HomeMy WebLinkAbout20-21RESOLUTION 20-21
A RESOLUTION OF THE CITY COUNCIL OF THE
TOWN OF LOS ALTOS HILLS AUTHORIZING THE CITY MANAGER TO
NEGOTIATE AND ENTER INTO AN AGREEMENT WITH FLOCK SAFETY FOR UP
TO FORTY (40) AUTOMATIC LICENSE PLATE READER (ALPR) CAMERAS NOT
TO EXCEED $120,000 ANNUALLY AND APPROPRIATE $120,000 FROM THE
UNRESERVED GENERAL FUND IN FISCAL YEAR 2020-2021 FOR ALPR EXPENSES
WHEREAS, Automatic License Plate Reader (ALPR) cameras are used by police departments
across the United States to instantly capture license information and compare it against lists of
license plates associated with stolen vehicles, people that have committed a crime, and for other
investigative purposes; and
WHEREAS, the Town of Los Altos Hills ("Town") desires to install ALPRs in certain public
locations in the community for law enforcement purposes; and
WHEREAS, at its meeting on March 18, 2021, the Los Altos Hills City Council adopted an ALPR
policy governing the usage, privacy protections, and other implementation parameters for ALPRs
in the Town consistent with California Civil Code section 1798.90.5; and
WHEREAS, the City Council directed Town staff to explore options for purchasing ALPR
cameras and related service technologies in order to deploy and utilize ALPRs in Los Altos Hills;
and
WHEREAS, Town staff contacted several companies in the marketplace that offer ALPR
technology to review pricing options for cameras and related ALPR software and services, and
solicited quotes from three (3) vendors for the installation, use, and ongoing maintenance of the
cameras; and
WHEREAS, of these three vendors, staff recommends selecting Flock Safety ("Flock") as the
Town's ALPR vendor based on its competitive pricing, trial period benefit, and subscription style
service which allows the Town flexibility in renewing or terminating service; and
WHEREAS, Flock and the Town have negotiated a service agreement, attached hereto as Exhibit
A, for ALPR camera system and software services, for up to forty (40) ALPR cameras for an initial
term of twelve (12) months (including a 60 -day pilot program period with free cancellation) and
an initial amount of One Hundred and Ten Thousand Dollars ($110,000), to implement the Town's
ALPR program; and
WHEREAS, the service agreement would also have an automatic renewal term of twenty-four
(24) months with annual subscription cost of $100,00 and annual price increases capped at ten
percent (10%), but with 30 -day termination option; and
WHEREAS, staff requests an appropriation from the unreserved general fund in fiscal year 2020-
2021 for the expenditures relating to implementing the ALPR program and cover necessary costs
in addition to the stated Flock contract price.
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NOW THEREFORE, BE IT RESOLVED the City Council of the Town of Los Altos Hills
hereby approves an agreement with Flock for ALPR hardware and software services for an initial
term of twelve (12) months with automatic 24 -month renewals, and an initial amount of One
Hundred and Ten Thousand Dollars ($110,000) and annual subscription cost of $100,000 with
annual price increases capped at 10%, attached hereto and incorporated herein as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement on
behalf of the Town in substantially the same form as Exhibit A, and is authorized to make any
revisions, amendments or modifications deemed necessary to carry out the intent of this Resolution
that does not substantially increase the Town's obligations, subject to final approval as to form by
the City Attorney.
BE IT FURTHER RESOLVED that the City Council approves an appropriation of One Hundred
and Twenty Thousand Dollars ($120,000) from the unreserved general fund in fiscal year 2020-
2021 for the expenditures relating to implementing the ALPR program.
The above and foregoing Resolution was passed and adopted by the City Council of the Town of
Los Altos Hills at a regular meeting held on the 15th day of April 2021 by the following vote:
AYES: Tankha, Tyson, Mok, Schmidt, Swan
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST:
Deborah Padovan, City Cleric
BY: A"6
�1'`'' ~
Resolution 20-21
Kavita Tankha, Mayor
Page 2
Exhibit A
safetyffock
GOVERNMENT AGENCY CUSTOMER AGREEMENT
This Government Agency Agreement (this "Agreement") is entered into by and between Flock Group,
Inc. with a place of business at 1170 Howell Mill Rd NW Suite 210, Atlanta, GA 30318 ("Flock") and the
government agency identified in the signature block below ("Agency") (each a "Party," and together, the
"Parties").
RECITALS
WHEREAS, Flock offers a software and hardware solution for automatic license plate detection through
Flock's technology platform (the "Flock Service"), and upon detection, the Flock Service creates images and
recordings of suspect vehicles ("Footage") and can provide notifications to Agency upon the instructions of Non -
Agency End User ("Notifications");
WHEREAS, Agency desires to purchase, use anal/or have installed access to the Flock Service in order to
create, view, search and archive Footage and receive Notifications, including, when applicable, those from non -
Agency users of the Flock System (where there is an investigative purpose) such as schools, neighborhood
homeowners associations, businesses, and individual users, by authorized personnel including local sheriff's office
personnel with whom Agency has contracted for law enforcement services (identified below);
WHEREAS, because Footage is stored for no longer than (thirty) 30 days in compliance with Flock's
records retention policy, Agency is responsible for extracting, downloading and archiving Footage from the Flock
System on its own storage devices for auditing for prosecutorial/administrative purposes; and
WHEREAS, Flock desires to provide Agency the Flock Service and any access thereto, subject to the
terms and conditions of this Agreement, solely for the purpose of crime awareness and prevention by police
departments and archiving for evidence gathering ("Purpose").
AGREEMENT
NOW, THEREFORE, Flock and Agency agree as follows and further agree to incorporate the Recitals
into this Agreement.
1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross-referenced in
this Section 1.
1.1 "Authorized End User" shall mean any individual employees of the Santa Clara County Sheriff Office, agents,
or contractors of Agency accessing or using the Flock Services through the Web Interface, under the rights
granted to Agency pursuant to this Agreement.
1.2 "Agency Data" will mean the data, media and content provided by Agency through the Flock Services. For the
avoidance of doubt, the Agency Data will include the Footage and geolocation information and environmental data
collected by sensors built into the Units.
1.3 "Documentation" will mean text and/or graphical documentation, whether in electronic or printed format, that
describe the features, functions and operation of the Flock Services which are provided by Flock to Agency in
accordance with the terms of this Agreement.
1.4 "Embedded Software" will mean the software and/or firmware embedded or preinstalled on the Hardware.
1.5 "Flock IP" will mean the Flock Services, the Documentation, the Hardware, the Embedded Software, the
Installation Services, and any and all intellectual property therein or otherwise provided to Agency and/or its
Authorized End Users in connection with the foregoing.
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1.6 "Footage" means still images and/or video captured by the Hardware in the course of and provided via the Flock
Services.
1.7 "Hardware" shall mean the Flock cameras and any other physical elements that interact with the Embedded
Software and the Web Interface to provide the Flock Services. The term "Hardware" excludes the Embedded
Software.
1.8 "Implementation Fee(s)"means the monetary fees associated with the Installation Services, as defined in
Section 1.9 below.
1.9 "Installation Services" means the services provided by Flock regarding the installation, placements and
configuration of the Hardware, pursuant to the Statement of Work attached hereto.
1.10 "Flock Services or Services" means the provision, via the Web Interface, of Flock's software application for
automatic license plate detection, searching image records, and sharing Footage.
1.11 "Non Agency End User" means a Flock's non -Agency customer that has elected to give Agency access to its
data in the Flock system.
1.12 "Non -Agency End User Data" means the Footage, geolocation data, environmental data and/or notifications of
a Non -Agency End User.
1.13 "Unit(s)" shall mean the Hardware together with the Embedded Software.
1.14 "Usage lee" means the subscription fees to be paid by the Aggncy for ongoing access to Flock Services and
Hardware.
1.15 "Support Services" shall mean On-site Services and Monitoring Services, as defined in Section 2.9 below
1.16 "Web Interface" means the website(s) or application(s) through which Agency and its Authorized End Users
can access the Flock Services in accordance with the terms of this Agreement.
2. FLOCK SERVICES AND SUPPORT
2.1 Provision of Access. Subject to the terms of this Agreement, Flock hereby grants to Agency a non-exclusive,
non -transferable right to access the features and functions.of the Flock Services via the Web Interface during the
Service Term (as defined in Section 6.1) and No -Fee Term, solely for the Authorized End Users. The Footage will
be available for Agency's designated administrator, listed on the Order Form, and any Authorized End Users to
access via the Web Interface for thirty (30) days. Authorized End Users will be required to sign up for an account,
and select a password and username ("User ID"). Flock will also provide Agency the Documentation to be used in
accessing and using the Flock Services. Agency shall be responsible for all acts and omissions of Authorized End
Users, and any act or omission by an Authorized End User which, if undertaken by Agency, would constitute a
breach of this Agreement, shall be deemed a breach of this Agreement by Agency. Agency shall undertake
reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such
Authorized End User's use of the Flock Services and shall cause Authorized End Users to comply with such
provisions. Flock may use the services of one or more third parties to deliver any part of the Flock Services,
including without limitation using a third party to host the Web Interface which the Flock Services makes available
to Agency and Authorized End Users warranties provided by such third parties, are the agency's sole and exclusive
remedy and flock's sole and exclusive liability with regard to such third -party services, including without limitation
hosting the web interface. To the extent practicable, Agency agrees to comply with any acceptable use policies and
other terms of any third -party service provider that are provided or otherwise made available to Agency from time to
time.
2.2 Embedded Software License. Subject to all terms of this Agreement, Flock grants Agency a limited, non-
exclusive, non -transferable, non-sublicensable (except to the Authorized End Users), revocable right to use the
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Embedded Software as installed on the Hardware by Flock; in each case, solely as necessary for Agency to use the
Flock Services.
2.3 Documentation License. Subject to the terms of this Agreement, Flock hereby grants to Agency a non-
exclusive, non -transferable right and license to use the Documentation during the Service Term in connection with
its use of the Flock Services as contemplated herein, and under Section 2.4, below.
2.4 Usage Restrictions. The purpose for usage of the Hardware, Documentation, Services, support, and the Flock IP
is solely to facilitate gathering evidence that could be used in a lawful criminal investigation by the appropriate
government agency and not for tracking activities that the system is not designed to capture ("Permitted Purpose").
Agency will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Flock IP; (ii)
decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any
software component of any of the Flock IP is compiled or interpreted, or apply any other process or procedure to
derive the source code of any software included in the Flock IP, or attempt to do any of the foregoing, and Agency
acknowledges that nothing in this Agreement will be construed to grant Agency any right to obtain or use sdch
source code; (iii) modify, alter, tamper with or repair any of the Flock IP, or create any derivative product from any
of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Flock; (iv) interfere
or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP; (v) remove,
obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of
the Flock Services or Flock IP; (vi) use the Services, support, Hardware, Documentation or the Flock IP for anything
other than the Permitted Purpose; or (vii) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey,
or pledge as security or otherwise encumber, Agency's rights under Sections 2.1, 2.2, or 2.3.
2.5 Retained Rights; Ownership. As between the Parties, subject to the rights granted in this Agreement, Flock
and its licensors retain all right, title and interest in and to the Flock IP and its components, and Agency
acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by
this Agreement. Agency further acknowledges that Flock retains the right to use the foregoing for any purpose in
Flock's sole discretion. There are no implied rights.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Flock may temporarily suspend
Agency's and any Authorized End User's access to any portion or all of the Flock IP if (i) Flock reasonably
determines that (a) there is a threat or attack on any of the Flock IP; (b) Agency's or any Authorized End User's use
of the Flock Service disrupts or poses a security risk to the Flock Service or any other customer or vendor of Flock;
(c) Agency or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Flock's
provision of the Flock Services to Agency or any Authorized End User is prohibited by applicable law; (e) any
vendor of Flock has suspended or terminated Flock's access to or use of any third party services or products required
to enable Agency to access the Flock IP; or (f) Agency has violated any term of this provision, including, but not
limited to, utilizing the Flock Services for anything other than the Permitted Purpose (each such suspension, in
accordance with this Section 2.6, a "Service Suspension"). Flock will make commercially reasonable efforts,
circumstances permitting, to provide written notice of any Service Suspension to Agency (including notices sent to
Flock's registered email address) and to provide updates regarding resumption of access to the Flock IP following
any Service Suspension. Flock will use commercially reasonable efforts to resume providing access to the Flock
Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Flock will have
no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that
Agency or any Authorized End User may incur as a result of a Service Suspension. To the extent that the Service
Suspension is not caused by Agency's direct actions or by the actions of parties associated with the Agency, the
expiration of the Term will be tolled by the duration of any suspension (for any continuous suspension lasting at
least one full day).
2.7 Installation Services.
2.7.1 Designated Locations. Prior to performing the physical installation of the Units, Flock shall advise
Agency on the location and positioning of the Units for optimal license plate image capture, as conditions and location
allow. Flock and Agency must mutually agree on the location (mounting site or pole), position and angle of the Units
(each Unit location so designated by Agency, a "Designated Location"). Flock shall have no liability to Agency
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resulting from any poor performance, functionality or Footage resulting from or otherwise relating to the Designated
Locations or delay in installation due to Agency's delay in identifying the choices for the Designated Locations, in
ordering and/or having the Designated Location ready for installation including having all electrical work preinstalled
and permits ready. Designated Locations that are suggested by Flock and accepted by Agency without alteration will
be known as Flock Designated Locations. After a deployment plan with Designated Locations and equipment has
been agreed upon by both Flock and the Agency, any subsequent changes to the deployment plan ("Reinstalls") driven
by Agency's request will incur a charge for Flock's then -current list price for Reinstalls, as listed in the then -current
Reinstall Policy (available at https://www.flooksafety.com/reinstall-fee-schedule) and any equipment charges. These
changes include but are not limited to camera re -positioning, adjusting of camera mounting, re -angling, removing
foliage, camera replacement, changes to heights of poles, regardless of whether the need for Reinstalls related to
vandalism, weather, theft, lack of criminal activity in view, and the like.
2.7.2 Agency's Installation Obligations. Agency agrees to allow Flock and its agents reasonable access in
and near the Designated Locations at all reasonable times upon reasonable notice for the purpose of performing the
installation work, The "Agency Installation Obligations" include, to the extent required by the deployment plan, but
are not limited to electrical work to provide a reliable source of 120V AC power that follow Flock guidelines and
comply with local regulations if adequate solar exposure is not available. Agency is solely responsible for (i) any
permits or associated costs, and managing the permitting process; (ii) any federal, state or local taxes including
property, license, privilege, sales, use, excise, gross receipts or other similar taxes which may now or hereafter become
applicable to, measured by or imposed upon or with respect to the installation of the Hardware, its use, or (iii) any
other services performed in connection with installation of the Hardware. Flock will provide options to supply power
at each Designated Location. If Agency refuses alternative power supply options, Agency agrees and understands that
Agency will not be subject to any reimbursement, tolling, or credit for any suspension period of Flock Services due
to low solar. Flock will make all reasonable efforts within their control to minimize suspension of Flock Services.
Any fees payable to Flock exclude the foregoing. Without being obligated or taking any responsibility for the
foregoing, Flock may pay and invoice related costs to Agency if Agency did not address them prior to the execution
of this Agreement or a third party requires Flock to pay. Agency represents and warrants that it has all necessary right
title and authority and hereby authorizes Flock to install the Hardware at the Designated Locations and to make any
necessary inspections or tests in connection with such installation.
2.7.3 Flock's Installation Obligations. The Hardware shall be installed in a workmanlike manner in
accordance with Flock's standard installation procedures, and the installation will be completed within a reasonable
time from the time that the Designated Locations are selected by Agency. Following the initial installation of the
Hardware and any subsequent Reinstalls or maintenance operations, Flock's obligation to perform installation work
shall cease; however, Flock will continue to monitor the performance of the Units for the length of the Term and will
receive access to the Footage for a period of three (3) business days after the initial installation in order to monitor
performance and provide any necessary maintenance solely as a measure of quality control. Agency can opt out of
Flock's access to Footage after the initial installation which would waive Flock's responsibility to ensure such action
was successful. Agency understands and agrees that the Flock Services will not function without the Hardware. Labor
may be provided by Flock or a third party.
2.7.4 Security Interest. The Hardware shall remain the personal property of Flock and will be removed upon
the termination or expiration of this Agreement. Agency agrees to perform all acts which may be necessary to assure
the retention of title of the Hardware by Flock. Should Agency default in any payment for the Flock Services or any
part thereof or offer to sell or auction the Hardware, then Agency authorizes and empowers Flock to remove the
Hardware or any part thereof. Such removal, if made by Flock, shall not be deemed a waiver of Flock's rights to any
damages Flock may sustain as a result of Agency's default and Flock shall have the right to enforce any other legal
remedy or right.
2.8 Hazardous Conditions. Unless otherwise stated in the Agreement, Flock's price for its services under this
Agreement does not contemplate work in any areas that contain hazardous materials, or other hazardous conditions,
including, without limit, asbestos, lead, toxic or flammable substances. In the event any such hazardous materials
are discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall
have the right to cease work immediately in the area affected until such materials are removed or rendered harmless.
Any additional expenses incurred by Flock as a result of the discovery or presence of hazardous material or
hazardous conditions shall be the responsibility of Agency and shall be paid promptly upon billing.
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2.9 Support Services. Subject to the payment of fees, Flock shall monitor the performance and functionality of
Flock Services and may, from time to time, advise Agency on changes to the Flock Set -vices, Installation Set -vices,
or the Designated Locations which may improve the performance or functionality of the Services or may improve
the quality of the Footage. The work, its timing, and the fees payable relating to such work shall be agreed by the
Parties prior to any alterations to or changes of the Services or the Designated Locations ("Monitoring Services").
Subject to the terms hereof, Flock will provide Agency with reasonable technical and on-site support and
maintenance services ("On -Site Services") in-person or by email at hello@flocksafety.com. Flock will use
commercially reasonable efforts to respond to requests for support.
2.10 Special Terms. From time to time, Flock may offer certain "Special Terms" related to guarantees, service and
support which are indicated in the proposal and on the order form and will become part of this Agreement. To the
extent that any terms of this agreement are inconsistent or conflict with the Special Terms, the Special Terms shall
control.
2.11 Changes to Platform, Flock Safety may, in its sole discretion, make any changes to any system or platform
that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Flock Safety's products or
services to its customers, (b) the competitive strength of, or market for, Flock Safety's products or services, (c) such
platform or system's cost efficiency or performance, or (ii) to comply with applicable law.
3. AGENCY RESTRICTIONS AND RESPONSIBILITIES
3.1 Agency Obligations. Upon creation of a User ID, Agency agrees to provide Flock with accurate, complete, and
updated registration information. Agency may not select as its User ID a name that Agency does not have the right
to use, or another person's name with the intent to impersonate that person. Agency may not transfer its account to
anyone else without prior written permission of Flock. Agency will not share its account or password with anyone,
and must protect the security of its account and password. Agency is responsible for any activity associated with its
account. Agency shall be responsible for obtaining and maintaining any equipment and ancillary services needed to
connect to, access or otherwise use the Services. Agency will, at its own expense, provide assistance to Flock,
including, but not limited to, by means of access to, and use of, Agency facilities, as well as by means of assistance
from Agency personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Flock to
perform its obligations hereunder, including, without limitation, any obligations with respect to Support Services or
any Installation Services.
3.2 Agency Representations and Warranties. Agency represents, covenants, and warrants that Agency will use
the Services only in compliance with this Agreement and all applicable laws and regulations, including but not
limited to any laws relating to the recording or sharing of video, photo, or audio content and retention thereof. To
the extent allowed by the governing law of the state mentioned in Section 10.6, or if no state is mentioned in Section
10.6, by the law of the State of Georgia, Agency hereby agrees to indemnify and hold harmless Flock against any
damages, losses, liabilities, settlements and expenses, including without limitation costs and attorneys' fees, in
connection with any claim or action that arises from an alleged violation of the foregoing, Agency's Installation
Obligations, or otherwise from Agency's use of the Services, Hardware and any Embedded Software, including any
claim that such actions violate any applicable law or third party right. Although Flock has no obligation to monitor
Agency's use of the Services, Flock may do so and may prohibit any use of the Services it believes may be (or
alleged to be) in violation of the foregoing.
4. CONFIDENTIALITY; AGENCY DATA; NON -AGENCY DATA
4.1 Confidentiality. Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party")
has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business
(hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Flock is
non-public information including but not limited to features, functionality, designs, user interfaces, trade secrets,
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intellectual property; business plans, marketing plans, works of authorship, hardware, customer lists and
requirements, and performance of the Flock Services. Proprietary Information of Agency includes non-public
Agency Data, Non -Agency End User Data, and data provided by Agency or a Non -Agency End User to Flock or
collected by Flock via the Unit, including the Footage, to enable the provision of the Services. The Receiving Party
shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Proprietary
Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are
reasonably necessary and appropriate to preserve and protect the Proprietary Information and the parties' respective
rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the
Proprietary Information of the other party to those employees or agents who require access in order to perform
hereunder. The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or
unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no
event will a party apply less than reasonable precautions to protect such Proprietary Information, and (ii) not to use
(except in performance of the Services or as otherwise permitted herein) or divulge to.any third person any such
Proprietary Information. Flock's use of the Proprietary Information may include processing the Proprietary
Information to send Agency Notifications or alerts, such as when a car exits Agency's neighborhood, or to analyze
the data collected to identify motion or other events.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving
Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by
Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party without
restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the
Disclosing Party.
Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to
any subpoena, summons, judicial order or other judicial or governmental process, provided that the Receiving Party
gives the Disclosing Party reasonable prior notice of such disclosure to obtain a protective order or otherwise oppose
the disclosure. For clarity, Flock may access, use, preserve and/or disclose the Footage to law enforcement
authorities, government officials, and/or third parties in the following instances: (1) to comply with a court order,
subpoena, or another form of valid legal process request, or when otherwise required by law or legal order to do so;
(2) to enforce this Agreement, including investigation of any potential violation thereof, (3) to detect, prevent or
otherwise address security, fraud or technical issues relating to the provision of services under this Agreement; or
(d) protect the rights, property or safety of Flock, its users, a third party, or the public, including respond to an
emergency situation, as required or permitted by law. Prior to any access, use, preservation and/or disclosure in the
foregoing instances, Flock shall provide Agency with advance written notice in a reasonably timely manner in order
to provide Agency with an opportunity to object or seek injunctive or other forms of judicial relief against the
request for data and/or proposed disclosure. Having received notice prior to data being deleted, Flock may store
Footage in order to comply with a valid court order but such retained Footage will not be retrievable without a valid
court order.
4.2 Agency and Non -Agency End User Data. As between Flock and Agency, all right, title and interest in the
Agency Data and Non -Agency End User Data, belong to and are retained solely by Agency. Agency hereby grants
to Flock a limited, non-exclusive, royalty -free, worldwide license to use the Agency Data and Non -Agency End
User Data and perform all acts with respect to the Agency Data and Non -Agency End User Data as may be
necessary for Flock to provide the Flock Services to Agency, including without limitation the Support Services set
forth in Section 2.9 above, and 'a non-exclusive, perpetual, irrevocable, worldwide, royalty -free, fully paid license to
use, reproduce, modify and distribute the Agency Data and Non -Agency End User Data as a part of the Aggregated
Data (as defined in Section 4.4 below). As between Flock and Agency, Agency is solely responsible for the
accuracy, quality, integrity, legality, reliability, and appropriateness of all Agency Data and Non -Agency End User
Data. As between Agency and Non -Agency End Users that have prescribed access of Footage to Agency, each of
Agency and Non -Agency End Users will share all right, title and interest in the Non -Agency End User Data. This
Agreement does not by itself make any Non -Agency End User Data the sole property or the Proprietary Information
of Agency. Flock will automatically delete Footage older than thirty (30) days. Agency has a thirty (30) day
window to view, save and/or transmit Footage to the relevant government agency prior to its deletion.
4.3 Feedback. If Agency provides any suggestions, ideas, enhancement requests, feedback, recommendations or
other information relating to the subject matter hereunder, Agency hereby assigns (and will cause its agents and
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representatives to assign) to Flock all right, title and interest (including intellectual property rights) with respect to or
resulting from any of the foregoing.
4.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Flock shall have the right to
collect and analyze data that does not refer to or identify Agency or any individuals or de -identifies such data and
other information relating to the provision, use and performance of various aspects of the Services and related
systems and technologies (including, without limitation, information concerning Agency Data and data derived
therefrom). For the sake of clarity, Aggregated Data is compiled anonymous data which has been stripped of any
personal identifying information. Agency acknowledges that Flock will be compiling anonymized and/or
aggregated data based on Agency Data and Non -Agency End User Data input into the Services (the "Aggregated
Data"). Agency hereby grants Flock a non-exclusive, worldwide, perpetual, royalty -free right and license (during
and after the Service Term hereof) to (i) use and distribute such Aggregated Data to improve and enhance the
Services and for other marketing, development, diagnostic and corrective purposes, other Flock offerings, and crime
prevention efforts, and (ii) disclose the Agency Data and Non -Agency End User Data (both inclusive of any
Footage) to enable law enforcement monitoring against law enforcement hotlists as well as provide Footage search
access to law enforcement for investigative purposes only. No rights or licenses are granted except as expressly set
forth herein.
5. PAYMENT OF FEES
5.1 Fees. Agency will pay Flock the first Usage Fee, the Implementation Fee and any fee for Hardware (as described
on the Order Form, together the "Initial Fees") as set forth on the Order Form on or before the 7th day following the
Effective Date of this Agreement. Flock is not obligated to commence the Installation Services unless and until the
Initial Fees have been made and shall have no liability resulting from any delay related thereto. Agency shall pay
the ongoing Usage Fees set forth on the Order Form with such Usage Fees due and payable thirty (30) days in
advance of each payment period. All payments will be made by either ACH, check, or credit card. The first month
of Flock Services corresponding to the first Usage Fee payment will begin upon the first installation of Hardware.
For Agencies who purchase ten (10) or more Units, in the event that only a portion of the Units are installed at the
first installation with additional Units to be installed at a later date, Usage Fees shall be calculated on a pro rata basis
corresponding to the then -installed Units. Agencies will be invoiced for the additional Units immediately upon
installation of the remaining Units.
5.2 Changes to Fees. Flock reserves the right to change the Fees or applicable charges and to institute new charges
and Fees at the end of the Initial Term or any Renewal Term, upon sixty (60) days' notice prior to the end of such
Initial Term or Renewal Term (as applicable) to Agency (which may be sent by email), Agency believes that Flock
has billed Agency incorrectly, Agency must contact Flock no later than sixty (60) days after the closing date on the
first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries
should be directed to Flock's customer support department. Agency acknowledges and agrees that a failure to
contact Flock within this sixty (60) day period will serve as a waiver of any claim Agency may have had as a result
of such billing error.
5.3 Invoicing, Late Fees; Taxes. Flock may choose to bill through an invoice, in which case, full payment for
invoices issued in any given month must be received by Flock thirty (30) days after the mailing date of the invoice.
Unpaid amounts are subject to a finance charge.of 1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of
Service. To the extent allowable by law or Agency regulations pertaining to tax-exempt entities, Agency shall be
responsible for all taxes associated with Services other than U.S. taxes based on Flock's net income.
5.4 No -Fee Term Access. Subject to Flock's record retention policy, Flock offers complimentary access to the
Flock System for thirty (30) days ("No Fee Term") to Agency when Non -Agency End Users intentionally prescribe
access or judicial orders mandate access to Non -Agency End User Data. Agency agrees to pay the Initial Fees and
Usage Fees according to Section 5.1 and will receive Flock's complimentary access to the Flock Service and
Footage for no additional cost. Should such access cause Flock to incur internal or out-of-pocket costs that are solely
the result of the access, Flock reserves the right to invoice these costs to Agency under Section 5.3 and Agency
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agrees to pay them. The complimentary No -Fee Term access to Flock Services shall survive the expiration or
termination of this Agreement for five (5) years unless Agency provides written notice of the intent to cancel access
to Flock Services,
6. TERM AND TERMINATION
6.1 Term. Subject to earlier termination as provided below, the initial term of this Agreement shall be for the period
of time set forth on the Order Form (the "Initial Term"). Following the Initial Term, unless otherwise indicated
on the Order Form, this Agreement will automatically renew for successive renewal terms for the greater of one
year and the length set forth on the Order Form (each, a "Renewal Term", and together with the Initial Term, the
"Service Term") unless either party gives the other party notice of non -renewal at least thirty (30) days prior to
the end of the then -current term.
6.2 Agency Satisfaction Guarantee. At any time during the agreed upon term, an Agency not fully satisfied with
the service or solution may self -elect to terminate their contract. Self -elected termination will result in a one-time fee
of actual cost of removal and labor, said cost not to exceed $500 per camera. Upon self -elected termination, a refund
will be provided, prorated for any fees paid for the remaining Term length set forth previously. Self -termination of
the contract by the Agency will be effective immediately. Flock will remove all equipment at Flock's own
convenience, within a commercially reasonable period upon termination. Advance notice will be provided.
6.3 Termination. In the event of any material breach of this Agreement, the non -breaching party may terminate this
Agreement prior to the end of the Service Term by giving thirty (3 0) days prior written notice to the breaching party;
provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the
expiration of such thirty -day period. Either party may terminate this Agreement, without notice, (i) upon the
institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other
party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do
business. Upon termination for Flock's material breach, Flock will refund to Agency a pro -rata portion of the pre-
paid Fees for Services not received due to such termination.
6.4 Effect of Termination. Upon any termination of the Service Term, Flock will collect all Units, delete all
Agency Data, terminate Agency's right to access or use any Services, and all licenses granted by Flock hereunder
will immediately cease. Agency shall ensure that Flock is granted access to collect all Units and shall ensure that
Flock personnel does not encounter Hazardous Conditions in the collection of such units. Upon termination of this
Agreement, Agency will immediately cease all use of Flock Services.
6.5 No -Fee Term. The initial No -Fee Term will extend, after entering into this Agreement, for thirty (30) days from
the date a Non -Agency End User grants access to their Footage and/or Notifications. In expectation of repeated non -
continuous No -Fee Terms, Flock may in its sole discretion leave access open for Agency's Authorized End Users
despite there not being any current Non -Agency End User authorizations. Such access and successive No -Fee
Terms are deemed to be part of the No -Fee Term. Flock, in its sole discretion, can determine not to provide
additional No -Fee Terms or can impose a price per No -Fee Term upon thirty (30) days' notice. Agency may
terminate any No -Fee Term or access to future No -Fee Terms upon 30 days' notice.
6.6 Survival. The following Sections will survive termination: 2.4, 2.5, 3, 4, 5 (with respect to any accrued rights to
payment), 5.4, 6.5, 7.4, 8.1, 8.2, 8.3, 8.4, 9.1 and 10.5.
7. REMEDY; WARRANTY AND DISCLAIMER
7.1 Remedy. Upon a malfunction or failure of Hardware or Embedded Software (a "Defect"), Agency must first
make commercially reasonable efforts to address the problem by contacting Flock's technical support as described
in Section 2.9 above. If such efforts do not correct the Defect, Flock shall, or shall instruct one of its contractors to
repair or replace the Hardware or Embedded Software suffering from the Defect. Flock reserves the right in their
sole discretion to refuse or delay replacement or its choice of remedy for a Defect until after it has inspected and
tested the affected Unit provided that such inspection and test shall occur within seventy-two (72) hours after
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Agency notifies the Flock of a Defect. In the event of a Defect, Flock will repair or replace the defective Unit at no
additional cost. In the event that a Unit is lost, stolen, or damaged, Flock agrees to replace the Unit at a fee
according to the then -current Reinstall Policy (https://www.flocksafety.com/reinstall-fee-schedule). Agency shall
not be required to replace subsequently lost, damaged or stolen Units, however, Agency understands and agrees that
functionality, including Footage, will be materially affected due to such subsequently lost, damaged or stolen units
and that Flock will have no liability to Agency regarding such affected functionality nor shall the Usage Fee or
Implementation Fees owed be impacted.
7.2 Exclusions. Flock will not provide the remedy described in Section 7.1 above if any of the following exclusions
apply: (a) misuse of the Hardware or Embedded Software in any manner, including operation of the Hardware or
Embedded Software in any way that does not strictly comply with any applicable specifications, documentation, or
other restrictions on use provided by Flock; (b) damage, alteration, or modification of the Hardware or Embedded
Software in any way; or (c) combination of the Hardware or Embedded Software with software, hardware or other
technology that was not expressly authorized by Flock.
7.3 Warranty. Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the
Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation
Services in a professional and workmanlike manner. Upon completion of any installation or repair, Flock shall clean
and leave the area in good condition. Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by Flock or by third -party providers, or because of other causes beyond
Flock's reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail
of any scheduled service disruption.
7.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 7.1 ABOVE IS AGENCY'S SOLE REMEDY, AND
FLOCK'S SOLE LIABILITY, WITH RESPECT TO DEFECTIVE HARDWARE AND/OR EMBEDDED
SOFTWARE, THE FLOCK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE
SERVICES AND INSTALLATION SERVICES ARE PROVIDED "AS IS" AND FLOCK DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT
.THIS DISCLAIMER OF SECTION 7.4 ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING
LAW OF THE STATE MENTIONED IN SECTION 10.6, OR IF NO STATE IS MENTIONED IN SECTION 10.6,
BY THE LAW OF THE STATE OF GEORGIA.
7.5 Insurance. Flock and Agency will each maintain commercial general liability policies with policy limits
reasonably commensurate with the magnitude of their business risk. Certificates of Insurance will be provided upon
request.
7.6 Force Majeure. Flock Safety is not responsible nor liable for any delays or failures in performance from any
cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war,
terrorist acts, acts or omissions of third -party technology providers, riots, fires, earthquakes, floods, power
blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or
omissions of Agency or any Authorized End User.
8. LIMITATION OF LIABILITY AND INDEMNITY
8.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FLOCK AND ITS
SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL HARDWARE AND TECHNOLOGY SUPPLIERS),
OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY, PRODUCT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE
OR FOR LOSS OR INACCURACY, INCOMPLETENESS OR CORRUPTION OF DATA OR FOOTAGE OR
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COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF
BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES; (C) FOR ANY MATTER BEYOND FLOCK'S ACTUAL KNOWLEDGE OR REASONABLE
CONTROL INCLUDING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE OR
IDENTIFY AND/OR CORRELATE A LICENSE PLATE WITH THE FBI DATABASE; (D) FOR ANY PUBLIC
DISCLOSURE OF PROPRIETARY INFORMATION MADE IN GOOD FAITH; (E) FOR CRIME
PREVENTION; OR (F) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH
ALL OTHER CLAIMS, EXCEED THE FEES PAID AND/OR PAYABLE BY AGENCY TO FLOCK FOR THE
SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR
OMISSION THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FLOCK HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF AN EMERGENCY,
AGENCY SHOULD CONTACT 911 AND SHOULD NOT RELY ON THE SERVICES.THIS LIMITATION OF
LIABILITY OF SECTION 8 ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF
THE STATE MENTIONED IN SECTION 10.6, OR IF NO STATE IS MENTIONED IN SECTION 10.6, BY THE
LAW OF THE STATE OF GEORGIA.
8.2 Additional No -Fee Term Requirements. IN NO EVENT SHALL FLOCK'S AGGREGATE LIABILITY, IF
ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THE COMPLIMENTARY NO -FEE TERM AS
DESCRIBED IN SECTION 6.5 EXCEED $100, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. Except for
Flock's willful acts, Agency agrees to pay for Flock's attorneys' fees to defend Flock for any alleged or actual
claims arising out of or in any way related to the No -Fee Term.
8.3 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and
omissions of its own employees, deputies, officers, or agents, in connection with the performance of their official
duties under this Agreement. Each Party to this Agreement shall be liable (if at all) only for the torts of its own
officers, agents, or employees that occur within the scope of their official duties. Agency will not pursue any claims
or actions against Flock's suppliers.
8.4 Indemnity. Agency hereby agrees to indemnify and hold harmless Flock against any damages, losses, liabilities,
settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or
action that arises from an alleged violation of Section 3.2, a breach of this Agreement, Agency's Installation
Obligations, Agency's sharing of any data in connection with the Flock system, Flock employees or agent or Non -
Agency End Users, or otherwise from Agency's use of the Services, Hardware and any Software, including any
claim that such actions violate any applicable law or third party right. Although Flock has no obligation to monitor
Agency's use of the Services, Flock may do so and may prohibit any use of the Services it believes may be (or
alleged to be) in violation of Section 3.2 or this Agreement.
9. RECORD RETENTION
9.1 Data Preservation. The Agency agrees to store Agency Data and Non -Agency End User Data in compliance
with all applicable local, state and federal laws, regulations, policies and ordinances and their associated record
retention schedules. As part of Agency's consideration for paid access and no -fee access to the Flock System, to the
extent that Flock is required by local, state or federal law to store the Agency Data or the Non -Agency End User
Data, Agency agrees to preserve and securely store this data on Flock's behalf so that Flock can delete the data from
its servers and, should Flock be legally compelled by judicial or government order, Flock may retrieve the data from
Agency upon demand.
10. MISCELLANEOUS
10.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and
effect and enforceable.
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10.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Agency except with Flock's
prior written consent. Flock may transfer and assign any of its rights and obligations, in whole or in part, under this
Agreement without consent.
10.3 Entire Agreement. This Agreement, together with the Addendum, Order Form(s), the then -current Reinstall
Policy (https://www.flocksafety.com/reinstall-fee-schedule), and Deployment Plan(s), are the complete and
exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and
oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that
all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
None of Agency's purchase orders, authorizations or similar documents will alter the terms of this Agreement, and
any such conflicting terms are expressly rejected.
10.4 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement
and Agency does not have any authority of any kind to bind Flock in any respect whatsoever.
10,5 Costs and Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing
party will be entitled to recover costs and attorneys' fees.
10.6 Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without
regard to its conflict of laws provisions. In the event that any dispute rises under or either party brings any action
against the other under this Agreement, the parties agree that jurisdiction for such dispute or action shall be vested
exclusively in the state courts of California in the County Santa Clara or in the United States District Court for the
Northern District of California. The parties agree that the United Nations Convention for the International Sale of
Goods is excluded in its entirety from this Agreement.
10.7 Publicity. Unless otherwise indicated on the Order Form, Flock has the right to reference and use Agency's
name and trademarks and disclose the nature of the Services provided hereunder in each case in business and
development and marketing efforts, including without limitation on Flock's website.
10.8 Export. Agency may not remove or export from the United States or allow the export or re-export of the Flock
IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the
United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets
Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services,
the Hardware, the Embedded Software and Documentation are "commercial items" and according to DFAR section
252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software
documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, or disclosure of such commercial software or commercial software
documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be
prohibited except to the extent expressly permitted by the terms of this Agreement.
10.9 Headings. The headings are merely for organization and should not be construed as adding meaning to the
Agreement or interpreting the associated Sections.
10.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
10.11 Authority. Each of the below signers of this Agreement represent that they understand this Agreement and
have the authority to sign on behalf of and bind the organizations and individuals they are representing.
10.12 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given
when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-
mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt,
if sent by certified or registered mail, return receipt requested.
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ADD:E;NDIU M:
DATA PROCESSING
AGREEMENT
THIS DATA PROCESSING AGREEMENT ("DPA") is between Town of Los Altos Hills ("LAH")„on its behalf and on behalf of its
subsidiaries and affiliates (each subsidiary a v'data exporter"), and <ALPR Vendor> ("Vendor").
1.0 Purpose of the DPA. This DPA is intended to satisfy the requirement for an obligatory contract between the processor and
controller for the onward transfer of personal data from the European Union (or the United Kingdom) to the United States provided
by LAH toVendoras well as to reflect the Parties' agreement with regard to the Processing of data, including Personal Data, in
accordance with the requirements of Applicable Laws. Vendor agrees to comply with the provisions of this DPA when processing
Personal Data in connection with the provision of services ("Services") pursuant to the Services Agreement/GOVERNMENT
AGENCY CUSTOMER AGREEMENT entered into by and between the parties hereto on the (the "Master
Agreement") to LAH. In the event that a term, provision, requirement or obligation of this DPA is inconsistent with or contradicts
a term, provision, requirement or obligation of the Master Agreement, the parties specifically Intend that the DPA will control.
2.0 Definitions. For the purpose of this DPA, these terms shall mean the following:
2.1 "Applicable Laws" means all federal, state and foreign data protection, privacy and data security laws Including, without
limitation, the General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR"), and the California Consumer Privacy Act of
2018, Cal. Civ. Code § 1798.100-.199 ("CCPA").
2.2 "Authorized Personnel" means (a) Vendor employees who have a need to know or otherwise access Personal Data for the
purposes of performing applicable Services; and (b) Vendor's contractors, agents, and auditors who have a need to know or otherwise
access Personal Data to enable Vendor to perform its obligations under this DPA, and who are bound in writing by confidentiality and
other obligations sufficient to protect Personal Data in accordance with the terms and conditions of this DPA.
2.3 "Customers" means the legal entity with to whom LAH has entered Into agreement to provide product or services.
2.4 "Personal Data" means any non -production data relating to an Identified or identifiable person that is submitted to, or
collected by, Vendor in connection with the Services or in connection with the provision of the Services to LAH, or a LAH affiliate,
when such data is protected as "personal data" or "personally identifiable information" or a similar term under Applicable Laws.
Notwithstanding anything set forth in the Master Agreement, Personal Data is never excluded from Vendor's obligations of
confidentiality with respect to Confidential Information as set forth in the Master Agreement, or otherwise.
2.5 "Process" or "Processing” means any operation or set of operations which is performed upon Personal Data, whether or
not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use,
disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
2,6 "Security Breach" means (a) any act or omission by Vendor that compromises either the security, confidentiality, or integrity
of Personal Data or the physical, technical, administrative, or organizational safeguards put in place by Vendor (or any Authorized
Personnel), or (b) a breach or alleged breach of this DPA relating to such privacy and data security practices, Without limiting the
foregoing, a compromise shall include any unauthorized access to or disclosure or acquisition of Personal Data.
2.7 "Sell" means the exchange of Personal Data for monetary or other valuable consideration, or as otherwise defined in the
CCPA or U.S. federal law.
2.8 "Standard Contractual Clauses" means the those clauses for the transfer of Personal Data from the EEA to Processors
established in non -EEA countries that do not provide an adequate level of data protection approved by EC Commission Decision of
5 February 2010, as currently set out at: http://ec.europa.eu/iustice/data-protection/international-transfers/transfer/index en htm.
3.0 Processing Personal Data.
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3.1 General. Vendor shall process Personal Data in accordance with LAH's written instructions (unless expressly waived in a
written requirement) provided during the term of this DPA. In the event Vendor reasonably believes there is a conflict with any
Applicable Law and LAH's Instructions, Vendor will Inform LAH immediately and the Parties shall cooperate in good faith to resolve
the conflict and achieve the goals of such instruction. Vendor will not Sell Personal Data, and will not collect, retain, use, disclose or
otherwise Process Personal Data for any purpose other than for the specific purpose of performing the Services, obligations, or actions
for the benefit of the Town as specified in the Master Agreement.
3.2 GDPR.
(a) To the extent that Vendor will process any Personal Data that is subject to GDPR, Vendor shall process such Personal Data (a)
in the EEA or in a country considered by GDPR as providing adequate data privacy protection, or (b) outside the EEA, pursuant
to the Standard Contractual Clauses, which are hereby incorporated by reference into this DPA, and Vendor represents and
warrants that it will comply with the Standard Contractual Clauses. For the purposes of the Standard Contractual Clauses, the
following shall apply:
I. 'Data exporter' is LAH
U. 'Data importer' is Vendor
iii. 'Data subjects' are employees of Customer
iv. 'Categories of data' are name, and email address, and phone numbers of Data subjects
V. 'Special categories of data' is 'none;' and
vi. 'Processing operations' are the performance of the Services under the Agreement.
For the purposes of Appendix 2 of the Standard Contractual Clauses, the description of the technical and organizational security
measures are those described in Attachment 7 hereto.
(b) Without limiting the foregoing, Vendor shall: (i) assist, to a reasonable extent, the fulfilment of LAH's obligations to respond to
requests for exercising a data 'subject's rights with respect to Personal Data under Chapter III of the GDPR; (ii) assist, to a
reasonable extent, LAH in complying with Its obligations with respect to Personal Data pursuant to Articles 32 to 36 of the GDPR;
(III) make available to LAH all information necessary to demonstrate compliance with Its obligations as a processor specified in
Article 28 of the GDPR; (iv) maintain a record of all categories of processing activities carried out on behalf of LAH in accordance
with Article 30(2) of the GDPR; and (v) cooperate, on request, with an EU supervisory authority in the performance of the services
under the Master Agreement,
3.3 Compliance with Applicable Laws. Without prejudice to any of the other terms in this DPA Vendor will ensure that the
Personal Data will be provided with a standard of protection that is comparable to the protection under Applicable Law and any
requirements set out in advisory or other written guidelines Issued from time to time by LAH, Including specifically Vendor shall:
(a) Not use or disclose Personal Data for any purpose other than those purposes Instructed as specified in the DPA;
(b) Not Sell Personal Data;
(c) Only use and disclose Personal Data in a manner and to the extent permitted in this DPA or as otherwise agreed between
the Parties in writing and observe all limitations as to such use or disclosure as LAH may notify to Vendor;
(d) Make a reasonable effort to ensure that Personal Data is accurate and complete if Personal Data Is likely to be (1) used by
Vendor to make a decision that affects the individual to whom Personal Data relates; or (ii) disclosed by Vendor to another organization
(if permitted by LAH in writing);
(e) Employ reasonable administrative, physical and technical safeguards (including safeguards against worms, Trojan horses,
and other disabling or damaging codes) to ensure that Personal Data is afforded protection in accordance with Applicable Law as
would be appropriate based on the nature of the Personal Data;
(f) Ensure that Personal Data is kept secure and in an encrypted form, and shall use the standard industry security practices
and systems applicable to the use of Personal Data to prevent, and take prompt and proper remedial action against unauthorized
access, copying, modification, storage, reproduction, display or distribution of Personal Data;
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(g) Cease to retain documents containing Personal Data, or remove the means by which Personal Data can be associated with
particular individuals as soon as it is reasonable to assume that (1) the specified purposes are no longer being served by the Vendor's
retention of Personal Data; and (ii) retention is no longer necessary for legal or business purposes;
(h) If applicable, ensure that its Authorized Personnel are aware of the obligations specified under this DPA and agree to abide
by the same.
3.4 Authorized Personnel: Subprocessors. Vendor shall ensure that Authorized Personnel have committed themselves to
confidentiality or are under an appropriate statutory obligation of confidentiality. During the term of each Authorized Personnel's
employment by Vendor, Vendor shall at all times cause such Authorized Personnel to abide by Vendor's obligations under this DPA.
In addition, Vendor is authorized to use subprocessors provided that Vendor shall enter into an agreement with the subprocessor
containing data protection obligations that are at least as restrictive as the obligations under this DPA. Vendor shall remain liable for
any act or omission of a subprocessor that does not comply with the requirements of this DPA. Vendor hereby represents and
warrants that in the performance of Services it employs the use of only those subprocessors set forth in Attachment 2, and will
provide sixty (60) days' advance written notice of its intent to remove, add or otherwise change any such subprocessors.
3.5 Security Breaches. Vendor will promptly, but no later than forty-eight (48) hours, after becoming aware of a Security Breach
(a) notify LAM of the Security Breach; (b) investigate the Security Breach; (c) provide LAH with details about the Security Breach; and
(d) make best efforts to prevent a recurrence of the Security Breach. Vendor agrees to cooperate in LAH's handling of the matter by:
(i) providing reasonable assistance with LAH's investigation; and (ii) making available relevant records, logs, files, data reporting, and
other materials related to the Security Breach's effects on LAH, as required to comply with Applicable Law.
3.6 CJIS Compliance. Please provide a statement that confirms the Vendor shall provide an ALPR System that shall adhere to
all guidelines set forth by the Criminal Justice Information Services ("CJIS") Agency. These guidelines were established by the U.S.
Department of Justice, Federal Bureau of Investigation and can be found utilizing the following link: https://www.fbi.gov/services/cjis/cjis-
security-policy-resource-center. This shall include all data In transit and at rest.
4.0 Audits and Certifications. Within thirty (30) days of LAH's written request, and no more than once annually and subject to
the confidentiality obligations set forth in the Master Agreement (unless such information is reasonably required to be disclosed as
a response to a data subject's inquiries under Applicable Law), Vendor shall make available to LAH (or a mutually agreed upon third -
party auditor) information regarding Vendor's compliance with the obligations set forth in this DPA, including reasonable
documentation. Upon Vendor's reasonable written request, Vendor will promptly, and In no evenf more than thirty (30) days from the
date of the written request, provide reasonable assistance to LAH to explain these certifications and audits.
5.0 Miscellaneous.
5.1 In the event of any conflict or inconsistency between this DPA and Applicable Law, Applicable Law shall prevail, provided
LAH has notified Vendor of new changes that are applicable. In the event of any conflict or inconsistency between this DPA and the
Master Agreement, the terms of this DPA shall prevail.
5.2 In the event any provision of this DPA, in whole or in part, is invalid, unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, such provision will be replaced, to the extent possible, with a provision which accomplishes the original
business purposes of the provision in a valid and enforceable manner, and the remainder of this DPA will remain unaffected and in full
force.
5.3 Limitation of Liability. Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this
DPA and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, shall be
subject to the limitations and exclusions of liability set out in the section of the Master Services Agreement, entitled 'Limitation of
Liability' and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under
the Master Agreement (including this DPA).
5.4 This DPA may be executed in several counterparts, each of which shall be deemed and original and all of which shall
constitute one and the same instrument, and shall become effective when counterparts have been signed by each of the Parties and
delivered to the other Parties; it being understood that all Parties need not sign the same counterparts. Signatures of the Parties
transmitted via facsimile or other electronic means shall be deemed to be their original signatures for all purposes,
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IN WITNESS WHEREOF, the parties hereto have caused this DPA to be executed by their authorized representatives as of the day and year
written below.
M
By:
Name:
Title:
Vendor
By:
Name:
Title:
Date: Date:
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ATTACHMENTI
APPENDIX 2
to the Standard Contractual Clauses
1.0 Purpose; Confidential Information; Order of Precedence. This Appendix shall apply to Vendor's provision of Services
generally pursuant to the Master Agreement, as defined in the DPA. To the extent not already defined in the Master
Agreement the term "Confidential Information," as used in this Appendix shall mean all Information communicated to it by
the other in connection with the Master Agreement and Identified as "Confidential," or a similar phrase, (b) all information
communicated to Vendor that reasonably should have been understood, because of confidentiality, descriptions or similar
legends, the circumstances of disclosure or the nature of the information Itself, to be confidential to LAH, and (d) Personal
Data, as defined in the DPA. To the extent this Appendix conflicts with any previously agreed upon security standards or
requirements in the Master Agreement or otherwise, in relation to Vendor's performance of Services for LAH, the stricter
standards or requirements shall apply.
2.0 Vendor Data Security Program. Vendor agrees that it engages in the handling or transmission of LAH's Confidential
Information, and will therefore maintain a data security program that meets or exceeds the expectations defined in this
Appendix 2. Vendor agrees to allow LAH to perform one information security audit annually, upon at least thirty (30) days'
prior written notice, that consists of a review of Vendor's: (a) information security policies, (b) information security incident
response plan, (c) vulnerability management procedures, (d) disaster recovery documentation, (e) network perimeter
vulnerability scans, (f) web application vulnerability scans, (g) and location(s) where LAH Confidential Information is
processed.
3.0 Information Handling, Protection, and Disposal. Vendor represents and warrants that any medium and/or media that
contain LAH Confidential Information for the purposes of delivery or transfer between LAH and Vendor are sufficiently
secured and protected to prevent disclosure or examination by any unauthorized party. LAH acknowledges that neither
Vendor nor the Software is a primary system of record of LAH Data, and LAH shall regularly backup any files for which it
intends as such.
3.1 Vendor will immediately revoke access privileges to LAH Confidential Information for separated (either voluntarily
or involuntarily) Vendor personnel following such separation.
3.2 Vendor will ensure that LAH Confidential Information will be encrypted In transit and at rest using a method or tool
which encrypts the LAH Confidential Information using an encryption algorithm of sufficient strength to render the
LAH Confidential Information unreadable and unintelligible.
3.3 Vendor will properly dispose of any LAH Confidential Information, as well as any documents and/or media that
contain any LAH Confidential Information. Vendor defines "properly dispose of LAH Confidential Information" as
being in the state that is beyond recognition and beyond reconstruction. Specifically, Vendor will destroy data
utilizing one of the following methods:
3.3.1 Format and overwrite the media with meaningless data (either with some fixed pattern (e.g. binary
zeroes) or random data; there are numerous software utilities that are designed to securely remove files
from disks)
3.3.2 Degauss the media (degaussing equipment is available for magnetic tapes and hard disks).
3.3.3 Destroy the media by crushing, incinerating, cross -cut shredding, or melting.
3.4 Upon request and within seventy-two (72) hours of destruction, Vendor will notify LAH that the LAH Confidential
Information has been destroyed. Further, LAH shall maintain the right to request proof of data destruction after receipt of the
destruction notification from Vendor. Vendor will provide LAH with proof of data destruction within seventy-two (72) hours of
LAH's request.
3.5 After the termination or expiration of the Master Agreement, Vendor shall continue to protect any LAH Confidential
Information in Vendor's possession in accordance with the Master Agreement, the Clauses, and this Appendix 2.
4.0 Security Awareness and Compliance. Vendor provides annual information security awareness training to its personnel
assigned to provide Services to LAH. Vendor shall make the documentation available for review by LAH upon request.
5.0 Personnel Security and Suitability. Before assigning any Vendor agent, or employee to perform Services, a background
check will be conducted. If, at any time, it is discovered that a current or prospective Vendor agent, or employee being considered for
assignment to perform Services has a criminal record that includes a felony, Vendor will be responsible for determining whether
assigning that current or prospective Vendor agent, employee or subcontractor would be consistent with the safe and efficient
performance of the Services, taking into consideration any and all appropriate factors, such as: (i) the number, nature, and gravity of
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the offense(s) for which the individual was convicted and their relevance to the job duties to LAH under the Agreement, and (ii) the
elapsed time and employment history since the most recent conviction and/or completion of the sentence. If a current or prospective
Vendor agent, or employee attempts to withhold or falsify information pertaining to previous criminal convictions, that individual will be
disqualified from any assignment to perform Services. In performing background checks for persons being considered for assignment
to perform Services for LAH, Vendor is required to comply with all applicable laws.
6.0 Vulnerability Management,
6.1 Vendor will develop, maintain, and adhere to documented procedures for network vulnerability management,
including quarterly scanning of systems which transmit, process, or store any LAH Confidential Information.
6.2 Vulnerability management procedures shall define timely remediation of detected vulnerabilities.
6.3 Vendor will accurately log all activities of network vulnerability scanning and remediation, and maintain
appropriate documentation of sufficient detail that demonstrates reasonable, good faith efforts to remediate vulnerabilities on systems
which contain or have the potential to contain any LAH Confidential Information.
6.4 Vendor will develop, maintain, and adhere to documented procedures for web application vulnerability
management. Those procedures will include automated inspection or scanning of web applications transmitting, processing, or storing
any LAH Confidential Information for OWASP Top 10.
6.5 Vendor will accurately log all activities of web application vulnerability scanning and remediation, and maintain
appropriate documentation of sufficient detail that demonstrates reasonable, good faith efforts to remediate vulnerabilities in web
applications which transmit, process, or store any LAH Confidential Information.
LAH (Data Exporter) Vendor (Data Importer)
By:
Name:
Title:
By:
Name:
Title:
Date: Date:
a
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ATTACHMENT 2
SUBPROCESSORS
Subproeessor's Name
Address
Role
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
[INSERT]
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