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HomeMy Public PortalAboutAgreement_2015-10-22_GovInvest, Inc_SaaS Licensing AgreementAGREEMENT COVER SHEET Type of Contract ❑ Consultant Services ❑ Professional Services ❑ Public Works ❑ Other: Meeting Date of Approval (only If Applicable) Date Contact Information Name of Company: Sao S I..tcrnstnq A!arecrncn+ Address: Contact Person: Phone Number: Email: Scope (Type of Project) Term of Contract Beginning Date Contract Completion Date Contract Reviewed By ❑ 'ty Manager Q Department Director City Attorney [J No Changes to the Template Y Administrative Services Director ❑ Other: Insurance ❑ Additional Insured Endorsement ❑ Cancellation Provision ❑ General/Auto/Workman Comp. Expiration Date: Notes: Date SaaS Licensing Agreement Prepared for: City of Temple City Prepared by: Jasmine Nachtigall, President October 22, 2015 =w Gov west Insights to your financial future 2 Govinvest Inc. Contact City of Temple City Tracey Hause 9701 Las Tunas Dr. Temple City, CA 91780 (626) 285-2171 thause@templecity.us Services Use of the Standard Pension and OPEB Modules of the Total Liability Calculator (the "Service(s)"). Service Fees: $6,500 per year, payable in advance subject to the terms of section 4 herein. Initial term: 1 year ending 6/30/2016 Implementation Services Company will use commercially reasonable efforts to provide Customer the services described in accordance with the terms herein, and Customer shall pay Company the Implementation Fee in accordance with the terms herein. Implementation Fee (One -Time): $3,000 SERVICE AGREEMENT This SaaS Services Agreement ("Agreement") is entered into on this 22n0 day of October 2015 (the "Effective Date") between Govinvest, Inc. ("Company"), and the Customer listed above ("Customer"), This Agreement. includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Govinvest Inc. By: Our A Name: Jasmine Nachtioall Title: President City of Temple City Gov lnvest InilgFn ro your finennal hw n Govinvest Inc. TERMS AND CONDITIONS 1. SAAS SERVICES AND SUPPORT 1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process. Customer will identity an administrative user name and password for Customer's Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. 1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1 Customer will not, directly or Indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Soltwarej; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. 2.2 Further, Customer may not remove or export from the United Slates or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof In violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other Unile d States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items' and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commer: of computer software documentation.' Consistent with DFAR section 227.7202 and FAR section 12.212, any use moditicaton, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company's standard published policies then in effect One "Policy) and all applicable laws and regulations. (Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, Including, without limitation, modems, hardware, servers. software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords Including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent. 3. CONFIDENTIALITY; PROPRIETARY RIGHTS 3.1 Each parry (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to C ompany to enable the provision of the Services ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and i not to use (except in performance of the Services or as otherwise permitted herein) cr divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with res,)ect to any Govinvest Ins,gl,n [o yam Lnannal lNme Govinvest Inc. information after fhre (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was In its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third parry, or (d) was independently developed without use of any Proprietary Information of the Disclosing Parry or (e) is required to be disclosed by law. 32 Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Impamentation Services or support, and (c) all Intellectual property rights related to any of the foregoing. 3.3 Notwithstanding anything to the contrary, Company, shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to W use such information and data to improve and enhance the Services and tar other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de -identified form In connection with its business. No rights or licenses are granted except as expressly set forth herein. 4. PAYMENT OF FEES 4.1 Customer will pay Company the then applicable tees described in the Order Form for the Services antl Implementation Services in accordance with the terms therein (the "Fees"). If Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional tees (par the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional tees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to Institute new charges and Fees at the end of the Initial Service Term or then -current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department. 4.2 Company may choose to bill through an invoice, in which case. full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge t 1 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of coilWk,n and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other their U.S. taxes based on Company's net income. 5. TERM AND TERMINATION 5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of one year (collectively, the "Tenn"), unless either parry requests termination at least thirty (30) days prior to the antl of the then -current term. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to bind Customer's City Council to appropriate funds for any fiscal year beyond the first year of the Initial Term, and Company acknowledges and agrees that during the Initial Tenn, Customer may request termination at least thirty (30) days prior to the end of Customer's fiscal year should budgetary constraints require the total cancellation of the Services and assumption of Company's duties by Customer's own employees. 5.2 In addition to any other remedies It may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment), it the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. WARRANTY AND DISCLAIMER I& Govinvest InslgM1n w your 11n.' noal lmun GovinvestInc. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner as expressed in Exhibit C. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third -party providers, Or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance notice in writing Or by e-mail of any scheduled service disruption. However. Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED"AS IS' AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. 7. INDEMNITY Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over d3fense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not appy with respect to portions or components of the Service O not supplied by Company, ilmade in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (Iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or atter being Informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Service Is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at Its option and expense (a) replace or modify the Service to be non -infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) lt neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. 8. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES„ REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY; (A) FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL, IN EACH CASE, WHETHE9 OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. MISCELLANEOUS If any provision of this Agreement Is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and moddlcatlons must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or Govinvest Imigfin m y ,r Lnax,al Iau,e Govinvest Inc. employment is created as a result of this Agreement and Customer does not have any authority of any land to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing parry will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly, given when received, fi personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after a is sent, 0 sent for next day delivery by recognized ovemight delivery service; and upon receipt, a sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Caldomia without regard to its conflict of laws provisions. The parties shall work together In good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. Gov invest InvigFrs m yow Lnanoal Imun 7 Govinvest Inc. EXHIBIT A Service Level Terms The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and s:heduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third parry connections or utilities or other reasons beyond Company's control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 12 hours, Company will credit Customer 1 % of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 12 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company's blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement. Govin /est Govinvest Inc. EXHIBIT B Support Terms Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays ("Support Hours"). Customer may initiate a help desk ticket during Support Hours by calling 213-534-6898 or any time by emailing support@govinvest.com. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) busine3s day. GoviOvest Insighm to your financial future Govinvest Inc. EXHIBIT C Disclaimer of Analysis Company will provide the software with financially sound projections and analysis, but does not yet guarantee compliance with actuarial standards for funding and accounting purposes including GASB 68, GASB 27 and GASB 45. AGovinvest Imlghts to You, Loan -1 hilum