**IMPORTANT** PLEASE READ THIS MASTER LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING. BY CLICKING THE “I AGREE” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. ALL CAPITALIZED TERMS USED IN THIS AGREEMENT HAVE THE MEANING SET FORTH IN SECTION 1 BELOW. THE END USER’S USE OF THE LICENSED SOFTWARE IS SUBJECT TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DO NOT AGREE” BUTTON AND MAY NOT USE THE LICENSED SOFTWARE.
Master License Agreement
This Agreement is considered executed and made and entered into as of the date of execution by Licensee of this Agreement (the “Effective Date”) and is by and between Inmate Money Consulting & Software, Inc., a Wisconsin corporation (“Licensor”) and the party executing this Agreement in order to use the Licensed Software.
Section 1 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
- “Agreement” means this Master License Agreement.
- “Confidential Information” means any business contact, potential business affiliation, information, technical data, or know-how, including by example and not limitation but not limited to, that which is related to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances provided by one party. Confidential Information does not include the fact that Licensor and Licensee have entered into a business relationship or information, technical data or know-how which (i) is in possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; (iii) is approved for release in writing by the disclosing party; (iv) information that qualifies as a Trade Secret.
- “Cure Period” means the period of time given to a party to cure any breach of a material term of the Agreement. The Cure Period is thirty (30) days following receipt of the written notice specifying the breach. If such breach is not reasonably curable within such thirty (30) day period, the non-breaching party shall not unreasonably withhold approval of a longer Cure Period provided the breaching party promptly commences to cure such breach and continues to diligently pursue a cure of such breach. The breaching party will provide written notice to the non-breaching party once the breaching party believes it has substantially cured the breach that were described in the breach notice to the breaching party. Within fourteen (14) days of receipt of the notice of cure, the non-breaching party shall provide written certification (i) such breaches have been remedied or (ii) such breaches are not remedied and describe in reasonable detail the breaches that remain and whether or not the Cure Period shall be extended or the Agreement shall be terminated. The Cure Period ends upon the earlier of: (1) such thirty (30) days or such longer cure period as the non-breaching may approve as provided above; and (2) by Licensee’s written certification of cure or termination.
- “Licensed Service Plan” means the service plan chosen by Licensee as indicated by its selection on the Licensor’s website.
- “Licensed Software” means the software designated as such in the Exhibit A and the Licensed Service Plan.
- “Licensee” means the entity that as party to this Agreement will be granted a license herein.
- “Related Parties” means the members, agents, employees and/or assigns of Licensor.
- “Trade Secret” means any and all documents or information relating to Licensor or the Licensee that meet the definition of a Trade Secret under Section 134.90, Wisconsin Statutes. Examples of Trade Secrets may include, but are not limited to: software architecture, formulas, patterns, compilations, programs, devices, methods, techniques or processes, product costs and mark-up information, and service costs and mark-up information.
In addition to the foregoing, other terms that are used as defined terms in this Agreement shall have the meaning ascribed to them in the section of the Agreement in which said terms appear.
Section 2 Grant of License
- Initial Grant. Licensor grants to Licensee, and Licensee hereby accepts, a personal non-exclusive, object code license to use the Licensed Software in the geographic regions where the Licensee operates its business, according to the terms of this Agreement (“Grant of License”). Any license granted under this Agreement is conditioned on Licensee remaining in compliance with all terms of this Agreement including Licensee’s full and continued payment of all fees and costs under this Agreement.
- Identity of Licensee. The identity of the Licensee is unique and material to this Agreement. Therefore, subject to permitted assignments under Section 12(c), use of the Licensed Software by the Licensee is intended to be limited to the entity or entities as identified as Licensee above.
- The rights granted Licensee under this Agreement are limited to the express terms hereof. Specifically, no right is granted to Licensee to sell, reproduce, publish, license, distribute, disseminate, sublicense, rent, and/or lease any portion of the Licensed Software. Further, under no circumstances does Licensor grant to Licensee any right to reverse engineer, decompile, disassemble, modify, translate, or make any attempts to discover the source code of the Licensed Software. The rights granted to Licensee herein are restricted for use solely by Licensee.
Section 3 Fees
- License Fees. Licensee shall pay all fees and charges related to the Grant of License to allow continued use of the Licensed Software as and when due in accordance to the Licensed Service Plan in addition to those provided in Exhibit A (“License Fee”). The License Fee is subject to increase upon written notice to Licensee no more than annually or in the manner provided in Section 3(c).
- Implementation Implementation of the Licensed Software for use by Licensee will be detailed to Licensee by Licensor after Licensor has completed discovery sessions with Licensee. Licensee shall pay all Implementation Fees in accordance with Exhibit A.
- Expansion of Operations by Licensee. If the Licensee acquires one or more subsidiaries, adds one or more corporate divisions within its existing corporate structure, the population of inmates that Licensee services substantially increases, or if the Licensee assigns the Agreement or the Licensed Software to any third party under Section 12(c), Licensor reserves the right to increase proportionately the fees charged under this Section 3 commensurate with such expansion of the Licensee.
- Billing Disputes. It is Licensee’s responsibility to notify Licensor in writing if Licensee disputes any billing entry or computation. All entries will be deemed to be fair and correct by both Licensor and Licensee if no written notice of dispute is received by Licensor within one (1) year of the date of the invoice. Unless charged in error, under no circumstance under this Agreement will Licensee receive back from Licensor any fees paid by Licensee to Licensor under this Section 3.
- Licensee shall be responsible for all sales, use, value added or other similar taxes.
Section 4 Term of License
The term of the Grant of License under Section 2 shall become effective upon Licensee’s execution of this Agreement and full payment of the Implementation Fees under Section 3 and shall continue for a period of one (1) year thereafter (“Term”). The Grant of License remains conditional and is contingent on timely payment of all obligations by Licensee to Licensor in accordance with this Agreement. The parties may seek to renew this Agreement for additional one or more one (1) year Terms. In order to renew, the party desiring renewal must inform the other in writing of its desire to renew at least three (3) months prior to expiration, and the other party must confirm such renewal in writing at least one (1) month prior to expiration. Expiration without renewal is termination.
Section 5 Termination and/or Expiration of Terms
- Termination by Licensee. Licensee may terminate the Agreement upon written notice to Licensor if Licensor breaches any material term of this Agreement and fails to substantially correct the breach within the Cure Period. Licensee shall pay to Licensor within ten (10) days after the end of the Cure Period any balance due of the License Fees and Implementation Fees (if any) payable under this Agreement prorated for the part of the Term prior to termination. Licensor shall refund License Fees (if any) already paid by Licensee that relate to the part of the Term following the termination.
(b) Termination by Licensor. Licensor may terminate the Agreement or any Grant of License granted hereunder upon written notice to Licensee, if Licensee breaches a material term of this Agreement (including the payment obligations under Section 3) and fails to cure the breach within the Cure Period. All unpaid fees for the then current Term shall be accelerated, and Licensee shall pay these fees to Licensor within ten (10) days of Licensor’s written notice of termination.
(c) Effect of Termination or Expiration. Upon termination of this Agreement for any reason or upon the expiration of the then current Term, all rights granted to Licensee under this Agreement cease including the Grant of License under Section 2, including any perceived right the Licensee believes may remain to access the Licensed Software after termination. Notwithstanding anything else herein, for a period of thirty (30) days, Licensee may use the Licensed Software solely to retrieve its data stored by the Licensed Software following termination. Licensee’s rights and obligations under this Section and under Sections 2(c), 3, 5(c), 6, 7, 8, 9, 10, 11, and 12 shall survive termination of this Agreement.
Section 6 “AS IS” Warranty
- THE LICENSED SOFTWARE, SERVICES BY LICENSOR RELATED TO THE LICENSED SOFTWARE, AND ANYTHING, WHETHER TANGIBLE OR OTHERWISE, ARISING FROM OR RELATING TO THE LICENSED SOFTWARE OR OTHERWISE PROVIDED OR FACILITATED BY LICENSOR (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES THAT ARE PROVIDED BY ANY OF LICENSOR’ SPONSORS, ADVERTISERS, LINKED SITES, CONTENT PROVIDERS OR SERVICE PARTNERS ARE PROVIDED SOLELY BY SUCH ENTITY OR THE MANUFACTURER OF THAT PRODUCT AND/OR SERVICE, AND NOT BY LICENSOR.
- THE PARTIES INTEND THAT THE LIMITED REMEDIES AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 7 Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR RELATED PARTIES BE LIABLE FOR ANY OF THE FOLLOWING: (I) DIRECT DAMAGES IN EXCESS OF THE ACTUAL FEE(S) PAID BY LICENSEE FOR THE THEN CURRENT TERM UNDER SECTION 3 OR, (II) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLES) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR THE SERVICES OR LICENSED SOFTWARE PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY OR ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) THE PARTIES INTEND THAT THE LIMITATIONS AND DISCLAIMERS CONTAINED IN THIS SECTION SHALL BE VALID AND ENFORCED EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
Section 8 Effect of Regulation
Should any local, state, or national regulatory authority having jurisdiction over Licensee enter a valid and enforceable order upon Licensee or change in applicable law or regulations (“Change in Law”) that has the effect of changing or superseding any term or condition of this Agreement, such Change in Law shall be complied with, but only so long as such Change in Law remains in effect and only to the extent actually necessary under the law. In such event, this Agreement shall remain in effect, unless the effect of the Change in Law is to deprive Licensee of a material part of its Agreement with Licensor. In the event this Change in Law results in depriving Licensee of materials or raising Licensee’s costs beyond that defined in this Agreement, Licensee shall have the right to rescind all or part of this Agreement (if such a rescission is practical) or to end the Term upon thirty (30) days written prior notice to Licensor. Should the Agreement be terminated under such circumstances, Licensee shall be absolved of all penalties and financial assessments related to cancellation of the Agreement and to any future payment obligations due to Licensor subsequent to such cancellation. Under no circumstances shall Licensor be obligated to return any payments made by Licensee under this Agreement prior to the date of such cancellation and/or recession.
Section 9 Indemnification
By Licensee. Licensee shall indemnify and hold Licensor and its Related Parties harmless from any claim, loss, cost, expense, demand, or damage, including reasonable attorneys’ fees, arising directly or indirectly out of claims by third parties arising out of the Licensee’s use of the Licensed Software except to the extent the harm is attributable to the Licensed Software, provided (i) Licensor notifies Licensee in a timely manner of any such claims of which it has knowledge or notice; and (ii) accords Licensee the right, at its sole option and expense, to handle the defense of the claim and to settle or resolve any such claim it deems appropriate.
Section 10 Licensor Proprietary Rights and Marks
- Rights of Licensor. Licensee acknowledges and agrees that the Licensed Software and this Agreement contains proprietary and confidential information that is protected by applicable intellectual property and other laws. The trademarks of “KEEPACCOUNT” and “KEEPACCOUNT ONLINE” are the intellectual property of Licensor, and Licensee may not display such marks without the written consent of Licensor. All rights, title and interests in the Licensed Software and source code, whether tangible or intangible including, but not limited to, copyright, trademark and Trade Secret rights and further including any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Licensed Software, and any copies of the Licensed Software are owned by Licensor.
- Licensee Data. Licensor shall not own any right, title or interest to the data as inputted into the Licensed Software by the Licensee (“Licensee Data”). As between Licensor and Licensee, Licensee shall own all such Licensee Data. However, Licensor may collect information and data regarding how the Licensed Software is used, processes information, and otherwise performs. Licensor has the right to access and monitor the use of the Licensee Data and other actions and data within the Licensed Software and the use of the Licensed Software by Licensee. Licensor will make commercially reasonable efforts to delete all its copies of all Licensee Data upon termination of this Agreement. All information collected by Licensor will be used by Licensor and not shared with third parties other than in the aggregate without any identifying information and is Licensor’s Confidential Information. Any information or data produced by the Licensed Software regarding the performance of the Licensed Software or analysis and compilations of aggregate data collected by Licensor is considered proprietary information owned by Licensor.
- No Disclosure to Third Parties. Licensee may not remove the copyright, trademark, or other proprietary notices (if any) from the Licensed Software, any onscreen display when the Licensed Software is accessed, or source code. Licensee may not disclose the Licensed Software, this Agreement or the Exhibits, in whole or in part, or otherwise provide information from the Licensed Software, this Agreement or its Exhibits, in whole or in part, to any third party or parties not directly affiliated with the Licensee without the written consent of Licensor that may be withheld by Licensor upon its sole and absolute discretion. The Licensed Software and related source code that may be made available to Licensee are licensed and not sold. As such, Licensee is limited to the actions as discussed in Section 2. Any actions by Licensee outside of the scope of Section 2 are considered contrary to Licensor’ proprietary rights.
- Injunctive Relief. Licensee acknowledges that any use or disclosure of Licensor’s proprietary rights and marks as described in this Section in a manner inconsistent with the provisions of this Agreement will cause Licensor irreparable damage for which remedies other than injunctive relief will be inadequate, and Licensee agrees that Licensor shall be entitled to injunctive or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement.
Section 11 Non-Disclosure
(a) Confidential Information. Licensor and Licensee agree not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except to carry out the intent of this Agreement. Neither will disclose the Confidential Information of the other to third parties or to the first party’s employees or agents without the written consent of the other party, except to those employees or agents who are required to have the information in order to carry out the contemplated business. Each agrees that it will take all reasonable steps, including all steps that it would take to protect its own Confidential Information, to protect the secrecy of and avoid disclosure or use of Confidential Information of the other in order to prevent it from falling into the possession of unauthorized persons. Each agrees to immediately notify the other in writing of any misuse or misappropriation of such Confidential Information.
(b) Trade Secrets. Licensor and Licensee agree that except as required by the scope of the Agreement or expressly agreed upon in writing by the parties, neither will use, directly or indirectly disclose, or publish any of the other’s Trade Secrets. Both parties acknowledge that any unpermitted use or disclosure of the other’s Trade Secret will cause the Trade Secret holder irreparable damage for which remedies other than injunctive relief will be inadequate and that the Trade Secret holder shall be entitled to injunctive relief or other equitable relief enjoining such use or disclosure, without the posting of a bond or other security, in addition to any other remedies available by law or under this Agreement. The term of this covenant not to disclose Trade Secrets is unlimited and survives the termination of this Agreement.
Section 12 Miscellaneous
- Access to Raw Licensee Data Upon Request. Upon request of Licensee, Licensor shall provide Licensee with the raw Licensee Data stored in the Licensed Software. Licensor provides raw Licensee Data as detailed on Exhibit B.
- Governing Law, Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to conflict of law principles. Venue and jurisdiction for any federal or state court litigation or any alternative dispute resolution including mediation and arbitration shall be in Dane County, State of Wisconsin.
- Entire Agreement. This Agreement with all its Exhibits and any communications which are attached hereto contain the entire understanding of the parties with respect to the subject matter hereof, and supersedes any prior agreement, understanding and communication between the parties, whether written or oral, with respect to such subject matter. This Agreement can be amended only in writing signed by the parties.
- Transfer and Assignment. Except as otherwise provided in this Agreement, Licensee may not assign or transfer the Licensed Software or this Agreement to a third party without the prior written consent of Licensor, which may not be unreasonably withheld or delayed. Before Licensor will consent to such a transfer, Licensee shall provide to Licensor reasonable assurance of the financial stability, net worth and cash flow of such assignee to pay all financial obligations of the Licensee under this Agreement. Licensor will not charge any transfer or other fee in connection with any such transfer or assignment. Any merger that involves Licensee, any sale or transfer of more than fifty percent (50%) of its voting stock or any sale of all or substantially all of the assets of Licensee shall be considered a prohibited assignment or transfer of the Licensed Software, and consent from Licensor would be required hereunder. Licensor is permitted to assign or otherwise transfer this Agreement to any third party without the consent of Licensee. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, representatives, successors, and permitted assignees.
- Severability; No Waiver. In the event that any term or condition of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such determination shall have no effect on the other terms and conditions, which shall continue to be binding upon the parties hereto. Lack of enforcement of any term or condition in this Agreement shall not be construed as a waiver of any rights conferred by such term or condition.
- No joint venture, partnership, employment, or agency relationship exists between Licensee and Licensor as a result of this Agreement or use of or access to the Licensed Software. Licensor shall have sole responsibility for payment to its employees and its subcontractors, including all tax payments and report obligations and shall indemnify Licensee for all such expenses and obligations.
- Written Permission Required for Consultants. Before the Licensee is permitted to hire a consultant to render assistance in the setup or operation of the Licensed Software, Licensee must receive prior written approval from Licensor. In order to request approval, Licensee must first provide Licensor with the name and address of the consultant, along with a description of the actions said consultant will take on behalf of Licensee. Licensor reserves the right to require that the consultant sign a Non-Disclosure Agreement, reasonably refuse to allow a specific consultant to render assistance to Licensee or allow a consultant access to the Licensed Software.
- Survival Clause. All duties and responsibilities of any party, which, either expressly or by their nature, extend into the future, shall extend beyond and survive the end of the contract Term or cancellation of this Agreement. In addition, the expiration or earlier termination of this Agreement shall not relieve either party of obligations incurred prior to the termination date.
- Notices Clause. All notices or communications required or permitted as a part of the Agreement shall be in writing (unless another verifiable medium is expressly authorized) and shall be deemed delivered when:
- Actually received, or;
- E-Mailed to the receiving party,
With a duplicate communication mailed to that party’s last known address which will be deemed received (10) days after deposit with the United States postal service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the respective other party if not actually received.
(j) Alternative Dispute Resolution. In the event of a dispute between the parties arising under or in connection with this Agreement, both parties agree to engage in mediation for the outstanding issues prior to any lawsuit being filed by either party. Mediation will take place in Dane County, State of Wisconsin.
(k) Consent to Use of Electronic Agreement. Licensee once Licensee shows its assent to the terms by clicking the “I Agree” button.
EXHIBIT A - FEES
Licensee must pay the Implementation fees listed below, regardless of the License level chosen:
Standard Implementation Fee: $50.00
TOTAL IMPLEMENTATION: $50.00
Licensor offers various features as part of the Licensed Software. Licensee has elected to license the Licensed Software under the level of service\features indicated by its selection on the Licensor’s website. The Standards Features plus the selected Licensed Services Plan shall equal the “Licensed Software” licensed pursuant to the Master License Agreement.
Standard Features: The following features are included with all levels of the Licensed Software:
- Add / Edit Prisoner Information
- Deposit / Withdrawal Transactions
- Print Individual Prisoner Receipts and Checks
- Commissary Sales/Returns
- Set limits for commissary sales
- Inventory Control
- Setup users and user permissions
- Create Category Codes for tracking transactions
- Edit and Reconcile Checkbook
- Setup Workstations
- Create users with passwords and different functions in the program
EXHIBIT B – RAW LICENSEE DATA PROVIDED
Upon written request of Licensee, Licensor shall provide the following raw Licensee Data to Licensee. Licensor shall have at least ten days to provide the requested data, upon receipt of Licensee’s written request, with more days allowed upon Licensor’s notice to Licensee of such a need.
Prisoner number; master number; name (last, first, mi); address 1; address 2; city; state; zip; phone; birthdate; last 4 digits of social security number; gender; count status; booking date; release date and; security status.
Account name; account balance; frozen status (yes/no); restricted spending amount and; restricted amount spent.
Prisoner number; account name; transaction number; transaction date; deposit or withdrawal; category name; receipt number; check amount; check number and; comments.
Barcode number; item description; cost; selling price; tax per item; sell quantity limit and; quantity on hand.
Entry number; entry date; entry time; entry user id; entry type description; amount; check number; payee; void status (yes/no); running balance and; comments.
User id; first name and; last name.
Work Release Prisoner Data
Prisoner number; supervisor; supervisor phone; agency; fee rates; and fee description and; charges.
Work Release Employer Data
Employer name; address; city; state; zip; contact person; contact person phone; contact person title; person/phone/title for up to two more contacts
Work Release Jobs Data
prisoner number; employer name; work code description.; occupation descry.; monitor begin date; monitor end date; layoff status and; wage assigned status.