Purchase and License Agreement [Amendment No. 1] - Law Enforcement Support Agency and ImageWare Software Inc.
FIRST AMENDMENT -- PURCHASE AND
LICENSE AGREEMENT
BETWEEN
THE LAW ENFORCEMENT
SUPPORT AGENCY
AND
IMAGEWARE SOFTWARE
INCORPORATED
April 23, 1999
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First Amendment - Purchase and License Agreement
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FIRST AMENDMENT - PURCHASE AND LICENSE
AGREEMENT
TABLE OF CONTENTS
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ITEM PAGE
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FIRST AMENDMENT 05
PURCHASE AND SALE OF SYSTEM UPGRADE 05
OPERATE WITH RELIABILITY 06
IMPORT/EXPORT DATA 07
INTERFACE 07
TRANSACTION/AUDIT LOGS 07
PAYMENT 07
MAINTENANCE PAYMENTS 07
DAMAGE AWARD FOR DELAY 08
SOFTWARE 08
CONVERSION OF DATA AND IMAGES 08
COMPLETION 08
SYSTEM ACCEPTANCE TEST (SAT) 08
TRAINING 09
OPERATOR MANUALS 09
MAKE WHOLE CLAUSE 09
MAINTENANCE - EXISTING SYSTEM 09
ESCROW 09
TITLE 10
LICENSE OF SOFTWARE 10
SELLER STAFF 10
A. Investigation 10
B. Hold Harmless 10
PATENT AND COPYRIGHT INDEMNIFICATION 11
INSURANCE 11
MISCELLANEOUS PROVISION 14
A. Waiver 14
B. Entire Agreement 14
C. Laws and Regulations 14
D. Arbitration 14
E. Assignment 15
F. Notice of Parties 15
G. Force Majeure 15
H. Choice of Law 16
I. Seller limitation for damages 16
EXHIBITS. 16
PROPRIETARY INFORMATION 16
A. Definition 16
B. Disclosure 16
C. Access Limitation 16
D. Additional Safeguards 17
E. Third party maintenance 17
F. Ownership 17
G. RCW 42.17 17
SELLER AUDIT OF EXISTING EQUIPMENT 17
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<TABLE>
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SIGNATURE PAGE 18
APPROVED AS TO FORM:....................................................18
UPGRADE EQUIPMENT AND SOFTWARE .......................................19
HARDWARE..............................................................20
NETFINITY 5500 350/400/450 MHz.......................................20
IBM PC 300PL 6862 (4X4) 2............................................20
SYSTEM SOFTWARE ......................................................23
SYSTEM ACCEPTANCE TESTING.............................................25
ESCROW AGREEMENT......................................................28
AGREEMENT FOR MAINTENANCE OF HARDWARE AND SOFTWARE....................38
INSTALLATION SCHEDULE.................................................48
Exhibit F (Price Sheet) 50
</TABLE>
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FIRST AMENDMENT -- PURCHASE AND LICENSE
AGREEMENT BETWEEN IMAGEWARE SOFTWARE INC. AND
THE LAW ENFORCEMENT SUPPORT AGENCY (LESA)
WHEREAS, an Agreement (the "Agreement") for the purchase and sale of hardware
and license of software was entered into on September 26, 1991, by and
between Ximage Incorporated, a California based company ("Seller") and,
jointly and severally, the County of Pierce and the City of Tacoma, in the
State of Washington (Collectively "Buyer") for the purchase and sale of a
computerized mug photo identification system (MUGIS); and
WHEREAS, by Interlocal agreement between Pierce County and the City of Tacoma
Buyers assigned their rights and obligations under the Agreement to the Law
Enforcement Support Agency (LESA), which will be referred to as "Buyer" for
the remainder of this Agreement; and
WHEREAS, through the purchase of the Ximage Corporation in July 1998, by
ImageWare Software Incorporated and through this purchased received all
rights, privileges, software and hardware designs, and contractual
obligations of the Ximage Corporation shall be referred to as "Seller" for
the remainder of this Agreement: and
WHEREAS, the Buyer and Seller mutually desire to modify, upgrade, and
otherwise improve the system by adding and upgrading system equipment, and
adding new software and system functionality, all according to the
provisions of this Agreement at additional cost to the Buyer: and
WHEREAS, Buyer has determined that it is in its best interest to accept the
hardware and software modifications to the system contemplated hereby to
further amend the Agreement.
NOW THEREFORE, the parties hereby agree to amend the Agreement as follows:
1. PURCHASE AND SALE OF SYSTEM UPGRADE. Buyer agrees to buy and Seller agrees
to sell an Upgrade to Buyer's existing MUGIS system as follows:
a. Buyer will receive the hardware, Crimes Capture System (CCS) software,
investigative software for fifty stations, sub releases, and licenses
to use the software as set for in paragraph 19, as well as updates
maintenance and hardware and software support services for 60 months
in exchange for the payments as set forth in paragraph 6, and monthly
maintenance fees as set forth in paragraph 7 and EXHIBIT D.
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b. The upgrade will include installation of IBM or equivalent based
equipment listed in EXHIBIT A.I, which shall become the property of
the Buyer upon acceptance of this Upgrade. Any existing equipment,
which will remain as part of the installation, and will not be
replaced, will be noted on EXHIBIT A.I. All other items to be replaced
as part of the hardware upgrade will be removed by the Seller except
as noted in EXHIBIT A.1.
c. Seller will install the CCS software upgrade to Buyer's existing
system, preserving all functionality of the existing system including
customization for Buyer's use, to include but not limited to Print
Formats, CHRI and JMS interfaces, System connectivity, etc., and
adding functionality as set forth in EXHIBIT A.II.
2. OPERATE WITH HIGH RELIABILITY. The system must be capable of continued
operation in degraded modes and be backed -up by practical means which is
either manual or system generated. Communications links must be reliable.
The L.E.S.A. technical staff and County and City personnel must be able to
maintain and support the system with the current staff and resources.
a. The network will connect the equipment stated in Exhibit A.I and the
existing equipment. The System must be capable of other add-ons
outside of the County-City building without degradation. It shall be
configured so that no single component failure of maintenance outage
or cable disconnection shall functionally disable the system.
Although it is understood that a failure of the server will prevent
data-base searches, the CCS Capture stations must have the ability to
capture and store booking records consisting of images with basic key
information at the capture station. Upon restoration of the service to
the server, the system must provide for automatic transfer of the
stored images and associated data. Each capture station must be able
to hold up to 1400 IMAGES.
b. The system shall be capable of meeting all response times and other
performance criteria in this Agreement [Exhibit B] during simultaneous
operations of all stations, both within and outside the County-City
building, up to a total of 60 concurrent users subject to the speed
limitations of digital lines and network provided by Buyer. The
database shall have the capacity to store 1 million images.
c. Downtime. The system downtime shall not exceed ten (15) hours during
any month, despite continuous heavy use 24 hours each day. The maximum
downtime for non-critical is 48 hours and the maximum downtime for
critical equipment is 12 hours. Downtime will be computed from the
time the customer places a call for service to the time that system is
once again fully operation. Critical components, Downtime, and the
Remedy for excessive downtime (15.1 hours or more in one month) are
defined in the Maintenance Agreement EXHIBIT D.
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3. IMPORT/EXPORT OF DATA AND PHOTOGRAPHS. The System shall allow for the
Import and Export of photographic images and associated data that conform
to the ANSI/NIST 1996 Standards.
4. INTERFACES. The System will have and the Seller will provide the capability
to interface with any other computer systems that the Buyer needs to
interact with for the purpose of exchanging data and or images. This will
include, but not limited to, the Criminal History Records Inquiry (CHRI)
computer system, Jail Information Management System (JMS), MORPHO AFIS, and
Live Scan devices. The Crime Capture System will provide a direct interface
with the JMS computer to receive demographic and other data elements, and
provide for the transfer of images to the JMS computer. The cost of this
system will be the responsibility of either EPIC Solutions (JMS Vendor) or
the Pierce County Sheriffs Correction and Detention Center. How this is to
be accomplished and in what format will be the responsibility of Seller.
5. TRANSACTION/AUDIT LOGS. The System shall automatically record every
significant system transaction and event in a log file or other format so
that it may be archived for permanent storage. It will be retained on-line
for a minimum of 60 days. The transactions to be recorded shall include but
not limited to the operator's identity, the time the operator logged on and
off, the station the operator was logged into, what records he added, what
record number was printed, what record number he deleted, each photo-lineup
created and by whom and when, what records were updated, and who updated
each record and the day it was updated. The system shall have the
capability to move transactions/audit logs to permanent storage media.
6. PAYMENT. Buyer agrees to pay for the purchase, license, installation, and
training herein described by paying the Seller the amount of ONE HUNDRED
TWENTY-NINE THOUSAND FIFTY-EIGHT DOLLARS AND SEVENTY-TWO CENTS
($129,058.72) EXCLUDING ALL ASSOCIATED WASHINGTON STATE SALES TAX. This
sum includes all hardware and software costs ($115,231.00), and all
shipping, training, and installation fees ($13,827.72). The payment will
be in three parts. Thirty-three percent (33%) will be at the time of
delivery of the project implementation plan, thirty-three percent (33%)
will be at the time of system acceptance and the final thirty-three
percent (33%) will be after the system has had 30 days of performance at
or above 96% up-time.
7. MAINTENANCE PAYMENTS. Seller agrees that the system hardware maintenance
and software support fees will begin on January 1, 2001. Buyer agrees to
pay quarterly maintenance payments beginning on January 1, 2001, by
February 15, 2001, and quarterly thereafter for the life of the maintenance
agreement. Payments will be made by the 15th day of February, May, August,
November of the respective maintenance period. A maintenance period will be
defined as three calendar months. The amount of maintenance payments will
be defined in EXHIBIT D.3.3
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8. DAMAGE AWARD FOR DELAYED INSTALLATION. The CCS upgrade is an integral part
of the Pierce County Sheriff's Department Bureau of Corrections and
Detention's Jail Management System (JMS) and must be installed and data
converted prior to the completion and installation of that system.
Notwithstanding any other provision of this First Amendment, the maximum
time within which the Seller may obtain Acceptance of the upgraded system,
without incurring liquidated damages for delay is July 30, 1999. Failure to
meet this deadline, the Seller will pay Pierce County the amount of $2,000
for each day of delay. If the Buyer causes the delay, Seller will not be
responsible for any damages due to delay.
9. SOFTWARE. The additional software functionality of which CCS is capable as
set forth in EXHIBIT A.II, and the additional customized software
functionality to be provided to Buyer as set forth in EXHIBIT A.II. Seller
agrees that no existing functionality of Buyer's system, as defined in
Exhibit B, shall be lost as a result of the Upgrade. The software shall and
all converted records will meet all ANSI/NIST 1996 standards, and all
images will meet the ANIS/NIST 1996 JPEG standards.
Any upgrades of the system, or any software created or provided by Seller,
outside of the scope of this agreement shall be offered to the Buyer upon
the most favorable terms and conditions offered by Seller to any other
customer. Seller will provide the capability to do tape backups to the
LESA backup system. LESA will provide the setup and Legato licensing for
the Crime Capture System.
10. CONVERSION OF DATA AND IMAGES. The Seller will convert all existing data
and images found on the Buyer's ForceField MUGIS computer into the
appropriate ANSI/NIST format. The conversion will be complete by Seller at
no additional cost to Buyer.
11. COMPLETION. The Seller shall complete the Upgrade WITHIN 11 CALENDAR DAYS
from the date on which it commences installation of the Upgrade. The
Upgrade cannot cause more than eight (8) continuous hours of system down
time during any twenty-four (24) hour period while the Upgrade is being
installed. Downtime for this section only, will be defined as anytime that
either the PCSD Corrections Bureau or Remann Hall Juvenile Detention Center
are unable to capture booking photos in either the automated or stand
alone-mode.
12. SYSTEM ACCEPTANCE TEST (SAT). After completion of installation and prior to
Acceptance, Seller will perform a systems acceptance test (SAT) upon the
Upgraded system as set forth in EXHIBIT B. This test will be considered
satisfied upon the satisfactory completion of those items under Exhibit B
that are under the control of the Seller. Any function, in Exhibit B, which
cannot be demonstrated due to a failure of the EPIC Solution's half of the
JMS interface will not be considered a failure of the SAT. The system will
be conditionally accepted and payment will be made per Paragraph 6 (SAT
Acceptance) of this Amendment. When the interface is completed or fixed the
portion of the SAT that could not be run will be completed. If the
uncompleted portions of the SAT fail, the final payment will be held until
the Seller satisfactorily demonstrates
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the remaining functionality, and the remaining conditions for final payment
per Paragraph 6 have been met.
13. TRAINING. Prior to commencement of the SAT, Seller will provide workstation
training of Buyer's designated personnel and such additional system
operation training of Buyer's designated personnel as may be reasonably
necessary to permit Buyer to operate the system as modified by the Upgrade.
Acceptance shall not be delayed by Buyer's failure to provide personnel
for training before Acceptance at reasonable times scheduled by Seller.
14. OPERATOR AND SYSTEM MANUALS. Five (5) days prior to commencement of the SAT
for the Upgrade, Seller shall deliver to Buyer sufficient Operator Manuals,
System Administrator Manuals, and Server Operation Manuals for each
corresponding site. In addition documentation should be provided for the
user level of the Investigative Tool. Seller will provide an "as-built"
document upon completion of the upgrade that will document all
configurations and installation settings required by Seller for maintenance
and warranty purposes.
15. MAKE WHOLE. In the event that the installed Upgrade cannot function as
required for the SAT the Seller will have three (3) calendar days to
complete any necessary repair and perform the SAT. If after two additional
three (3) calendar day periods the SAT still cannot be satisfactorily
completed, the Buyer may either:
a. Require the Seller to reinstall the old ForceField system to its
original running condition prior to the Upgrade. OR,
b. Grant the Seller additional time to complete the necessary changes to
pass the SAT. If after this extension the Seller cannot satisfactorily
complete the SAT, Buyer reserves the right to exercise option 15.a of
this agreement.
16. MAINTENANCE OF EXISTING SYSTEM. During the period of time between
acceptance of the First Amendment of the Agreement and the installation,
and completion of the SAT Seller shall provide maintenance services on the
ForceField system pursuant to the existing agreement, but at no cost to
Buyer.
17. ESCROW.
a. DEPOSIT. Throughout the term of the perpetual, non-exclusive license
agreement, Seller agrees to keep and maintain current one copy of the
system source code for the version of all CCS software used by Buyer
under this agreement with a mutually acceptable Escrow Agent (the
"Escrow Agent"). The Escrow Agent shall be paid by Seller and Shall be
authorized to release the source code to Buyer in accordance with the
terms of the Escrow Agreement attached hereto as EXHIBIT C and
incorporated herein by reference.
b. DOCUMENTATION. Seller shall also place in said Escrow one copy of the
appropriate maintenance manuals and such additional documentation as
is required for the proper maintenance of all Hardware and Software
components of
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the System, regardless of manufacturer. Such documentation shall
consist of logic diagrams, wiring diagrams, installation instructions,
theory of operation manuals, and maintenance manuals, and shall
include the same information as that which Seller supplies to its
maintenance personnel of the maintenance of the System.
c. RELEASE. In accordance with terms of the Escrow Agreement, Buyer shall
be entitled to release of the materials placed in escrow in the event
Seller ceases to conduct business in the normal course, becomes
insolvent, makes a general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for its business
assets; or avails itself or, becomes subject to any proceedings under
the Federal Bankruptcy Code or any other statute of any state relating
to insolvency or the protection of rights of creditors.
18. TITLE. Seller warrants that title to the Hardware sold to Buyer under this
Agreement will pass to Buyer upon Acceptance, free of any and all
encumbrances. In the event that any such Hardware becomes subject to any
claims for liens or other encumbrance, Seller shall promptly, and in any
event within thirty (30) days, cause such lien or encumbrance to be
discharged and released of record, without cost to Buyer, and shall
indemnify Buyer against all costs and expenses (including attorney's fees)
incurred in discharging and releasing such claim of lien or encumbrance. If
any such claim or encumbrance is not so discharged and released, Buyer may
pay or secure the release or discharge thereof at the expense of Seller
after first giving Seller five (5) days' advance notice of its intention to
do so.
19. LICENSE OF SOFTWARE. Seller hereby grants to Buyer, subject to the terms
and conditions of this Agreement, a nontransferable, nonexclusive, and
perpetual license to use the Software provide under this Agreement. This
license is for use of the Software only with the Hardware described in this
Agreement. Notwithstanding any other provision of this Agreement, including
Exhibits, this license shall survive any termination of the Agreement.
20. Technical Personnel Supplied by Seller.
a. INVESTIGATION. Due to the sensitive nature of some of Buyer's file
information, all Seller's personnel who will have access to Buyer's
file information may be fingerprinted and Buyer may conduct a
background investigation. Any of Seller's personnel may be denied
access to Buyer's Site and information for security reasons.
b. HOLD HARMLESS. Seller agrees to hold harmless Buyer and its agents and
assigns from all third party claims, demands, damages, actions or
causes of action resulting from allegedly unauthorized dissemination
to third parties by any of Seller's personnel of Buyer's data made
available to Seller under this Agreement, or of any other information
identified in writing by Buyer to Seller as information that is
confidential to Buyer.
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21. PATENT AND COPYRIGHT INDEMNIFICATION.
a. GENERALLY. Seller shall at Seller's expense defend, indemnify and hold
harmless Buyer against any action brought against Buyer to the extent
that such action is based upon a claim that the System or any part
provided by Seller infringes and United States or foreign patent or
copyright ("Infringement Action"); provided, however, that (i)
Seller's obligations under this paragraph 17 shall be conditioned upon
Buyer promptly notifying Seller in writing of the Infringement Action
(and all prior claims relating thereto), and (ii) Seller shall have
the sole control of the defense and all negotiations for compromise of
any Infringement Action.
b. REMEDIES In the event the System becomes, or in Seller's opinion is
likely to become, the subject of a claim of infringement of a United
States or foreign patent or copyright, Seller may, at Seller's option,
either (i) secure for Buyer the right to continue the use of the
System, or (ii) replace or modify the System to make it noninfringing
(provided that the modified or replacement System continues to meet
the same performance standards as the infringing System. In the event
that neither (i) nor (ii) is reasonably available to Seller, Seller
shall so notify Buyer and Buyer shall become entitled to terminate
this Agreement, and the recovery of damages as stated in paragraph
21.c.
c. DAMAGES. The amount of damages awarded under this section 21 will be
limited to (i) the restoration of the ForceField system to its
operation condition prior to the Upgrade at Seller's cost, and (ii)
the return to Buyer all costs associated with this Upgrade and
infringement action to include purchase price and maintenance fees.
d. LIMITATIONS. Seller shall have no liability or obligations in any
Infringement Action based upon the Buyer (i) combining or utilizing
the System or parts thereof with equipment, devices or software not
connected or provided by Seller; (ii) using other than the most recent
release of the licensed software provided by Seller, in the event that
the Infringement Action could have been avoided by use of such
release; or modifying the System, without the expressed written
authorization of the Seller.
22. INSURANCE.
a. GENERALLY. Throughout the effective period of this Agreement, Seller
shall purchase and maintain insurance from a carrier or carriers
satisfactory to the Buyer covering injuries to persons or property of
Buyer or third parties as a result of errors, omissions, or operations
by Seller arising out of this Agreement. Seller shall provide Buyer
with a certificate of insurance within ninety (90) days of Seller's
acceptance of this Agreement, as represented by Seller's signature,
but not less than 7 working days prior to commencement of
installation. Seller shall
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provide thirty (30) days prior written notice to Buyer of any
cancellation, nonrenewal, or material change in the insurance
coverage.
b. WORKERS' COMPENSATION INSURANCE. Seller shall comply with the
Workmen's Compensation Act of the State of Washington and the United
States Longshoremen's and Harborworkers' Compensation Act during the
term of this Agreement, and in case any of the work to be performed by
Seller hereunder is subcontracted, Seller shall require any and all
subcontractors to comply with said acts.
The Seller specifically assumes potential liability for actions
brought by the Seller's own employees against the Buyer and, solely
for the purpose of this indemnification and defense, the Seller
specifically waives any immunity under the state industrial insurance
law, Title 51 RCW. The seller recognizes that this waiver was the
subject of mutual negotiation.
c. LIABILITY INSURANCE. Contractor shall procure and maintain
Comprehensive Public Liability and Property Damage Liability Insurance
which includes but is not limited to operations of Seller, with limits
of not less than:
i. Workers' Compensation and Employers Liability insurance in
accordance with the laws of the State of Washington with
liability limits of One Million Dollars ($1,000,000.00) per
person per accident.
ii. Comprehensive General Public Liability and Broad Form
Comprehensive General Liability or Commercial General Liability
including bodily injury, personal injury, and property damage in
the amount of a combined single limit of One Million Dollars
($1,000,000.00) each occurrence, and Two Million Dollars
($2,000,000.00) in aggregate limit.
iii. Comprehensive Auto Liability including +bodily injury, personal
injury and property damage in the amount of One Million Dollars
($1,000,000.00) each occurrence and Two Million Dollars
($2,000,000.00) in aggregate limit. Coverage must include all
automobile utilized by ImageWare performing the work hereunder.
iv. The following statement shall appear in each certificate of
insurance provided the Buyer by Seller hereunder: "It is agreed
that in the event of any material change in or cancellation of
this policy, thirty (30) calendar days prior written notice will
be given Buyer."
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The following coverage shall be included in both Primary and excess Liability
contracts:
1. Broad Form Property Damage Coverage
2. Blanket Broad Form Contractual
3. Stop-Gap Employer's Contingent Liability
4. Contractor's Protective
5. Personal Injury Liability (Libel, Slander, Defamation, etc.)
6. Products and Completed Operations
7. Non-Owned and Hired Car Coverage
Seller's insurance policy shall also contain a "cross liability" endorsement and
substantially as follows:
The inclusion of more than one Insured under this policy shall not affect
the rights of any Insured as respects any claim, suit or judgment made or
brought by or for any other insured or by or for any employee of any other
Insured. This policy shall protect each Insured in the same manner as
though a separate policy had been issued to each, except that nothing
herein shall operate to increase the Seller's liability beyond the amount
or amounts for which the Seller would have been liable had only one insured
been named.
Buyer shall be named as an additional insured as respects this contract, and
such insurance as is carried by Seller shall be primary (over and insurance
carried by Buyer).
d. PRIMARY INSURANCE. All insurance under this Agreement shall provide
that such policies are primary insurance to any other insurance
available to the parties hereto with respect to any claims arising out
of this Agreement or as to performance thereof, and that such
insurance applies separately to each insured against whom claim is
made or suit is brought.
e. INSURANCE NOTICES. All insurance under this Agreement shall provide
that any notice regarding said insurance shall be made in writing and
mailed to the following addresses:
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To Buyer:
Law Enforcement Support Agency
C/o City of Tacoma Risk Management
747 St. Helens Municipal Building
Tacoma, Washington 98402
To Seller:
Mr. James Miller
President and CEO
ImageWare Software Inc.
10883 Thornmint Road
San Diego, California 92127
Or to such other address as may be specified from time to time by the relevant
party.
1. MISCELLANEOUS PROVISIONS.
a. WAIVER. The failure by either party at any time to enforce any default
or right reserved to it, or to require performance of any of the
terms, covenants, or provisions hereof by the other party at the time
designated shall not be construed as a waiver of any such default or
right to which the other party is entitled, nor shall it in any way
affect the right of the party to enforce such provisions, covenants,
or rights thereafter.
b. ENTIRE AGREEMENT. This First Amendment to the Agreement constitutes
the entire agreement of the parties hereto with respect to the subject
matter hereof and no waiver or amendment of any provision of this
Agreement shall be valid unless made in writing and executed by all of
the parties hereto. Upon Buyer's Acceptance under the First Amendment,
the provisions of the Agreement, as previously amended, shall no
longer be effective, except to the extent expressly provided in this
First Amendment.
c. LAWS AND REGULATIONS - SEVERABILITY. The articles and services covered
by this Agreement shall comply with applicable Federal, State, and
local laws, ordinances, and any other legal requirements which are in
effect on the date of the Amendment. In the event that any of the
terms, conditions, or provisions of this Agreement shall be held
illegal, unenforceable, or invalid, then notwithstanding, this
Agreement shall remain in full force and effect and the legality,
validity and enforceability of the remaining terms, conditions, and
provisions shall not be affected thereby.
d. ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, the breach thereof, or the interpretation thereof,
shall be referred in the
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first instance to the chief executive of Seller and to the senior
representative of the Buyer for amicable resolution, failing which
such controversy or claim shall be settled by binding arbitration in
accordance with the Rules of the American Arbitration Association. Any
judgment upon the award rendered in such arbitration shall be final
and may be entered in any court having jurisdiction thereof.
e. ASSIGNMENT. This Agreement may not be assigned by either party without
the express written consent of the other, which consent shall not be
unreasonably withheld, provided, however, that Buyer may, without
Seller's consent, assign all of its rights to any similar joint
agency, subject only to (i) Buyer giving notice of such assignment
to Seller and (ii) such other agency assuming all of Buyer's
obligations and obtaining receipt of any and all funding
authorizations that may be required in that connection.
f. NOTICE OF PARTIES. All notices and demands of any kind which either
party hereto may be required or desire to serve upon the other party
under the terms of this Agreement shall be served upon such other
party by personal service, or by leaving such notice or demand at the
address set forth below or by forwarding a copy thereof by first class
mail, postage prepaid, or by telex or telecopier, address as follows:
To Buyer:
Law Enforcement Support Agency
Attn: Robert Van Geison, Director
930 Tacoma Ave. So. Room 239
Tacoma, Washington 98402
To Seller:
James Miller
President & CEO
ImageWare Software Inc.
10883 Thornmint Road
San Diego, California 92127
Or to such other address as may be specified from time to time by
the relevant party. Service shall be deemed complete when the
party to whom addressed receives the notice or demand.
g. FORCE MAJEURE. Seller and Buyer shall not be responsible for any loss,
delay, or breach in delivery of performance of any obligation
hereunder caused by third parties; change in governmental regulations,
controls, directions or orders; outbreak of a state of emergency, Acts
of God or the public enemy, war,
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hostilities, civil commotion, riots, freight or trade embargoes,
epidemics, perils of the sea, or other natural casualties, fires,
strikes, walkouts, communication line failures, or other similar cause
or causes beyond the control of either party.
h. CHOICE OF LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of and in the courts of the State of
Washington. Any actions shall be brought in the Superior Court of the
State of Washington located in the City of Tacoma, County of Pierce.
i. NOT LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES Either
party shall in no event be liable for any incidental, special, or
consequential damages of any nature whatsoever, including, without
limitation, damages arising from loss of use of the system, lost
data, wrongful arrest, damage to reputation or lost profits, even if
Seller has been advised of the possibility of such damages.
2. EXHIBITS. Seller shall comply with the provision of Exhibits attached
hereto.
3. PROPRIETARY INFORMATION.
a. DEFINITION. For the purposes of this Section, the following items
shall, except to the extent that they become generally known to the
public through no fault of Buyer, be treated as "Proprietary
Information:"
i. The Software, including any upgrade thereof or other modification
thereto;
ii. Any technical information or data specifically marked as
proprietary information provided by Seller to Buyer with respect
to the System, including the documentation furnished pursuant to
this agreement;
iii. Any other information or data provided to Buyer by Seller, which
Seller designates and clearly marks as "proprietary,"
"confidential," or "restricted," or by some similar designation.
Materials, information or documentation provided to Buyer pursuant to
the Escrow Agreement required by paragraph 17 shall not be included
within this definition of proprietary information.
b. DISCLOSURE, DUPLICATION AND USE. Except as otherwise authorized in
writing by Seller, Buyer shall take all necessary precautions to
prevent:
i. Disclosure of an proprietary information (other than to
employees, agents or representatives);
ii. Duplication of any proprietary information; or
iii. Use of a proprietary information except in connection with use of
the System by Buyer for law enforcement purposes.
c. ACCESS LIMITATION. Seller reserves the right to protect itself against
disclosure of various components of the Software by encasing the same
in locked sub-systems
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 17
of the System. Buyer agrees not to allow third party access to such
locked sub-systems. Buyer further agrees that neither it nor it
employees, agents or representatives shall have access to the contents
of such locked sub-systems except to the extent that such access is
necessary for day-to-day operation of the System (as opposed to
maintenance).
d. ADDITIONAL SAFEGUARDS. Buyer agrees to comply with any additional
safeguards against improper disclosure, duplication or use of
proprietary information that Seller may reasonably promulgate from
time to time, provided that such safeguards do not unduly interfere
with Buyer's use of the System or appreciably increase Buyer's
operating costs with respect thereto.
e. THIRD PARTY MAINTENANCE. Since this is a turnkey system using off the
shelf components and Seller developed software, the Seller will be
responsible for all maintenance of the System. (If a component or
piece of software supplied by the Seller requires a third party to
complete the repair or maintenance, it will be the Seller's
responsibility to arrange for this third party repair or maintenance
at the Seller's cost).
In addition, in the event that the Seller shall decline to renew the
Maintenance Agreement described in EXHIBIT D; Buyer shall be entitled
to disclose proprietary information to such personnel.
f. OWNERSHIP. Except as otherwise provided in this Agreement or by
agreement between Buyer and Seller, all proprietary information shall
remain the exclusive property of Seller.
g. RCW 42.17. Nothing in this paragraph shall be construed as prohibiting
Buyer from making available, for public inspection and copying, any
public records required to be made available pursuant to chapter 42.17
RCW, providing, however, that Buyer Shall, in such even, give Seller
prior reasonable notice and an opportunity to challenge such
disclosure before the Courts, to the extent permitted under applicable
law.
26. Seller will audit existing/remaining hardware to ensure sufficient capacity
and compliance with the requirements of this agreement and the Crime
Capture System. It will be Buyers responsibility to take appropriate action
as required in the Seller's report to assure continued operation.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 18
IN WITNESS WHEREOF the parties hereto have executed this First Amendment
to the Agreement this 11th day of May, 1999.
BUYER: Law Enforcement Support Agency
By: /s/ Robert Van Gieson
--------------------------------------------
Robert Van Gieson, Director
SELLER: ImageWare Software Inc.
By: /s/ James Miller
--------------------------------------------
James Miller, President & CEO
Approved as to form:
By: /s/ Cheryl Carlson
--------------------------------------------
Cheryl Carlson Asst. City Attorney
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 19
EXHIBIT A
UPGRADE EQUIPMENT AND SOFTWARE
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 20
EXHIBIT A.I
HARDWARE
A.I.1. The following hardware and sub-systems will be included in the System
purchase price. All replaced hardware will be removed except as noted in
Section A.I.19.
A.I.2 MEDIUM NETFINITY SERVER HARDWARE (SERVER & RAID replacements) Netfinity
5500 350/400/450 MHz
- IBM Netfinity 5500 Pentium II I
- 10/100 PCI Ethernet
- 2-drop 16 bit SCSI internal Cable
- 32X IDE CD-R"OM Drive
- 500/100 MHz Pentium II processor with 512KB ECC L2 Cache
- IBM 1.44MB 3.5 floppy
- IBM 104 Key Board Grey
- Integrated IDE Controller
- Integrated PCI Ultra SCSI RAID Controller - dual channel
- Mouse - Grey
- Netfinity 400 W Hot-Swap Power Supply
- Netfinity NetBay3
- Processor Complex Card
- S3 Trio64V2 Graphics - 1MB SGRAM
- Systems Management Processor
- ISA 56K33.6 Plug and Play Data/Fax modem
- 18.2GB 1OK ultra SCSI SCA-2 Hot-Swap HDD
- TrackPoint IV 104 Stealth Black Keyboard
- IBM Netfinity 256MB SDRAM ECC RDIMM
- 50OMHz Pentium III Processor with 512KB
- Black Sleek Mouse
- G74 - 17 (15.9) in Color Monitor, 69 KHz Stealth Grey
- Smart-UPS 1400-17 Min Runtime
A.I.3 APTURE STATION (Puyallup)
IBM PC 300PL 6862 (4X4) 2
- IBM 6.4GB EIDE Hard Drive
- 10/100 PCI Ethernet WOL
- 16 bit ISA Crystal Audio Integrated
- 400/100MHz MMX Pentium II Processor with 512 Pipeline B
- 4MB Integrated SCRAM Video Memory
- 64MB 60ns NP SDRAM DIMM
- CD-ROM Drive Internal 32X Max (Variable Speed)
- IBM 1.44 MB floppy
- IMB 104 key Rubber Dome Keyboard
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 21
- Integrated IDE Controller
- S3 Trio 3D AGP Graphics Integrated
- P72 - 17 (16) in UV-NH Color Monitor, 85KHz, Pearl White (1)
A.I.4 CAMERA SUB SYSTEMS (ALL)
All original Equipment remains except for:
- Pan and Tilt Camera mount
- Cable Bundle
A.I.5 INVESTIGATIVE STATION HARDWARE (2) (Replacement for PCSD 04 & 05)
IBM PC 300pl 6862 (4x4) 2
- IMB 6.4GB EIDE Hard Drive
- 10/100 PCI Ethernet WOL
- 16-bit ISA Crystal Audio Integrated
- 400/100MHz MMX Pentium II processor with 512KB Pipeline B
- 4MB Integrated SCRAM Video Memory
- 64 MB 60 ns NP SCRAM DIMM
- CD-ROM Drive Internal 32X Max (Variable Speed)
- IBM 1.44MB Floppy Drive
- IBM 104 key Rubber Dome Keyboard
- Integrated IDE Controller
- S3 Trio 3D AGP Graphics Integrated
- P72 - 17 (16) in. UV-NH Color Monitor, 85KHz, Pearl White
A.I.6 MONITORS: (6)
- P72-17 (16) inch. UV-NH Color Monitor, 85KHZ, Pearl White (6).
To replace monitors at PCSD 02,03,06 TPD 02,03 and JUV 02.
A.I.7 PRINTERS COLOR AND BLACK/WHITE
- 6 - MITSUBISHI CP 700 COLOR PRINTERS
- 9 - HP LaserJet B/W 400OTN 17PPM, 120ODPI Printers
(This will replace all of the existing printers at all locations)
A.I.8 SCANNERS (2) TPD/PCSD FORENSICS
- 2- Epson 800 Executive Scanner with SCSI card
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 22
A.I.9 REPLACED HARWARE:
The Seller, with exception of the following items, will remove all the old
hardware upgraded through this Amendment.
- HV-C10 cameras replaced with Scanners. (2)
- All printers except the Kodak SV6600 series.
- Server and RAID storage hardware
ALL OTHER EXISTING HARDWARE WILL BE USED AS PART OF THE COMPLETE SYSTEM.
IF THERE ARE ANY DISCREPANCIES BETWEEN THE HARDWARE LIST ABOVE AND THE
ATTACHED FAXED COPY OF HARDWARE AND SOFTWARE, THE ATTACHED FAXED COPY FROM
THE SELLER WILL BE CONSIDERED TO BE CORRECT.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - Imageware CCS Contract page 23
EXHIBIT A.II
SYSTEM SOFTWARE
A.II.1 The Crime Capture System is an NT based system with a Microsoft SQL
Database. Client sites will operate in a Windows 95, 98, or NT
environment.
All necessary software will be supplied and installed by the Seller.
The software will provide the capability to meet the minimum
requirements of the System Acceptance Test (SAT) as defined in EXHIBIT
B. The installed software will at a minimum perform all of the
functions associated with the current ForceField software, as defined
in Exhibit B, in addition to those features and functions packaged
with this software version as enhancements over the older ForceField
software.
A.II.2 Seller certifies all Crime Capture System software uses four digit
years and is "Y2K" compliant according to ANSI and generally accepted
Year 2000 compliance requirements.
A.II.3 Seller will provide NT configuration requirements 30 days prior to the
installation to allow sufficient time to prepare the multi-agency
environment for this system. This plan should include all specific
networking settings needed to allow the CCS to function through
multiple firewalls and across unshared NT domains.
CCS INVESTIGATIVE DISPLAY SOFTWARE (FULL) LICENSE (4)
3 - TO PIERCE COUNTY SHERIFF'S DEPT.
1 - TO TACOMA PD
CCS CAPTURE STATION SOFTWARE LICENSE (5)
2 - TO PIERCE COUNTY SHERIFF'S DEPT.
1 - TO TACOMA PD
1 - TO PUYALLUP PD
1 - REMANN HALL
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 24
INVESTIGATIVE/MUGBOOK SOFTWARE LICENSE (50)
10 - TO PIERCE COUNTY SHERIFF'S DEPT.
40 - TO TACOMA PD
IF THERE ARE ANY DISCREPANCIES BETWEEN THE SOFTWARE LIST ABOVE AND THE ATTACHED
FAXED COPY OF HARDWARE AND SOFTWARE, THE ATTACHED FAXED COPY FROM THE SELLER
WILL BE CONSIDERED TO BE CORRECT.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 25
EXHIBIT B
SYSTEM ACCEPTANCE TESTING
(SAT)
B.1 SYSTEM ACCEPTANCE TESTING (SAT)
The SAT will take place after the installation of all hardware and
software and the Seller has certified the System installation
completed and ready for testing. Selected employees from Remann Hall,
Puyallup Police Department, Tacoma Police Department, and Pierce
County Sheriff's Department will conduct the SAT. The SAT team will
utilize all capture and display stations to capture live images and to
make sufficient inquires of the system to measure its conformance and
compatibility with the following:
B.1.2 The booking transaction will result in a transfer of data and
between JMS and CHRI computers and the CCS computer System. The
transaction will be initiated by the booking officer entering the
booking number into the appropriate field on the display. The CCS
computer will access the appropriate prearranged file(s) of the JMS or
CHRI computers via the System interface, retrieve, and permanently
store the information on the CCS server. The transfer time should be
10 seconds or less, assuming a reasonable response from the JMS/CHRI
systems. The CCS must also allow for the manually enter of and or
updating of all fields listed below.
1. NAME
2. BOOKING NUMBER
3. RACE
4. SEX
5. HEIGHT
6. WEIGHT
7. EYE COLOR
8. HAIR COLOR
9. CHARGES
10. TPD NUMBERS
11. PCSD NUMBERS
12. FBI NUMBER
13. WASH. STATE NUMBER
14. SCARS, MARKS, TATTOOS, ETC.
15. GANG MEMBERSHIP
16. FACIAL HAIR
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 26
B.1.3 Each capture station must capture, display, and print images in color
and black and white. Format and size must be to Buyer's current
specifications and designs.
B.1.4 Any black and white or color print must be printed within two (2)
minutes.
B.1.5 Each capture station or investigative station must be able to display
a minimum of 25 color full-face images at one time.
B.1.6 Each capture station or investigative station must be able to display
images without the demographic information displayed.
B.1.7 Each capture station or investigative station must be able to
access the database using name, booking number, or CHRI number and
display the proper image and data within 15 seconds or less.
B.1.8 Each capture station or investigative station must be able to generate
and display photo line-ups. The line-ups musts be able to be recalled
by suspect name, or line-up identification number. The identification
number must appear on every copy of the lineup that is generated and
printed.
B.1.9 Each scanner must be able to scan photographs, slides, books,
negatives into the permanent database from which they can be displayed
and printed from any capture or investigative station, or from any PC
using the investigate tool. THIS CAN BE ACCOMPLISHED PROVIDED THE
BUYER PURCHASES AN EPSON EXECUTIVE SCANNER TRANSPARENCY UNIT FOR EACH
SCANNER.
B.1.10 The system must generate all color identification cards currently in
the ForceField system. It must also be able to print all black and
white formats currently used in the ForceField system. As each
agencies identification cards are unique and specifically designed for
that agency, access to these identification cards must be limited to
the agency that is identified on each card format.
B.1.11 The System's training mode must be accessible from any capture or
investigative station and must not effect on-line data nor interfere
with other stations on the system.
B.1.12 The System must be able to seal, expunge, or delete any recorded image
and associated data.
B.1.13 The System must automatically log it self off after 10 minutes of no
operator use.
B.1.14 An audit trail must be produced at the conclusion of the SAT. The
audit must include all information contained in paragraph 5 of the
Agreement.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 27
B.1.15 The System must allow for the interface to other Law Enforcement
agencies that purchase the Crimes Capture System or the ForceField
computerized mug photo identification systems. Where as this may not
be able to demonstrate at the SAT this is a needed function that must
be available. SELLER THROUGH THEIR SIGNATURE ON THIS CONTRACT AGREES
THAT CCS CAN COMMUNICATE WITH CCS SYSTEMS, BUT CANNOT COMMUNICATE CCS
TO ForceField.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 28
EXHIBIT C
ESCROW AGREEMENT
SOFTWARE ESCROW AGREEMENT
MULTI USER PLAN
This Agreement is effective________________, 19___ among Lincoln-Parry
SoftEscrow, Inc., (hereinafter known as "Trustee"), a company with
principal offices located at 400 Inverness Drive, Suite 200,
Englewood, CO 80112, ImageWare Software Incorporated, (hereinafter
known as "Licensor"), a Corporation, with principal offices located at
10883 Thornmint, San Diego, CA 92127 and any additional party,
(hereinafter known as "Licensee"), signing the Acceptance Form
attached to this Agreement, reference herein as "Attachment 1" and
incorporated herein by this reference.
WHEREAS the Licensor carries on the business of licensing computer software
and is desirous of making available severally to certain of its
customers, each herein called the Licensee the benefits contemplated
by this agreement, and;
WHEREAS the Licensor has granted or shall grant to the Licensee the right to
use certain computer programs in object form and has agreed or shall
agree to support the programs but wishes to maintain their
confidentiality as trade secrets, and;
WHEREAS the Licensee is desirous of being assured that the source code,
documentation and related materials for such programs will be made
available to it for the purposes of self-support if certain events
named herein occur;
THEREFORE the parties agree as follows:
1. ESCROW MATERIALS
Depositor shall deliver to the Trustee a sealed package containing
magnetic tapes, disks, disk packs, or other forms of media, in machine
readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all
as identified from time to time on Exhibit A hereto. Deposit Materials
shall consist of the source code magnetically or optically stored, and
such supporting documentation and related materials as are necessary
for a reasonably competent programmer to routinely maintain and modify
such code.
2. BENEFICIARIES
All Licensees of the System shall separately become a beneficiary
hereunder upon the signing by the Licensee and Licensor of the
Acceptance Form attached to this Agreement. Amendments introduced in
the Acceptance Form by the agreement of Licensor and Licensee will
supersede any provisions of this Software Escrow Agreement for the
parties signing said Acceptance Form, providing that said amendments
do not modify the rights of the Trustee.
3. DELIVERY AND CERTIFICATION
The following procedure shall be adopted for the presentation and
certification of the Deposit Materials into escrow.
(a) Within 10 days after the signing of this agreement by both
parties, the Trustee shall supply to the Licensor an appropriate sized
container which is capable of being sealed and in which the Deposit
Materials shall be stored.
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First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 29
(b) The Licensor shall thereupon deposit the Deposit Materials into
the said container, identifying it by name and release number, and
shall certify as to the authenticity of the contents in the sealed
container on the form supplied by the Trustee.
(c) The Licensor shall seal the container and shall deliver it to the
Trustee to hold in accordance with the terms of this agreement.
(d) The Licensor will deposit new releases into escrow, and the
Trustee shall retain the latest such deposits and shall return earlier
deposits to the Licensor.
(e) The Trustee shall hold the container in its sealed state and shall
not open, cause or permit it to be opened under any circumstances
whatsoever except as may be permitted under this agreement or
amendments thereto.
4. EVENTS CAUSING RELEASE
The Deposit Materials shall be held in escrow by the Trustee until the
earliest of the following events:
(a) A cessation of the use of the System by the Licensee and the
termination or expiration of its program license agreement with the
Licensor, or the termination or expiration caused or permitted by the
Licensee of the System maintenance and support services portion of the
said program license agreement.
(b) A termination of this agreement by consent of the Licensor and
Licensee, or the Licensee alone.
(c) The occurrence of any of the following events, and provided in all
events that the Licensor has not made suitable alternate arrangements
for the continued supplying of maintenance of the System:
(1) A petition in bankruptcy, or an assignment for the benefit of
creditors of the Licensor is filed by the Licensor, or a third party
against the Licensor and is not dismissed within 30 days of its
filing;
(2) A cessation of normal business operations by the Licensor during
the term of this agreement;
(3) A failure or refusal by the Licensor to provide the System
maintenance and support services required of it under its program
license agreement with the Licensee, which failure has been preceded
by a notice in writing to the Licensor that its continued default
would cause the Licensee to invoke its rights under this agreement
fifteen (15) days after the date of the said notice;
5. RETURN TO LICENSOR
The Trustee shall deliver the Deposit Materials back to the Licensor
if any of the events named in paragraph 4(a) or 4(b) occurs before any
of the events named in paragraph 4(c), provided that a Termination
Notice in the form set out in Schedule A and signed by the Licensor
and the Licensee has been delivered to the Trustee along with the
balance of any fees and charges that are due, and further provided
that no other Licensee is a beneficiary under this agreement at the
time.
6. DELIVERY TO LICENSEE
The Trustee shall deliver a copy of the Deposit Materials to the
Licensee if any of the events named in paragraph 4(c) occur before any
of the events named in paragraphs 4(a) or 4(b), provided that the
procedure set out below has been followed and the conditions met.
(a) The Licensee has delivered to the Trustee a written request for
the release of the Deposit Materials, accompanied by a sworn affidavit
in a form satisfactory to the Trustee from a senior officer of the
Licensee stating the particulars of the reasons for its request.
(b) A copy of the request and affidavit have been delivered by the
Trustee to the Licensor, and the Licensor has received at least the
notice period named in paragraph 4(c)(3).
(c) No dispute in writing has been received from the Licensor by the
Trustee within ten (10) days of the Licensor's receipt of the
Licensee's request and affidavit.
(d) The Licensee has signed a non disclosure covenant in the form set
out in Exhibit B and delivered it to the Trustee.
(e) All outstanding charges under this agreement have been paid to the
Trustee, and the Licensee has paid copying and delivering costs
incurred by the Trustee.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 30
7. DISPUTES AND ARBITRATION
If the Licensor enters a dispute as contemplated by paragraph 6(c) then the
procedure set out below shall be followed before the Deposit Materials
is delivered to the Licensee.
(a) The Licensor and Licensee shall within ten (10) days after the
entering of a dispute name an arbitrator to decide whether the
Licensee is entitled to receive the Deposit Materials. If they are
unable to agree upon the selection of an arbitrator then the Trustee
shall make the said selection.
(b) The arbitration shall otherwise be conducted in San Diego,
California in accordance with the Rules of the American Arbitration
Association and the Trustee shall immediately upon the expiry of any
appeal period carry out the decision of the arbitration.
8. VERIFICATION PROCEDURE
In order to verify the authenticity of the contents of any container deposited
by the Licensor and being held in escrow the Licensee may at any time
call for its inspection in the manner and subject to the conditions
below.
(a) The Licensee shall notify the Licensor and the Trustee in writing
of its demand to inspect the contents of a container, and such
notification shall be made at least 30 days in advance of the date
appointed for such inspection.
(b) The Trustee shall appoint the location for such inspection.
(c) The Trustee shall attend at the appointed time and place and shall
thereat produce the sealed container in question.
(d) The contents of the container shall be removed and inspected by
the Licensee and a determination made as to whether they are as
purported by the Licensor on its certificate.
(e) If the contents are determined to be as purported, they will be
resealed and returned to the Trustee to continue to hold in escrow.
The Licensee shall pay all costs associated with the inspection,
including machine time, operating personnel, travel, food, lodging and
a reasonable per diem fee for the attendance of all the parties
attending at the inspection.
(f) If the contents of the container are determined not to be as
purported, then Licensor shall pay all of the costs named in sub
paragraph (e) and shall also forthwith deliver to the Trustee a copy
of the authentic software as purported on the Licensor's
certification, and the Licensee may first verify that the same are
authentic.
9. DUTIES OF TRUSTEE
(a) The Trustee shall store the sealed containers in a safe and secure
location of its own choosing.
(b) The Licensor may direct the Trustee to store the sealed containers
in a location selected by the Licensor, in which event the Trustee
shall comply with such direction provided that access to the location
is under the Trustee's control and that any additional costs incurred
by the Trustee in using the site are paid by the Licensor.
(c) The Licensor represents that Deposit Materials do not require any
storage conditions other than office environment conditions.
(d) The Trustee shall exercise reasonable judgment in the handling of
the Deposit Materials in the event of a dispute and shall not be
liable to either party except for grossly or deliberately negligent
conduct.
10. FEES, CHARGES AND TERM
The Licensor shall pay to the Trustee the following fees and charges:
(a) An annual fee of $500.00 US payable upon execution by the Licensor
of this Agreement and on each anniversary date thereafter unless
earlier terminated by either party.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 31
(b) This agreement shall continue thereafter on a yearly basis unless
terminated by either party by giving the other at least ninety (90)
days written notice prior to any anniversary date, and provided that
all named beneficiaries have either ceased to hold a use license for
the System or have consented to the termination of this agreement by
signing the Termination Notice attached to this Agreement , reference
herein as "Attachment 2" and incorporated herein by this reference.
(c) A fee of $50.00 US per container per year or part year for each
container in excess of one being held by the Trustee at any given time
payable on the anniversary date of this agreement.
(d) A fee of $25.00 US per written notice delivered by the Trustee
under paragraph 6(b).
(e) A charge representing all expenses incurred by the Trustee for
media, copying, shipping, delivery, and special storage requested by
the Licensor payable on receipt of account.
f) The term of this agreement shall continue so long as any
beneficiary has rights under it.
11. DEFAULT IN PAYMENT
In the event of non-payment of any fees invoiced by the Trustee, the
Trustee shall give notice of non-payment of any fee due and payable
hereunder to the Licensor and, in such an event, the Licensor shall
have the right to pay the unpaid fee within ninety (90) days after
receipt of notice from the Trustee. If Licensor fails to pay in full
all fees due during such ninety (90) day period, the Trustee shall
give notice of non-payment of any fee due and payable hereunder to the
Licensee and, in such event, the Licensee shall have the right to pay
the unpaid fee within ten (10) days of receipt of such notice from the
Trustee. Upon payment of the unpaid fee by either the Licensor or
Licensee, as the case may be, this Agreement shall continue in full
force and effect until the end of the applicable term. Failure to pay
the unpaid fee by both Licensor and Licensee shall result in
termination of this Agreement. In such event the Trustee shall return
the Deposit Materials to the Licensor.
The remedies above do not exclude any other remedies that are
otherwise available to the Trustee.
12. INSPECTION
For the purpose of insuring that any sealed container delivered to and
held by the Trustee under this agreement remains in a sealed state,
either the Licensor or the Licensee may at any time demand to inspect
such container at the offices of the Trustee, and the Trustee shall
produce such container on a timely basis for inspection.
13. NOTICES
Any notice required to be given in writing under this agreement shall
be given by prepaid certified or registered post, return receipt
requested, to the respective addresses above first mentioned or to
such other addresses as the parties may from time to time direct.
14. TITLE
Title to the Deposit Materials shall remain in the Licensor either in
its own right or as agent for the owner. The Trustee shall have title
to the physical storage medium but not to the Deposit Materials
residing on it.
15. GOVERNING LAW
This agreement shall be governed in accordance with the laws of the
State of California without giving effect to its conflict of laws
provisions .
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 32
16. ENUREMENT
This agreement shall be binding upon and inure to the benefit of
parties and the beneficiaries named by the Licensor and the assignees
of each of them. This agreement may not be assigned by the Trustee
without the prior written consent of the Licensor.
17. ENTIRE AGREEMENT
This Agreement, which includes the Acceptance Form and the Exhibits
described herein, embodies the entire understanding among all of the
parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or
written. The Trustee is not a party to the License Agreement between
Licensor and Licensee and has no knowledge of any of the terms or
provisions of any such License Agreement. Trustee's only obligations
to Licensor or Licensee are as set forth in this Agreement. No
amendment or modification of this Agreement shall be valid or binding
unless signed by all the parties hereto.
IN WITNESS WHEREOF the parties have by their representatives so
authorized executed this agreement to go into force on the date below
first mentioned.
---------------------------------- ------------------------------------
Lincoln-Parry SoftEscrow, Inc. ImageWare Software, Inc.
By: By:
------------------------------- ---------------------------------
Title: Title:
---------------------------- ------------------------------
Date: Date:
---------------------------- ------------------------------
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 33
EXHIBIT A - LIST OF ESCROW MATERIALS
Al. PRODUCT NAME: _Crime Capture System
Version #: Generic 2.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
Items Deposited:
<TABLE>
<CAPTION>
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD I CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Crime Capture System. 98,
GENERIC. NT
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
</TABLE>
A2. PRODUCT NAME: _Crime Capture System
Version #: Arizona 1.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD 2 CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Crime Capture 98,
System. ARIZONA. NT
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
--------------- ----------------- -------------------------------------------------- ---------------- -----------------
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 34
A3. Product Name: Face ID
Version #: 1.1
Prepared/Confirmed by:____________________________________________________
Title:_________________________________________ Date:________________
Signature:______________________________
Type of deposit:
______ Initial Deposit
______ Update Deposit to replace current deposits
<TABLE>
<CAPTION>
--------------- ----------------- --------------------------------------------------- ---------------- -----------------
Label Media Type Description of Material Operating Hardware
System Platform
--------------- ----------------- --------------------------------------------------- ---------------- -----------------
<S> <C> <C> <C> <C>
SCD 3 CDROM Source Code and Documentation for Windows 95, PC
C.R.I.M.E.S Shell, Face ID. 98,
NT
--------------- ----------------- --------------------------------------------------- ---------------- -----------------
--------------- ----------------- --------------------------------------------------- ---------------- -----------------
</TABLE>
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 35
ATTACHMENT I- ACCEPTANCE FORM
Image Ware Software Inc. and Lincoln-Parry SoftEscrow Inc., hereby acknowledge
that __________ is a Beneficiary referred to in the Software Escrow
Agreement number , effective ___________, 19___ with Lincoln-Parry
SoftEscrow as the Trustee and ImageWare Software Incorporated as the
Licensor. Licensee hereby agrees to be bound by all provisions of such
Agreement.
The Licensee's rights under this Agreement shall relate to the Deposit Materials
in those container(s) held by the Trustee for which the Licensee has a
valid license agreement that is not in arrears or otherwise in
default, at such time as those rights are exercised.
Programs of the software licensed by the Licensee:
1. Crime Capture System. Generic. CD-ROM SCD 1.
2. Face ID. CD-ROM SCD 3.
3.
4.
Notices and communications to Licensee Company Name:_________________________
should be addressed to: Address:____
____
____
Designated Contact:___________________
Telephone:____________________________
Facsimile:___________________
In Witness Whereof, the Licensor and Licensee, have by their representatives so
authorized executed this agreement to go into force on the date first
below written.
____________________________ ______________________________
Licensee Licensor
____________________________
By:_______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title:_______________________
Date:_____________________ Date:________________________
Received by Lincoln-Parry, SoftEscrow, Inc.
By:________________________
Name:______________________
Title:_____________________
Date:______________________
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 36
EXHIBIT B - NON DISCLOSURE COVENANT
TO: ImageWare Software Inc. Date:
(Licensor)
WHEREAS the Licensor and the Licensee are parties to a Software
Escrow Agreement bearing No. and date
pursuant to which the Deposit Materials therein shall be released to
the Licensee by the Trustee, and;
WHEREAS a prior condition of such release is set out in paragraph 6(d)
of the said agreement, namely that the Licensee must first execute
this form of non disclosure covenant and deliver it to the Trustee;
THEREFORE the Licensee covenants as follows for the benefit of the
Licensor:
1. To hold the Deposit Materials in the strictest of confidence, recognizing
that it is a valuable trade secret of the Licensor and that its
improper disclosure will cause substantial and irreparable injury to
the Licensor.
2. To restrict the use of the Deposit Materials solely and exclusively for the
purpose of supporting and developing the Licensee's own installation
and for no other purpose whatsoever.
3. To restrict disclosure of the Deposit Materials or any part thereof to only
those of the Licensee's employees or agents who have a bona fide need
to know, and who have received written notice of the confidential
nature of the Deposit Materials and have agreed to abide by these
restrictions.
4. Not to make any copy (other than for back up), derivation, translation or
imitation of the Deposit Materials, or to use any of its algorithms,
designs or architecture in producing another program.
5. To fully observe and perform all other obligations which may bind the
Licensee under any other agreement which exist between it and the
Licensor.
---------------------------------
Licensee
<PAGE>
ATTACHMENT 2 - TERMINATION NOTICE
TO: Lincoln-Parry SoftEscrow, Inc. Date:
400 Inverness Drive South
Suite 200
Englewood, CO 80112
TAKE NOTICE THAT the Licensor and the Licensee being parties to a
Software Escrow Agreement bearing No.
and date do hereby terminate the said agreement as of
the date of this notice and direct you to deliver the Deposit
Materials thereunder held by you to the Licensor forthwith.
---------------------------------------
Licensor
---------------------------------------
Licensee
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 38
EXHIBIT D
AGREEMENT FOR MAINTENANCE OF HARDWARE AND
SOFTWARE.
D.1 TERM.
D.1.1 TERM DEFINITION: For the purposes of this section the remainder of
calendar year 1999 will be considered a complete maintenance year. All
subsequent maintenance years will begin on January 1, and end on
December 31, of that calendar year. (Example, the end of year two
will be considered to be December 31, 2000, year three December 31,
2001 and so forth.)
D.1.2 INITIAL TERM. The initial term of this Agreement shall commence on
the date of Acceptance as specified in the First Amendment to the
Purchase and License Agreement and shall extend for five (5) years
following ending on December 31, 2003.
D.1.3 RENEWAL TERMS. This Agreement shall be renewed thereafter,
automatically for successive one-year terms, but not more than ten
(10) such terms unless Buyer gives Seller ninety (90) days prior
written notice of its intention not to renew this Agreement, provided
however that Sell shall be entitled, beginning upon the commencement
of the first such renewal term (beginning January of the 6th calendar
year), to increase the charges payable by Buyer pursuant to paragraph
D.4.
D.2 MAINTENANCE SERVICE TO BE PROVIDED.
D.2.1 GENERAL. During the initial term of this Agreement, and any renewal
term thereof, Seller shall provide to Buyer maintenance service with
respect to the System consisting of (I) Preventive Maintenance as
described in paragraph D.2.2, (ii) Remedial Maintenance as described
in paragraph D.2.3, and (iii) Extra Services as described in paragraph
D.2.4, all in accordance with and subject to the terms and conditions
of this Agreement.
D.2.2 PREVENTIVE MAINTENANCE. Preventive Maintenance shall consist of all
maintenance service, other than Excluded Services as defined in
paragraph D.2.5, performed by Seller in accordance with a
predetermined schedule and independently of any System Failure, for
the purpose of maintaining the System in good working order.
Preventive Maintenance, which shall require quarterly, semi annual,
and annual maintenance work and shall be performed by locally-based
(Western Washington) Seller personnel on normal working days between
the hours of 8:00 a.m. and 4:30
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 39
p.m. or as otherwise arranged. Pursuant to the provisions of the
Seller's maintenance manual and in accordance with a schedule mutually
acceptable to Buyer and Seller, consistent with Buyer's operating
requirements and the specific needs of the System as determined by
Seller from time to time.
For the purpose of this agreement, Normal Business Hours shall be from
8:00 a.m. to 4:30 p.m. on working days, i.e. Monday - Friday except
holidays.
D.2.2.a. QUARTERLY MAINTENANCE shall include, but not limited to, Seller's
personnel performing a quality control check of the system to assure
Buyer that the system is performing at the prescribe standards for
System functionality.
D.2.2.b. SEMI ANNUAL MAINTENANCE shall include the Quarterly Maintenance in
addition, but not limited to, a general cleaning of the system.
D.2.2.c. ANNUAL MAINTENANCE shall include a thorough inspection, cleaning,
hardware alignment, and general system check to preserve image and
system performance quality.
D.2.3 REMEDIAL MAINTENANCE. Remedial Maintenance shall mean all maintenance,
other than Excluded Services, reasonably required as a result of, and
for the purpose of correcting, a System Failure. For purposes of this
Agreement, System Failure shall mean any malfunction in the System
that prevents or materially interferes with, the accomplishments of
any or all of the System intended functions, which are expressed in,
but not limited to those in, Exhibit A.II of the First Amendment to
the Purchase and License Agreement. Following any identification of
any System Failure by Buyer, and Buyer's completion of the diagnostic
checklist and procedures recommended by Seller in the User
Documentation Set, Buyer shall provide notification thereof to Seller.
In the event of any software failure, Seller shall thereafter make a
good faith effort to cause the appropriate software support person to
respond to the Buyer within 30 minutes of the notification with an
update as to cause and/or possible solutions. Software support shall
be available 24 hours per day 7 days each week including holidays
regardless of the severity of the software failure.
In the event of any hardware failure, Seller shall thereafter make a
good faith effort to cause an authorized representative of Seller to
arriver at the location where the System is installed no later than
four (4) hours following Seller's receipt of such notification. Seller
shall from time to time advise Buyer of the name(s) and location(s) of
locally-based seller personnel authorized to receive such
notifications and Seller shall ensure that such personnel are
available to Buyer at all times that the System is scheduled by Buyer
to be in operation. Hardware support shall be available 7 days per
week 24 hours per day for critical
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 40
items as defined in PARAGRAPH D.2.3.1, and during normal work days and
hours for non critical items as defined in PARAGRAPH D.2.3.2.
D.2.3.1 CRITICAL ITEMS: All Seller hardware associated with the Server, Seller
supplied interfaces, and Capture Stations that prohibit the Buyer from
performing their day to day duties associated with the capture and
storage of mug photo images or as defined as System Downtime under
paragraph D.6.1 shall be considered as CRITICAL ITEMS. The only
hardware exception to this paragraph will be the printers.
D.2.3.2 NON CRITICAL ITEMS: All Seller supplied hardware items not mentioned
in paragraph D.2.3.1 will be considered non critical items and shall
be repaired during the Seller's normal work hours. This will include
the printers associated with any capture station and display stations.
D.2.4. EXTRA SERVICES. Extra Services shall consist of any maintenance
services with respect to the System, other than Preventive Maintenance
and Remedial Maintenance, including without limitation, Excluded
Services. Seller shall be under no firm obligation to perform any
Extra Service but undertakes to make a good faith effort to render
such services to the extent that it is capable of doing so without
substantially interfering with its other obligations under this
Agreement or its obligations to other customers. If so requested by
Buyer, Seller shall provide a written estimate of extra charges likely
to be incurred or accrued as a result of the performance of such
services, to the extent such services can be reasonably ascertained in
advance.
D.2.5. EXCLUDED SERVICES. For the purpose of this Agreement, Excluded
Services shall be defined as; Any maintenance services necessary or
appropriate in order to correct any System Failure, or potential
failure, attributable in whole or in part to any of the following
factors or any combination thereof.
D.2.5.1 Failure by Buyer to provide or maintain a suitable installation
environment as the System Site in accordance with the operations
documentation furnished to Buyer pursuant to PARAGRAPH 14 of the First
Amendment to the Purchase and License Agreement and any other
reasonable requirements thereafter communicated in writing by Seller
to Buyer, including without limitation, any electrical power, air
conditioning, or humidity control failure or changes to the
environment of the System Site as defined in the documentation
pursuant to PARAGRAPH 14.
D.2.5.2 Use of supplies or materials not approved by the Seller, or by the
equipment manufacture.
D.2.5.3 Use or attempted use of the System for any purpose other than that for
which it was acquired. (This does not include the Personal Computers
(PCs) that have the
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 41
Investigate Software installed on them as they are intended to be
multi-use computer stations.)
D.2.5.4. Alterations to the System (other than alterations installed by the
Seller or authorized in writing by the Seller).
D.2.5.5. Connection of the System by mechanical or electrical means to any
other machine, equipment or device (other than those installed by the
Seller or authorized in writing by Seller) other than normal network
connections
D.2.5.6. Removal, transportation or relocation of the System by any person
other than the Seller, unless authorized by Seller in writing.
D.2.5.7 Neglect or misuse of the System by Buyer or any third party, except
persons for which the Seller is responsible under this Agreement.
D.2.5.8 Any other intentional or negligent damage to the System by the Buyer
or third party except for prospective customers of the Seller for
which Seller is responsible.
D.2.5.9 Any other failure by Buyer to comply with its obligations under this
agreement or the Purchase and License Agreement.
D.2.5.10 Any event of force majeure, as defined in paragraph 23.g, or any
other cause other than ordinary use, unless otherwise authorized in
writing by the Seller.
D.2.5.11 Any maintenance services to be performed on any software, hardware
or other item not furnished by Seller to Buyer or any other work
external to the System by anyone other than the Seller.
D.2.6 WARRANT. For and in consideration of Buyer's undertakings under this
Maintenance agreement, or any extension or renewal thereof, Seller
warrants that System Downtime, as defined in paragraph D.6.1, shall
not exceed 15 hours per calendar month.
D.2.7 NEW PARTS. Seller will provide maintenance parts at no cost to Buyer.
All such parts will be new or parts equivalent to new parts when used
in connection with the System. Parts removed from the System pursuant
to this Agreement shall become the property of the Seller. Parts
installed in the System pursuant to this Agreement shall become the
property of the Buyer.
D.2.8 REPLACEMENT OR REPAIR. In performing Preventive Maintenance and
Remedial Maintenance, Seller shall be entitled to exercise reasonable
discretion in determining whether to replace or repair any
malfunctioning item, provided, however, that any such replacement
shall be of equal or better quality and, in the event of a malfunction
of key circuit boards, to be specified by Seller, a
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 42
replacement board will be provided pending completion of repairs on
the defective board.
D.2.9 DIAGNOSTIC SOFFTWARE. In order to facilitate rapid analysis of System
Failure involving software, Seller will provide a trained staff, at
their company location, capable of handling all software failures in
an expedient manner. In addition they will have diagnostic software
for the purpose of identifying the cause of any System Failure,
temporarily patching around the problem if necessary or temporarily
disabling the use of that software module so that the System can be
returned to use for all other activities with only a minor degradation
in operation.
D.2.10 OFF-SITE MAINTENANCE: Any maintenance services required to be
performed under this Agreement which cannot, in the Seller's
reasonable judgment, be performed effectively at or near the System
Site shall be performed at such other location(s) as Seller may
determine, at no extra cost to Customer. However, a loaned part(s)
from the Seller's warehouse must be installed prior to the shipping of
the item(s) being removed for maintenance.
D.2.11 LOG ENTRIES: Buyer shall receive monthly or have access to all log
entries with regards to system failures, and any other malfunctions,
problems, or defects in the System, in accordance with a format to be
provided by Seller. Upon completion of each Preventive Maintenance
task, Remedial Maintenance task, or Extra Service, Seller shall
provide a written report to the Buyer of the problem, resolve, and any
equipment replaced. This shall be kept in a binder on site at each
capture station and display station location.
D.2.12 NOTIFICATION: Seller shall notify Buyer of all routine, scheduled,
unscheduled, and non-routine maintenance completed o the system. This
notification shall include the Buyer's reference number (if
maintenance was a result of a problem call), seller's reference
number, point of contact for the maintenance and a description of the
maintenance or correction. Notification will be provided to the person
reporting the problem and/or Buyer's maintenance contact.
D.2.13 BUYER'S MAINTENANCE CONTACT:
LESA HELPDESK
2415 So 35th Street
Tacoma, WA 98409
(253) 798-3911
E-mail Helpdesk@lesa.net
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 43
D.3. MAINTENANCE PAYMENTS:
The maintenance payments referred to in PARAGRAPH 7 of the Agreement will be
paid as follows and on dates set forth in PARAGRAPH 7 of the Agreement.
D.3.1 There will be no maintenance payments from the acceptance date of the
CCS Mug Photo Identification System (MUGIS) to the end of 1999. This
will be considered the end of year one.
D.3.2 There will be no maintenance payments for the period of January 1,
2000 ending on December 31, 2000. This will be considered the end of
year two.
D.3.3 Beginning January 1, 2001, and ending December 31, 2002, the monthly
maintenance fee (paid quarterly as defined IN PARAGRAPH 7 of the
Agreement) will be Four thousand five hundred twenty-eight dollars and
seventy cents ($4,528.70). The monthly fee is combination of the
annual fee of Forty-three thousand four hundred seventy-five dollars
and fifty-one cents ($43,475.51) divided by twelve (12) months plus an
addition 25 percent supplement charge of Ten thousand eight hundred
sixty-eight dollars and eighty-eight cents ($10,868.88) divided by
twelve (12) months. The quarterly payment will be Thirteen thousand
five hundred eighty-six dollars and ten cents ($13,586.10). December
31, 2001 will be considered the end of year three (3) and December 31,
2002, will be considered the end of year four (4).
D.3.4 Beginning January 1, 2003, and ending December 31, 2003, the monthly
maintenance fee will be reduced to one-twelve (1/12th) of the original
annual maintenance fee of Forty-three thousand four hundred
seventh-five dollars and fifty-one cents ($43,475.5 1). This base sum
adjusted by the lesser of an amount equal to the most recent twelve
month percentage change in the Seattle Consumer Price Index or five
(5) percent. This will be paid quarterly as defined in paragraph 6 of
the Agreement. The period of January 1, 2003, ending on December 31,
2003, will be considered the end of the fifth year.
D.3.5 INDEXATION. Beginning at the commencement of the first annual renewal
term after the completion of the initial five (5) year term, and with
each annual renewal term thereafter, the base sum amount for the term
just expired, shall be adjusted by the lesser of an amount equal to
the most recent twelve month percentage change in the Seattle Consumer
Price Index or five (5) percent.
D.4 INVENTORY:
Seller agrees to maintain a complete inventory of spare parts at a
location in the Greater Western Washington area, including a set of
the key circuit boards referred to in PARAGRAPH D.2.8. Such inventory
may be used to support systems supplied by Seller to other customers.
Seller shall maintain at such location a supply of all test equipment
reasonably required for diagnosis of System Failures.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 44
D.5 CHARGES PAYABLE BY CUSTOMER:
D.5.1 GENERAL. In consideration for the maintenance service to be
rendered by Seller under this Agreement, Buyer agrees to pay
to Seller (i) the Basic Monthly Charge described in Section
D.3, and (ii) the Supplemental Charges described in
paragraph D.3.3.
D.5.2 ADDITIONAL CHARGES. In addition for any Extra Services
performed by Seller, Buyer shall pay Seller's list price for
any parts, service, or software, in order to perform
relevant Extra Services, less any discount offered to other
favored Buyer.
D.5.3. INVOICES. All amounts due by Buyer under this Agreement shall
be payable to Seller in United States currency within thirty
(30) days of presentment of Seller's invoice. Seller shall
normally submit invoices on a monthly basis. In the event
such amount is not timely paid, Seller shall be entitled to
suspend performance of service under this Agreement, in
whole or in part, and any such downtime occurring during
such period shall be disregarded. In the event that any
amount shall be overdue by more than ninety (90) days,
Seller shall be entitled to terminate this Agreement.
D.5.4. DUTIES, TAXES, AND FEES.
D.5.4.1 Seller shall bear the cost of all import and export
duties, any brokerage, and all other fees due on
any replacement parts for the System.
D.5.4.2 Seller shall not be responsible for collecting
sales tax on the original purchase or monthly
maintenance fees. Buyer will be responsible for
paying all appropriate State and local sales or use
taxes on the original purchase and monthly
maintenance fees if so levied by the State of
Washington, directly to the State.
D.6 REDUCTION IN CHARGES, LIQUIDATED DAMAGES:
D.6.1 15 hours of System Downtime per Calendar Month. In the event
that System Downtime exceeds 15 hours in any calendar month,
excluding the first two years of operation after acceptance,
as defined in PARAGRAPH D.3, the Basic Monthly Charge for
said month shall be reduced by ten (10) percent for each
additional seven (7) hours or fraction thereof of system
downtime up to one hundred percent. The first two years of
the
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 45
Agreement will be governed by PARAGRAPH D.6.2(ii). "System
Downtime" is defined as that period of time during which any
malfunction in the system which prevents, or materially
interferes with the accomplishment of any or all the System's
intended functions in accordance with software specification
or functions set forth in EXHIBIT A.II of the Agreement,
(except as noted in paragraph 11 of the Agreement) or of the
tasks of processing (data and image capture, storage,
searching, photo lineup) mug photo images from the time the
Seller has been properly notified of such failure and after
completion of the diagnostic checklist and procedures
recommended by Seller. System downtime shall not include the
time that the System is inoperable due to (i) Scheduled
Preventative Maintenance, (ii) equipment cables, wires,
programs or other items, not supplied by Seller, which are
not rendered inoperable by the System provided by the Seller,
(iii) any event described in PARAGRAPH 23.G (FORCE MAJEURE)
of the Agreement, (iv) Buyer's negligence or knowing misuse
of the of the System, equipment, cables, wires, programs, or
other items, or any other act or omission of Buyer or any
third party (other than a prospective customer of Seller for
which Seller is responsible under any other provisions of
this Agreement) or (v) any travel time, and system and
problem analysis time of up to one (1) hour for software
support or four (4) hours for hardware support beginning when
Seller has received notification of each separate and
unrelated problem as distinguished from a re-occurring
problem within a 24-hour period.
D.6.2 180 HOURS OF SYSTEM DOWNTIME IN 3 CALENDAR MONTHS. In the
event that the System Downtime, as defined in paragraph D.6.1
exceed 180 hours within a period of 3 consecutive calendar
months after Acceptance, the Buyer shall be entitle to (i)
suspend payment of the maintenance monies due to Seller, and
to (ii) payment of liquidated damages of $750 per day until
30 days of continuous availability at the contracted level of
occurs, less 30 days.
D.7 TERMINATION.
In the event that an arbitration award for either party's default
under the Maintenance Agreement shall remain unsatisfied, for more
than thirty (30) days after the award or any judgment thereon shall
become final, the other party shall be entitled to terminate this
Maintenance Agreement, and recover amounts due under the Maintenance
Agreement, provided that the party has given written notice thereof to
the other of its intent to do so not less than thirty (30) days prior
to the specified date upon which the termination shall become
effective.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 46
D.8 MISCELLANEOUS OBLIGATIONS OF BUYER:
Buyer shall comply with the following additional obligations:
D.8.1 PRUDENT OPERATION. Buyer shall operate the System in a sound
and prudent manner, in accordance with the operation manuals
prepared by Seller and any other rules reasonably promulgated
by Seller from time to time, provided, however, that such
rules do not unduly interfere with the Buyer's use of the
System or appreciably increase Buyer's operating costs with
respect hereto.
D.8.2 NOTIFICATION. Buyer shall promptly notify Seller of any
System Failures or any other malfunctions, problems or
defects in the system.
D.8.3 FREE ACCESS. Buyer shall allow Seller full and free
access to the System at all times necessary for the
performance of Preventive Maintenance and Remedial
Maintenance, and shall ensure that the System Site can be
connected at all times through the server to assist with the
diagnostic assessment of the System Site equipment and
software.
D.8.4 USE OF EQUIPMENT. Buyer shall allow Seller to use such
machines, communication facilities and other equipment, at no
charge to Seller, as are reasonably necessary in order to
perform the services hereunder, provided, however, that all
toll calls are the responsibility of Seller.
D.9 DOCUMENTATION, MODIFICATIONS, AND RELOCATION.
D.9.1 DOCUMENTATION. Throughout the duration of this Agreement,
Seller will provide the Buyer, at no cost to Buyer, any and
all updates to the documentation that Seller generally
provides to its Buyers with respect to the System, within
thirty (30) days of Buyer's request for same. Except as
otherwise provided in this Agreement, the foregoing
obligation does not extend to any improvements in Seller's
software or hardware that do not significantly alter the
general operation of the System.
D.9.2 MODIFICATIONS. Any modifications of the System, which are
requested by Buyer, may be treated as Extra Services. No
modifications to correct malfunctions improve proficiency,
met SAT requirements, or updates provided by the Seller will
be considered Extra Service.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 47
D.9.3 RELOCATION OF EQUIPMENT. Buyer shall give Seller fifteen (15)
days prior written notice of the relocation of the System
from its current site location. Upon request, Seller may
inspect the proposed new location of the System to generally
assess whether the environment is suitable. The relocation of
any Workstation shall be done by Seller's representative and
at Buyer's expense.
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 48
EXHIBIT E
INSTALLATION SCHEDULE
FORCEFLELD UPGRADE INSTALLATION TIME LINE
ImageWare see the ForceField upgrade taking place in the following manner:
1. System Configuration Review
2. NT Configuration Plan
3. Existing Hardware Audit
4. Install LESA Capture Station
S. Back up of current server
6. Server Installation: No downtime
The server will be installed at the same time as the capture stations
are upgraded.
7. Test Interface to DTM
8. Upgrade each capture system. 1 day per station
After the upgrade, the capture station will be able to capture data in
standalone mode. Once the new server is on line, images and data will
be forwarded to the new server.
9. Server Configuration: 3 days
A data conversion will take place and the server will be down for
approximately 3 days. During this time the new capture stations will
continue in stand alone mode and data will be forwarded to new server
once it is on line. (Display stations will be down at this time.)
<PAGE>
First Amendment - Purchase and License Agreement
LESA - ImageWare CCS Contract page 49
FORWARD DATA:
All data captured in stand-alone mode will be forwarded to the new NT server.
DISPLAY STATION UPGRADE: 2 hours per station
Display stations will be upgraded after the server is on line. (There is a
possibility we will upgrade display stations during the server data
conversion if time permits.) Once all display stations are upgraded,
they will go on-line.
ImageWarewill make every effort to minimize the time the system is not
operational, however, please be aware the agency will incur some
downtime. ImageWare is open to working with the agency to determine
three consecutive days which are the least busy.
<PAGE>
David Cotton - Pierce Tacoma Upgrade New.xls Page
EXHIBIT F PRICE SHEET
<TABLE>
<CAPTION>
DESCRIPTION QTY UNIT EXT
<S> <C> <C> <C>
IBM Netfinity 5500 Pentium III 500MHz/512KB L2, 128MB ECC(R), OPEN,32X,PCI/ISA 1 $6,834.00 $6,834.00
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 500/100 MHz Pentium III Processor with 512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) IBM Netfinity 128MB SDRAM ECC RDIMM
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM Netfinity 400W Hot-Swap Redundant Power Supply II 1 $720.00 $720.00
IBM Netfinity 256MB SDRAM ECC RDIMM 2 $1,140.00 $2,280.00
18 2GB 10K Wide Ultra SCSI SCA-2 Hot Swap HDD 5 $1,020.00 $5,100.00
IBM Netfinity 500MHz/512KB Upgrade with Pentium III Processor 1 $1,860.00 $1,860.00
ISA 56K/33 6KBPS Plug and Play Data/Fax Modem 1 $126.00 $126.00
G74 - 17(15.9)in. Color Monitor, 69 KHz, Stealth Grey 1 $423.60 $423.60
Smart-UPS 1400 17 Min Runame 1 $705.60 $705.60
SUBTOTAL
CAPTURE STATION HARDWARE
IBM PC 300 PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98, PCVISA 5 $1,758.00 $8,790.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White 5 $561.60 $2,808.00
SUBTOTAL
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 5 $4,342.80 $21,714.00
Cosmicar/Pentax H15ZME Zoom Lens 5 $1,341.60 $6,708.00
3 point Lighting System 5 $1,194.00 $5,970.00
Pan and Tilt Camera mount 5 $1,440.00 $7,200.00
Reflective Pedestal 5 $822.00 $4,110.00
Cable bundle 5 $180.00 $900.00
NIST compliance Capture software 5 $1,500.00 $7,500.00
Capture Card MVPro 5 $804.00 $4,020.00
SUBTOTAL
INVESTIGATIVE STATION HARDWARE
IBM PC 300PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98,PCVISA 4 $1,758.00 $7,032.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Internet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512 KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32x Max (Variable Speed)
(Std) IBM 1.44MB 3.5-inch Cassette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White 4 $561.60 $2,246.40
SUBTOTAL
SOFTWARE
CCS Investigative Display Software (Full) 4 $6,750.00 $27,000.00
CCS Capture Station Software 5 $10,000.00 $50,000.00
Investigative Mugbook 50 $500.00 $25,000.00
SUBTOTAL
PRINTERS
Mitsubishi CP 700 6 $3,900.00 $23,400.00
HP Laserjet B&W, 400CTN, 17PPM, 1200DPI 9 $2,284.50 $20,560.50
SUBTOTAL
SCANNERS
Epson 636 Executive Scanner w/ SCSI card 2 $846.45 $1,692.90
SUBTOTAL
SUBTOTAL HARDWARE AND SOFTWARE
SERVICES and LICENSES
Project Management 2 $900.00 $1,800.00
Conversion of Record from ForceField 500,000 $0.20 $100,000.00
SUBTOTAL
SUBTOTAL PROJECT
FORCEFIELD UPGRADE DISCOUNT
SUBTOTAL AFTER DISCOUNT
Shipping/Handling/Installation/Training
TOTAL PROJECT
Maintenance Year 1
Quote does not include conversion of any documents.
<CAPTION>
Price
DESCRIPTION TOTAL DISCOUNT % after Discount
<S> <C> <C> <C>
$0.00
IBM Netfinity 5500 Pentium III 500MHz/512KB L2, 128MB ECC(R), OPEN,32X,PCI/ISA $6,834.00
(Std) 10/100 PCI Ethernet
(Std) 2-Drop 16-bit SCSI Internal Cable
(Std) 32X Max IDE CD-ROM Drive
(Std) 500/100 MHz Pentium III Processor wiht 512KB ECC L2 Cache
(Std) IBM 1.44MB 3.5-inch Diskette Drive
(Std) IBM 104-key Keyboard (Stealth Grey)
(Std) IBM Netfinity 128MB SDRAM ECC RDIMM
(Std) Integrated IDE Controller
(Std) Integrated PCI Ultra SCSI RAID Controller - dual channel
(Std) Mouse Stealth Grey
(Std) Netfinity 400W Hot-Swap Power Supply
(Std) Netfinity NetBAY3
(Std) Processor Complex Card
(Std) S3 Trio64 V2 Graphics - 1MB SGRAM
(Std) Systems Management Processor
IBM Netfinity 400W Hot-Swap Redundant Power Supply II $720.00
IBM Netfinity 256MB SDRAM ECC RDIMM $2,280.00
18 2GB 10K Wide Ultra SCSI SCA-2 Hot Swap HDD $5,100.00
IBM Netfinity 500MHz/512KB Upgrade with Pentium III Processor $1,860.00
ISA 56K/33 6KBPS Plug and Play Data/Fax Modem $126.00
G74 - 17(15.9)in. Color Monitor 69 KHz, Stealth Grey $423.60
Smart-UPS 1400 17 Min Runame $705.60
SUBTOTAL $18,049.20
CAPTURE STATION HARDWARE
IBM PC 300 PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98, PCVISA 80% $1,758.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Ethernet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internal 32X Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Diskette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 85KHz, Pearl White $2,808.00
SUBTOTAL $11,598.00
CAMERA SUB-SYSTEMS
Hitachi HV-C20 Camera, NIST standards (3 chip) 100% $0.00
Cosmicar/Pentax H15ZME Zoom Lens 100% $0.00
3 point Lighting System 100% $0.00
Pan and Tilt Camera mount 100% $0.00
Reflective Pedestal 100% $0.00
Cable bundle $900.00
NIST compliance sapture software 100% $0.00
Capture Card MVPro 100% $0.00
SUBTOTAL $58,122.00
INVESTIGATIVE STATION HARDWARE
IBM PC 300PL 6862 (4X4) 2
PC 300PL Pentium II 400MHz MMX/512KB, 64MB, 6.4GB, 4MB, 32X, 16bit Audio, Win98,PCVISA 50% $3,516.00
(Std) IBM 6.4GB EIDE Hard Drive
(Std) 10/100 PCI Internet WOL
(Std) 16-bit ISA Crystal Audio Integrated
(Std) 400/100MHz MMX Pentium II Processor with 512 KB Pipeline B
(Std) 4MB Integrated SGRAM Video Memory
(Std) 64MB 60ns NP SDRAM DIMM
(Std) CD-ROM Drive Internet 32x Max (Variable Speed)
(Std) IBM 1.44MB 3.5 inch Cassette Drive
(Std) IBM 104-key Rubber Dome Keyboard
(Std) Integrated IDE Controller
(Std) S3 Trio3D AGP Graphics Integrated
P72 - 17(16)in. UV-NH Color Monitor, 65KHz, Pearl White $2,246.40
SUBTOTAL $9,278.40
SOFTWARE
CCS Investigative Display Software (Full) 50% $13,500.00
CCS Capture Station Software 50% $25,000.00
Investigative Mugbook 100% $0.00
SUBTOTAL $102,000.00
PRINTERS
Mitsubishi CP 700 $23,400.00
HP Lasernet B&W 400CTN, 17PPM, 1200DPI $20,560.50
SUBTOTAL $43,960.50
SCANNERS
Epson 636 Executive Scanner w. SCSI card $1,692.90
SUBTOTAL $1,692.90
SUBTOTAL HARDWARE AND SOFTWARE $244,701.00 $113,431.00
SERVICES and LICENSES
Project Management $1,800.00
Conversion of Record from Forcefield 100% $0.00
SUBTOTAL $101,800.00
SUBTOTAL PROJECT $346,501.00 $115,231.00
FORCEFIELD UPGRADE DISCOUNT $231,270.00
SUBTOTAL AFTER DISCOUNT $115,231.00
Shipping Handling Installation Training $13,827.72
TOTAL PROJECT $129,058.72
Maintenance Year 1 $44,046.18
Quote does not include conversion of any documents.
</TABLE>
<PAGE>
FIRST AMENDMENT -- PURCHASE AND
LICENSE AGREEMENT
BETWEEN
THE LAW ENFORCEMENT
SUPPORT AGENCY
AND
IMAGEWARE SOFTWARE
INCORPORATED
April 23, 1999