HomeMy WebLinkAboutC-9146-1 - MOU (For Flock Safety Video Dashboard)MEMORANDUM OF UNDERSTANDING
This Data Sharing Memorandum of Understanding (hereinafter "MOU") is entered into
by and between Flock Group, Inc., a Delaware corporation, with a place of business at
2588 Winslow Drive, Atlanta, GA 30305 ("Flock"), and City of Newport Beach, a
municipal corporation and charter city, on behalf of the Newport Beach Police
Department, with a place of business at 870 Santa Barbara Dr, Newport Beach,
California 92660 ("Agency") (each a "Party", and together, the "Parties").
Whereas, Agency desires to access Flock's technology platform and Flock Safety
dashboard (together, the "Flock Service") for investigative purposes, in order to view
and search videos recorded by Flock ("Recordings") which are stored for no longer
than thirty (30) days, utilizing its software for automatic license plate detection;
Whereas, Flock desires to share such videos and supplemental data with Agency
pursuant to the following terms and conditions:
1. Purpose. To allow the Agency to utilize the Flock Services for the following purpose. -
to gain awareness with respect to the communities for which they serve to protect
and facilitate investigations (the "Purpose").
2. Access Rights to Flock Services. Subject to the terms and conditions contained in
this MOU, Flock hereby grants to Agency a non-exclusive, non -transferable right to
access the features and functions of the Flock Service during the Term (as defined
below), solely for use by Authorized Users in accordance with the terms and
conditions herein. For purposes of this MOU, "Authorized Users" will mean
employees, agents, or officers of Agency accessing or using the Flock Services for
the Purpose. Agency acknowledges and agrees that, as between Agency and Flock,
Agency shall be responsible for all acts and omissions of Authorized Users, and any
act or omission by an Authorized User which would constitute a breach of this MOU,
shall be deemed a breach of this MOU by Agency. Agency shall undertake
reasonable efforts to make all Authorized Users aware of the provisions of this MOU
as applicable to such Authorized User's use of the Flock Service, and shall cause
Authorized Users to comply with such provisions.
3. Restrictions on Use. Agency will not, and will not permit any Authorized Users or
any third party to, (i) copy or duplicate any of the Flock Service; (ii) decompile,
disassemble, reverse engineer or otherwise attempt to obtain or perceive the source
code from which any software component of any of the Flock Service is compiled or
interpreted; (iii) modify, alter, or tamper with any of the Flock Service, or create any
derivative product from any of the foregoing; (iv) interfere or attempt to interfere in
any manner with the functionality or proper working of any of the Flock Service; (v)
remove, obscure, or alter any notice of any intellectual property or proprietary right
appearing on or contained within any of the Flock Service; or (vi) assign, sublicense,
sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or
otherwise encumber, Agency's rights under Sections 2. Agency may only access
Recordings and Flock Service to perform the Purpose, as described in Section 1.
Agency shall not use the Flock Service in any manner not permitted by appropriate
governing Federal and State regulations or laws; Agency represents and warrants
that, in receiving access to Flock Services, such video and supplemental data shall
be used solely for purposes authorized by law and described in this MOU.
4. Ownership. As between the Parties, subject to the rights granted in this MOU, Flock
and its licensors retain all right, title and interest in and to the Flock Service, and its
components and any Recordings or data provided by Flock through the Flock
Service, and Agency acknowledges that it neither owns nor acquires any additional
rights in and to the foregoing not expressly granted by this MOU. Agency further
acknowledges that Flock retains the right to use the foregoing for any purpose in
Flock's sole discretion. There are no implied rights.
5. Warranty. Flock and its licensors make no express or implied warranty as to the
conditions of the Recordings, or fitness for a particular research, data, investigative
purpose or resulting actions or omissions resulting from videos and supplemental
data obtained by Agency through the use of Flock Services.
6. Financial Implications to Agency. No financial commitment by Agency is required
to access the Flock Services or Recordings.
7. Term; Termination.
A. Term. This MOU will commence once executed by both parties and shall
continue for a period of Five (5) years.
B. Termination. Prior to expiration of the Term, Flock may terminate this MOU for its
convenience, and in its sole discretion, by providing Agency thirty (30) days prior
written notice of termination. Agency may terminate this MOU for its
convenience, and in its sole discretion, by providing Flock ninety (90) days prior
written notice of termination. Either party may terminate this MOU upon written
notice if the other party has breached a material term of this MOU and has not
cured such breach within thirty (30) days of receipt of notice from the non-
breaching party specifying the breach. Upon termination of this MOU, Agency will
immediately cease all use of Flock Services. This MOU is subject to termination
without written notice after expiration of the Term.
8. Indemnification. Each Party to this MOU shall assume the responsibility and liability
for the acts and omissions of its own employees, deputies, officers, or agents, in
connection with the performance of their official duties under this MOU. Parties shall
indemnify and hold harmless each other against any suits, claims, actions,
complaints, or liability of any kind, which relate to the use of or reliance on Flock
Service. For tort liability purposes, no participating Party shall be considered the
agent of the other participating Party. Each Party to this MOU shall be liable (if at all)
only for the torts of its own officers, agents, or employees that occur within the scope
of their official duties. Under no circumstances shall this MOU be interpreted to
create a partnership or agency relationship between the Parties.
9. Limitation of Liability.
A. Limitation on Direct Damages. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL FLOCK, ITS OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE
FOR ANY AMOUNT GREATER THAN THE FEES PAID TO FLOCK UNDER
THIS MOU, OR $100 IN UNITED STATES CURRENCY, WHICHEVER IS
GREATER, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN
CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY),
PRODUCT LIABILITY OR OTHERWISE.
B. Waiver of Consequential Damages. IN NO EVENT SHALL FLOCK OR ITS
LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD
TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF FLOCK
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Confidentiality.
A. Obligations. During the performance of services and Agency's use of the Flock
Service under this Agreement it may be necessary for a party to provide the
other with certain information considered to be proprietary or confidential by the
disclosing party. The disclosure of such confidential information shall be subject
to the following terms and conditions.
The term "Agency Confidential Information" shall mean any material, data,
systems, procedures and other information of or with respect to Agency that
is not be accessible or known to the general public, including information
concerning its hardware, software, business plans or opportunities, business
strategies, finances, employees, and third -party proprietary or other
information that Agency treats as confidential. Flock shall not use, publish or
divulge any Agency Confidential Information except (i) in connection with
Flock's provision of Software and services pursuant to this Agreement, (ii) to
Flock's officers, directors, employees, agents and contractors who need to
know such information to enable Flock to provide Software and services
pursuant to this Agreement, or (iii) with the prior written consent of Agency,
which consent Agency may withhold in its sole discretion.
ii. The term "Flock Confidential Information" means any material, data, systems,
procedures and other information of or with respect to Flock that is not
accessible to or known to the general public, including, without limitation, the
software, object code, source code, formulae, algorithms, financial data,
clients, employees, software development plans, software support third -party
proprietary or other information that Flock treats as confidential. Agency shall
not use, publish or divulge any Flock Confidential Information except (i) to its
employees, agents and officers who need to know such information to enable
Agency to use the Flock Services, or (ii) with the prior written consent of
Flock, which consent Flock may withhold in its sole discretion.
iii. Each party shall protect the other's confidential information with the same
degree of care normally used to protect its own similar confidential
information, but in no event less than that degree of care that a reasonably
prudent business person would use to protect such information. The
obligations of each party to protect confidential information received from the
other party shall not apply to information that is publicly known or becomes
publicly known through no act or failure to act on the part of the recipient. All
provisions of this MOU concerning the Confidentiality section herein, shall
survive any termination of this MOU.
B. Exclusions. Confidential Information shall not include any information that is (i)
already known to the receiving party at the time of the disclosure; (ii) publicly
known at the time of the disclosure or becomes publicly known through no
wrongful act or failure of the receiving party; (iii) subsequently disclosed to the
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receiving party on a non -confidential basis by a third -party not having a
confidential relationship with the other party hereto that rightfully acquired such
information; or (iv) communicated to a third party by the receiving party with the
express written consent of the other party hereto. A disclosure of Confidential
Information that is legally compelled to be disclosed pursuant to a subpoena,
summons, order or other judicial or governmental process or the Freedom of
Information Act shall not be considered a breach of this MOU; provided the
receiving party provides prompt notice of any such subpoena, order, or the like to
the other party so that such party will have the opportunity to obtain a protective
order or otherwise oppose the disclosure.
11. Entire Agreement. This MOU is complete and contains the entire understanding
between the Parties relating to the sharing of Recordings and Confidential Data by
and between Flock and Agency. This MOU supersedes any and all other
agreements between the Parties. This Agreement is non -assignable by both Parties.
12. Severability. Nothing is this MOU is intended to conflict with or violate State or
Federal laws, regulations, policies, etc. If a term or provision of this MOU is
inconsistent with a law or authority, then that term or provision shall be invalid, but
the remaining terms and provisions shall remain in full force and effect. If any
provision of this MOU is found to be unenforceable, unlawful, or void, the provision
shall be deemed severable from the MOU and shall not affect the validity of the
remaining provisions.
13. Miscellaneous. All notices, requests, demands, or other communications required
or permitted to be given hereunder must be in writing and must be addressed to the
parties at their respective addresses set forth below and shall be deemed to have
been duly given when (a) delivered in person; (b) sent by facsimile transmission To
the facsimile number below and indicating receipt at the facsimile number where
sent; (c) one (1) business day after being deposited with a reputable overnight air
courier service; or (d) three (3) business days after being deposited with the United
States Postal Service, for delivery by certified or registered mail, postage pre -paid
and return receipt requested. This MOU shall be governed by the laws of the state in
which the Agency is located, excluding its conflict of laws rules. The parties agree
that the United Nations Convention for the International Sale of Goods is excluded in
its entirety from this MOU.
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FLOCK NOTICES ADDRESS:
1170 Howell Mill Road, NW Suite 210 Atlanta, GA 30318
ATTN LEGAL DEPARTMENT
EMAIL: legal@flocksafety.com
AGENCY NOTICES ADDRESS:
Newport Beach Police Department
870 Santa Barbara Dr, Newport Beach, CA 92660
ATTN. Sgt. Court Depweg
EMAIL: wdepweg@nbpd.org
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IN WITNESS WHEREOF, Flock and the Agency have caused this MOU to be signed on
the date set forth below and be effective on the last date specified below.
FLOCK GROUP, INC.
By:
rret Langley
Chief Executive Officer
Date: 1 Z_/!4- /Z L
Geh,oral Counsel and Secretary
Date:_21 N6,4,-.cnbyr 7U)Z-2_
APPROVED AS TO FORM:
CITY ATTORNEYY'S OFFICE
Date: 1/ 79/u_-
By:
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ATTEST: .
Date:
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By.
Leilani I. Brown
City Clerk
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