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CM-12-01-019Item Caption: UYt-I7-^0(-q RECEIVED JAN252012 City Manager Approval Form Consider executing a Publications Subscription and Access Agreement with CALEA, Inc. for access licensed law enforcement materials. Approval Date: January 27, 2012 Department Name: Police Department Project Manager: Rick White Assigned Attorney: Item Summary: The attached agreement outlines the terms and conditions for an electronic subscription to publications provided by The Commission on Accreditation for Law Enforcement Agencies (CALEA). This subscription will provide the Police Department with policy, law enforcement standards, and other resources as it maintains its accreditation status. The Police Department has been accredited by CALEA since 2004. Accreditation by CALEA is a highly prized recognition of law enforcement excellence awarded only to agencies that can demonstrate full compliance with all of the applicable standards established by the Commission. No. of Originals Submitted: 2 Project Name: Publications Subscription and Access Agreement Cost: $150.00 Source of Funds: General Fund Source of Funds (if applicable): Select Source Fund Account Number: 5414-100-21000 Finance Director Approval: S. Carter for Cheryl Delaney Date: 01/25/2012 Department Director Approval: Tim Ryle Date: 01/24/2012 **Electronic signature by the Director is acceptable. Please only submit ONE approval form per item.** CIP ❑ Budget E a Purchasing f a Accounting E N/A OK N/A OK N/A OK N/A OK ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL REV. 6/20/11 mow CALEA® TIf6 LAID STANDARD IN PURUC SAFETY vr PUBLICATIONS SUBSCRIPTION AND ACCESS AGREEMENT TERMS & CONDITIONS FOR SUBSCRIBERS TO THE ELECTRONIC PUBLICATIONS THIS SUBSCRIPTION AND ACCESS AGREEMENT ("Agreement") by and between CALEA®, Inc., a Maryland Corporation, located at 13575 Heathcote Boulevard, Suite, 320 Gainesville, Virginia 20155-6660("Licensor"); and City of Round Rock, located at 221 East Main Street, Round Rock, TX 78664("Licensee") intending to be legally bound, for CALEA to provide to Licensee, subject to this Agreement, access to CALEA's electronic publications for the purpose of CALEA Accreditation, research, general resource, or other approved purpose. I. Content of Licensed Materials; Grant of License The materials that are the subject of this Agreement shall consist of electronic information published or otherwise made available by Licensor which includes the following: (a) CALEA Standards for Law Enforcement Agencies; (b) CALEA Standards for Public Safety Communications Agencies; (c) CALEA Standards for Public Safety Training Academies; (d) CALEA Standards for Campus Security Agencies; and (e) CALEA Process and Programs Guide (hereinafter referred to as the "Licensed Materials"). Licensee and its Authorized Users acknowledge that the copyright and title to the Licensed Materials and any trademarks or service marks relating thereto remain with Licensor and/or its suppliers. Neither Licensee nor its Authorized Users shall have right, title or interest in the Licensed Materials except as expressly set forth in this Agreement. Licensor hereby grants to Licensee non-exclusive use of the Licensed Materials and the right to provide the Licensed Materials to Authorized Users in accordance with this Agreement. In the event Licensee elects to export data from any of the electronic publications, all of the terms contained within this agreement will apply, with the provision to include downloading of the data to a Licensee electronic file. Data exported will be used for public safety accreditation management or scholarly, educational use only and these data cannot be resold or used for other commercial purposes, posted on a subscription or free site, or forwarded beyond the initial export/download, without the written permission from CALEA. Licensee acknowledges CALEA copyright and agrees to cite the CALEA when using data from the publication(s). November 2011 II. Delivery/Access of Licensed Materials to Licensee Licensor will provide the Licensed Materials to the Licensee through Networked Access or Local Access via an application developed and supported by Innovative Data Systems (IDS). The Licensed Materials will be stored at one or more Licensor locations in digital form accessible by telecommunications links between such locations and authorized networks of Licensee. III. Fees (a) SUBSCRIPTION FEES — The annual Subscription Fees are determined by CALEA customer type. Licensee shall select one of the following CALEA customer types: ® CALEA Enrolled Agencies Organizations currently enrolled in one of the four CALEA Accreditation Programs (Law Enforcement, Public Safety Communications, Public Safety Training Academy and CALEA Campus Security Accreditation). The annual subscription fee is $150 (CALEA will invoice separately). ❑ Non -Enrolled Agencies Organizations currently not enrolled in one of the four CALEA Accreditation Programs. The annual subscription fee is $900. ❑ Non -Public Safety Academic Institutions Organizations that primarily serve for the purpose of providing education support and research. Libraries are an example of this customer type. The annual subscription fee is $200. ❑ Individuals Persons not associated with a CALEA Enrolled, Non -Enrolled or Non -Public Safety Academic Institution. Individuals are not eligible for site licenses. The annual subscription fee is $80. CALEA reserves the right to change a Licensee's customer type at any time during the duration of Agreement. (b) BILLING - Licensee shall be billed annually, in advance, at rates set forth by CALEA on an invoice. Payment shall be due and payable upon receipt of the invoice. Accounts not paid in full within 30 days of the invoice date shall be considered delinquent and may result in a disruption of licensed materials access. NOTE: This disruption will impact the functionality of the IDS PowerDMS Standards software for those entities subscribing to that service. (c) BILLING ENTITY - CALEA shall serve as the billing entity and all invoices associated with this agreement are separate and apart from other services provided by CALEA, including but not limited to accreditation services, other software services, conference services, and other products. 2 IV. CALEA Commitment to Customer Service In order to support its customers and maintain contemporary publications, and to leverage technology, CALEA may periodically make changes to the content, design and delivery of its Publications and Services. This includes the updating of standards and the respective manuals. CALEA will make reasonable efforts to notify Licensee of changes when they are material through corporate website notices, but in any case Licensee continued use of the Subscription Services shall constitute Licensee assent to this Agreement as it is then in effect. If Licensor changes this Agreement, Licensor will make notification through electronic transmittal, and the changes will become immediately effective. Accordingly, Licensee should visit the Site periodically to review the then -current services. V. Authorized Use of Licensed Materials (a) Authorized Users - Authorized Users are Persons Affiliated with Licensee directly or through a subscribing entity in which they are employed or directly affiliated for a specific purpose that supports the entity's mission. This may include full or part-time employees of the subscribing entity. A licensee may not share access to the publications with other entities or affiliates of other entities, or other individuals. This includes the sharing of access among public safety organizations. (b) Authorized Uses. Licensee and Authorized Users may make all use of the Licensed Materials as is consistent with the Fair Use Provisions of United States and international law. Nothing in this Agreement is intended to limit in any way whatsoever Licensee's or any Authorized User's rights under the Fair Use provisions of United States or international law to use the Licensed Materials. The Licensed Materials may be used for purposes of CALEA Accreditation, research, education or other noncommercial use as follows: 1. Display - Licensee and Authorized Users shall have the right to electronically display the Licensed Materials as necessary to support the use intent of the materials. 2. Digitally Copy - Licensee and Authorized Users may download and digitally copy a reasonable portion of the Licensed Materials for the licensee's use and not for redistribution in any manner. 3. Print Copy - Licensee and Authorized Users may print a reasonable portion of the Licensed Materials for redistribution within the non-commercial environment, but not for redistribution outside of the licensed entity. 4. Databases - Authorized Users shall be permitted to extract or use information contained in the database for accreditation, educational, scientific, or research purposes, including extraction and manipulation of information for the purpose of illustration, explanation, example, comment, criticism, teaching, research, or analysis. 3 5. Electronic Links - Licensee may provide electronic links to the Licensed Materials from Licensee's intranet (internal to the entity) page(s), and is encouraged to do so in ways that will increase the usefulness of the Licensed Materials to Authorized Users. Licensor staff will assist Licensee upon request in creating such links effectively. Licensee may make changes in the appearance of such links and/or in statements accompanying such links as reasonably requested by Licensor. 6. Caching - Licensee and Authorized Users may make such local digital copies of the Licensed Materials as are necessary to ensure efficient use by Authorized Users by appropriate browser or other software. 7. Scholarly Sharing - Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for re -sale. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User's own scientific, scholarly and educational works. VI. Access by and Authentication of Authorized Users Licensee and its Authorized Users shall be granted access to the Licensed Materials. This access will be established by CALEA or IDS as necessary to ensure the seamless delivery of publication services to the licensee, under protocol established by CALEA or IDS. The development of specific connection protocols shall be identified and authenticated by such means as may be developed during the term of this Agreement to meet the service delivery requirements of this agreement. VII. Specific Restrictions on Use of Licensed Materials (a) Unauthorized Use - Except as specifically provided elsewhere in this agreement, Licensee shall not knowingly permit anyone other than Authorized Users to use the Licensed Materials. (b) Modification of Licensed Materials - Licensee shall not modify or create a derivative work of the Licensed Materials without the prior written permission of Licensor. (c) Removal of Copyright Notice - Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials. (d) Commercial Purposes - Other than as specifically permitted in this Agreement, Licensee may not use the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form. 4 VIII. Licensor Performance Obligations (a) Availability of Licensed Materials — Within 30 days, Licensor shall make the Licensed Materials available to Licensee and Authorized Users. (b) Support — General access support will be provided by CALEA staff and technical support will be provided by IDS where required. (c) IDS PowerDMS Standards — Licensees using IDS PowerDMS Standards will receive all technical support from IDS as defined within the IDS licensing agreement. IX. Licensee Performance Obligations (a) Provision of Notice of License Terms to Authorized Users - Licensee shall make reasonable efforts to provide Authorized Users with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement. (b) Protection from Unauthorized Use - Licensee shall use reasonable efforts to inform Authorized Users of the restrictions on use of the Licensed Materials. In the event of any unauthorized use of the Licensed Materials by an Authorized User, (1) Licensor may terminate such Authorized User's access to the Licensed Materials, (2) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorized use occurred, and/or (3) Licensee may terminate such Authorized User's access to the Licensed Materials upon Licensor's request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than sixty (60) days and cooperating with the Licensee to avoid recurrence of any unauthorized use. (c) Maintaining Confidentiality of Access - Where access to the Licensed Materials is to be controlled by use of passwords, Licensee shall issue log -on identification numbers and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their numbers and passwords to any third party. Licensee shall also maintain the confidentiality of any institutional passwords provided by Licensor. X. Mutual Performance Obligations (a) Confidentiality of User Data - Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party. 5 (b) Implementation of Developing Security Protocols - Licensee and Licensor shall cooperate in the implementation of security and control protocols and procedures as they are developed during the term of this Agreement. XI. Term This Agreement shall take effect when the authorized representative of Licensee and the Executive Director of CALEA signs the Agreement. This Agreement shall be effective upon signing by the second party and payment of appropriate subscription fees, the "Effective Date." The Term of this Agreement shall be one (1) year, commencing on the Effective Date. Sections of this Agreement specific to the authorized use and users will survive any expiration, cancellation or termination of this Agreement. XII. Early Termination In the event that either party believes that the other materially has breached any obligations under this Agreement, or if Licensor believes that Licensee has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have sixty (60) days from the receipt of notice to cure the alleged breach and to notify the non - breaching party in writing that cure has been effected. If the breach is not cured within the sixty (60) days, the non -breaching party shall have the right to terminate the Agreement without further notice. Upon Termination of this Agreement for cause access to the Licensed Materials by Licensee and Authorized Users shall be terminated. Authorized copies of Licensed Materials may be retained by Licensee or Authorized Users and used subject to the terms of this Agreement. In the event of early termination permitted by this Agreement, Licensee shall not be entitled to a refund of any fees or pro -rata portion thereof paid by Licensee for any remaining period of the Agreement from the date of termination. XIII. Warranties Subject to the Limitations set forth elsewhere in this Agreement: Licensor warrants that it has the right to license the rights granted under this Agreement to use Licensed Materials that it has obtained any and all necessary permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials by Authorized Users in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The Licensor shall indemnify and hold Licensee and Authorized Users harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney's fees, which arise from any claim by any third party of an alleged infringement of copyright or any other property right arising out of the use of the Licensed Materials by the Licensee or any Authorized User in accordance with the terms of this Agreement. This indemnity shall survive 6 the termination of this agreement. NO LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT IS APPLICABLE TO THIS INDEMNIFICATION. XIV. Limitations on Warranties Notwithstanding anything else in this Agreement: Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Licensed Materials. Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Licensed Materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. Except for the express warranties stated herein, the Licensed Materials are provided on an "as is" basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to Authorized Users, or to any third party. XV. Indemnities Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney's fees, which arise from any alleged breach of such indemnifying party's representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of this Agreement. XVI. Assignment and Transfer Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. XVII. Entire Agreement This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. 7 XVIII. Amendment No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee. XIX. Severability If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. XX. Waiver of Contractual Right Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. XXI. Governing Law Laws will be governed by the state of Virginia regarding disputes arising from this agreement. 8 SIGNATURE PAGE ACCEPTED AND AGREED: Licensee Signature: Name: Steve Norwood Agency Name:City of Round Rock Title: City Mana er Date: CALEA® Signature: Name: Syester Daughtry, Title: Date: Executive Director CALEA has caused this Agreement to be executed on 20 9