulation,or other action by any government or regulatory entity resulting in increased costs to HomeWAV. 11. Revenue Sharing. The CSB's revenue share from the usage of the Equipment and the System installed in the Facility will be 20%. Revenue shall be defined as monies generated by the("Usage Fee") minus the cost of any third-party service(i.e. international calling rates)or government taxes. Usage Fee shall be defined as the cost per minute for video and voice calls. HomeWAV shall pay to the CSB, on a monthly basis,its share of the revenues not later than the 10'h of following month. 3 .I� homewav 12. Call Monitoring. HomeWAV will endeavor to permit the CSB to monitor the voice and video calls in accordance with HomeWAV's practices.The CSB hereby agrees that HomeWAV shall have no obligation to review or monitor the contents of any video call or video message made or received using the Software or the System and shall have not obligation to notify the CSB in connection with any use or misuse of the Software or the System or any video call or video message made or received on the System. The CSB hereby agrees that HomeWAV shall have no obligation to verify the users of the Software and the System and shall not be liable for any use of the Software that is in violation of the Software Terms and Conditions. HomeWAV will endeavor to make certain video recordings available to the CSB on demand for a period of not less than 90 days after the date of such recording and,with advanced written notice,until 90 days after termination of this Agreement.The CSB agrees that HomeWAV has no liability to the CSB or any third party for any failure to record,store,transmit,relay,review or monitor any video message. 13. Financial Reporting Requirements. HomeWAV shall maintain an accounting program that accurately reflects the revenues generated by the System in the Facilities and provide that information to the CSB monthly during the term of this Agreement.HomeWAV shall retain its share of the revenues as payment for its obligations hereunder,and shall remit the CSB's share of revenues,along with such monthly financial reports,to the CSB.HomeWAV shall issue inmate telephone and video visitation call data,revenue,and expense information by the 10th day of each month with respect to inmate telephone and video visitation activity that occurred in the Facilities during the preceding month. HomeWAV shall maintain all books,documents,accounting records and other evidence pertaining to the services and payments under this Agreement and make such materials available for inspection at all reasonable times during the term of this Agreement,and for three(3)years after the date of the final payment under the Agreement. 14. Termination. The CSB may terminate this Agreement if HomeWAV breaches Section 4, 5, 6, 13 or 15 and such breach remains unremedied thirty(30)days after notice thereof.HomeWAV may terminate this Agreement if the CSB breaches Section 1,2,5,6,7,8,9, 10,or 11 and such breach remains unremedied thirty(30)days after notice thereof.This Agreement shall automatically terminate upon the end of the term,as such term may be extended pursuant to Section 3. Sections 11, 13, 15, 16, 17, 18,20,21,22,23,25 and 27-32 shall survive termination of this Agreement. In the event that the Additional Consideration has not paid to or retained by HomeWAV prior to termination of this Agreement(excluding any termination by the CSB pursuant to the first sentence of this Section),then the CSB shall owe HomeWAV any amount of Additional Consideration not previously paid to or retained by HomeWAV. 15. Return of the Equipment.The CSB shall return the System to HomeWAV in good,working condition promptly following termination or expiration of this Agreement,but in no event later than(30) days following such termination or expiration.In the event that any Equipment is not in good,working condition or any Equipment is not returned pursuant to this Section,the CSB shall be liable for the replacement cost of such Equipment,which amount shall be payable on HomeWAV's demand. 16. Agreement Documents. The attached Exhibit A,describing the Equipment and attached Exhibit B describing the Other Permitted Uses,the Service Agreement and the Software Terms and Conditions 4 Jar homewav' are each made part of this Agreement and are each incorporated herein by this reference. This Agreement represents the entire agreement and understanding between HomeWAV and the CSB with respect to the subject matter hereof,and supersedes any other agreement or understanding,written or oral, that the parties hereto may have had with respect thereto. No statements,representations,promises or inducements with respect to the subject matter by either party or by any agent or representative of either party which is not contained in this Agreement shall be valid or binding between the parties. 17. Force Majeure. To the extent allowable by law,any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party's control (a"Force Majeure"),including,without limitation,acts of God,strikes or other labor disturbances,war,whether declared or not,sabotage,failure of the Internet,or any part or element thereof and/or any other cause or causes,whether similar or dissimilar to those herein specified,which cannot reasonably be controlled by such party. 18. Governing Law,Jurisdiction,and Venue. This Agreement shall be governed by the laws of the State of California,both as to interpretation and performance. 19. Independent Contractor. HomeWAV acknowledges that HomeWAV and its employees serve as independent contractors and that the CSB shall not be in any manner responsible for any payment, insurance,or incurred liability.Nothing in this Agreement will create an employer-employee relationship, association,joint venture,partnership,or other form of legal entity or business enterprise between the parties,their agents,employees or affiliates. 20. Subcontractors. HomeWAV shall have the right to use subcontractors to perform its obligations and exercise its right hereunder and under the Service Agreement. HomeWAV shall be liable for all acts and omissions of its subcontractors as if such acts or omissions were performed by HomeWAV. 21. Notices. All notices under this Agreement must be in writing and must be given by either party by prepaid mail,overnight courier service,or hand delivery to the other party as set forth below. Either party may change its address and/or addressee for notices at any time with fifteen(15)days' prior notice to the other party in accordance with the foregoing. HomeWAV: HomeWAV, LLC 11100 Linpage Place Suite 200 St. Louis,MO 63132 CSB: City of Seal Beach,California 211 8th Street Seal Beach, CA 90740 22. Nondiscrimination and Non-Conflict Statements. HomeWAV agrees that no person on the grounds of handicap,age,race,color,religion,sex or national origin,shall be excluded from participation in,or be denied benefits of,or be otherwise subjected to discrimination in the performance of this Agreement, or in the employment practices of HomeWAV. HomeWAV shall upon request show proof of 5 Jar homewav ' such non-discrimination and shall post in conspicuous places available to all employees and applicants notices of nondiscrimination. 23. Warranty Disclaimer. THE SYSTEM,THE SOFTWARE,THE EQUIPMENT AND SERVICES DELIVERED PURSUANT TO THIS AGREEMENT AND THE SERVICE AGREEMENT ARE PROVIDED"AS IS"AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE BUT EXCLUDING ALL WARRANTIES EXPRESSLY PROVIDED IN THE SERVICE AGREEMENT. HOMEWAV DOES NOT WARRANT THAT THE SOFTWARE WILL RUN PROPERLY ON THE EQUIPMENT OR ANY OTHER HARDWARE,THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR COMPLETELY ERROR FREE,OR THAT ALL SOFTWARE ERRORS OR DEFECTS WILL BE CORRECTED. 24. Compliance with all Federal,State,and Municipal Laws. HomeWAV is familiar with,and agrees to observe and comply with,all applicable federal,state,and local laws,statutes,ordinances,and regulations in any manner affecting the provision of inmate video communication,and shall ensure that its third-party subcontract installers, if applicable,obtain any necessary permits prior to installation of the Equipment in the Facilities. 25. Assignment. No party hereto may assign this Agreement or any or all any of its rights or obligations hereunder without the prior written consent of the other party;provided,however,that HomeWAV may assign this Agreement to any of its subsidiaries or affiliates or to any entity that acquires all or substantially all of HomeWAV's assets and agrees to assume responsibility hereunder.None of the provisions of this Agreement shall be construed to be for the benefit of or enforceable by any person or entity other than the parties hereto and their successors and assigns. 26. Indemnification and Setoff. To the extent limited and in accordance with California law,each party agrees to defend, indemnify and hold harmless the other party,their officers,employees and agents from and against all liability claims,actions,damages,losses and expenses,including reasonable attorney's fees,which arises out of any negligent or will full act or omission by such party,or breach of any obligation of the party under this Agreement. HomeWAV may,without notice to the CSB, set off or recoup any liability it owes to the CSB against any liability for which HomeWAV determines the CSB is liability to HomeWAV,whether either liability is matured or unmatured or is liquidated or unliquidated. 27. Severability. If any provision of this Agreement is declared illegal, void,or unenforceable the remaining provisions shall not be affected but shall remain in force and in effect. 28. Counterparts. This Agreement may be executed in one or more counterparts,each of which will be deemed an original hereof and all of which,when taken together,will be deemed to constitute one and the same agreement. Signatures transmitted by facsimile or other electronic means will be deemed originals. 6 Jar homewav 29. Authorization; Third Party Beneficiaries. Each person signing below warrants and represents that he/she has full power and authority to execute this Agreement on behalf of the party he/she represents. There are no third-party beneficiaries to this Agreement. (signature page follows) ,._ 1 homewav In witness whereof,the parties hereto have caused this Agreement to be executed on the day and year first above written,to be effective as of the Effective Date. HomeWAV,LLC 9 - t sz By: Name: John Best Title: President Date: 8/2/18 A--SSA, 1 6f? Ytejr) City of Seal Beach By1) ingr? ' g /k, ill edoir\ (214(4a),(445 Title: City VagFrre Date: di3 I J Ca +,. ,10k: - ,'- '1'`;'.,4 .., ', Approved - - y,4 Fly ,F--. ..ios ill v' !s:�� By. / / •i'' �9 9 j,: ��- Cr_ A. Steele, City Attorney ,, Ari;" g 8 Jar homewav .. EXHIBIT A The Equipment • Five (5) HomePASTM Kiosks • Five(5) PoE Adaptor Sets • One (1) 24 Port Switch • One (1) Dell SonicWALL TZ 300 Router/Firewall Jar homewav- EXHIBIT B Other Permitted Uses • Email • Inmate Handbook • Request Forms and Documents • Law Library Integration • Commissary Integration Jar homewaw Software and Hardware Service Level Agreement Support and Maintenance • Support and maintenance will be provided by phone support, remote access or testing and on-site support. Phone support is available(24) hours a day, (7) days a week, and(365) days a year. Remote access or testing and on-site support are available between 8:00 a.m. and 6:00 p.m. on business days. To the extent that any service window described herein is not practicable given the security protocols at the applicable facility, the parties will work together to address the problem in a timely manner. • Maintenance/repair calls from the facility will be resolved in the manner outlined in this section (subject to the limitations set forth above): • "Major Emergency" shall be defined as an occurrence of any one of the following conditions: A failure of the system processor, its common equipment or power supplies which render the system incapable of performing its normal functions; o A failure of the recording function or any of its components that affect the full recording operation; o A failure of any of the kiosks functions that result in the ability of inmates to place visitation sessions without the use of assigned PINs; or o A failure of the system "kill switches"or similar disabling function. For a"Major Emergency", HomeWAV will attempt to respond to the service problem within thirty(30) minutes of initial trouble report by the facility through the use of remote testing or access. If the system is not accessible for remote access, HomeWAV will have a qualified technician on site at the facility within two(2) hours from the time of initial trouble report. • "Routine Service" shall be defined as a system failure or problem other than a"Major Emergency" item as listed above. For a"Routine Service" HomeWAV will attempt respond to the service problem within four(4) hours of the initial trouble report using remote testing or access or, if the Routine Service is an issue/defect, the issue/defect will be resolved using the Service Ticket Process described below. If needed, HomeWAV will send a qualified technician on site at the facility. homewav Service Ticket Process • For issues or defects such as common "bugs"or similar problems, a service ticket is created for the issue/defect and sent to HomeWAV's product development team. • HomeWAV's product development team will take the issue/defect and have it documented for analysis. • Once analyzed, a scale is used to prioritize the service ticket and a number is placed on the issue/defect. A combination of importance, cost effectiveness and resolution time will determine the number. • This service ticket is then placed on the revolving"to do" list for our programmers who deploy the fixes based on priority. Request for Product Enhancement(Upgrade) Process • The staff fills out a work order request for an upgrade. • The work order request is analyzed by the product development team to determine whether it is a necessary universal upgrade to the system or specific to the CSB. • If it is determined to be a necessary universal upgrade, it will be sent through the service ticket process and developed at no charge to the CSB. If it is determined to be specific to the CSB, a quote will be presented to the CSB for approval. • If the work order request is approved by the CSB, the work order request will be sent to the service ticket process. • HomeWAV retains the right to invoice any amounts due to the CSB that were incurred in connection with upgrades requested by the CSB.