CONTRACT 5802 License AgreementAgreement No. 5802
LUCD
Elucd Proposal to EI Segundo Police Department
Elucd's continuous sentiment intelligence system allows public safety leaders to
measure, track, and understand critical aspects of community perception. This enables
better, data -driven decision making. Elucd's police department partners have used
Elucd tools to unlock the following benefits:
• Better framing of priorities and progress to leaders and the public;
• Guiding resource allocation across the agency towards what works;
• Reacting proactively and communicating with the public about their top concerns,
instead of reacting to complaints;
• Addressing trust and safety with the same confidence as crime rates;
• Evolving community policing from information gathering to collaboration.
We provide two main, related products. The first is Elucd Blockwise, a unique public
opinion dataset, collected by Elucd technology, that quantifies multiple dimensions of
community sentiment about public safety (Trust in police and perception of Safety) at a
fine granularity of geography and time. These indexes are designed to serve as
performance management metrics, and enable benchmarking both internally and
externally.
The second is the Elucd Public Safety Platform, which is a web -based data analysis
platform used to visualize the Sentiment Indexes alongside demographic and concern
data, enabling reports, alerts, and actionable insights around sentiment trends. The
elements included for EI Segundo Police Department are shown below in Table 1.
Once a contract is agreed upon, data collection will begin immediately and continuously.
EI Segundo Police Department will be issued an annual license to both the unique data
stream and a custom platform, which provides seamless and continuous updates and
upgrades as new features and enhancements are developed and released. Police
department officials will also receive regular updates on the community's top concerns
and specific comments submitted that week. The cost structure associated with a five
year (1 year + 4 option years) is detailed in Table 2 below.
Agreement No. 5802
_LUCD
Appendix
Table 1: Included Elucd Features
Sentiment Scores: Citywide X
Sentiment Scores: Neighborhood -level X
Sentiment Scores: Demographic -level X
Custom Web -based Analysis Platform X
Custom Tech Integration X
Mutually -agreed Customizations X
Issue Reports: Citywide X
Issue Reports: Neighborhood -level X
Network: Benchmark to peers X
Network: Peer learning X
Event -Based Alerts + Warnings X
Public -facing Interfaces Upon request
Table 2: Five Year Contract Cost Structure
Elucd Public Safety Platform $11,250/yr
Elucd Public Safety Sentiment Index Data $37,500/yr
60% Discount Applied -$29, 250/yr
Total Cost $19,500/year
Agreement No. 5802
ELUCD LICENSE AND SERVICES ORDER FORM
This Elucd License and Services Order Form ("Order Form") is entered into as of the date of last signature
below ("Effective Date") and is between the Customer listed below and Elucd, Inc., a Delaware corporation
located at 81 Prospect St., Brooklyn, NY 11201 ("Elucd").
Customer: City of EI Segundo and its Customer Contact: Julissa Chavez
Police Department Phone: 310 524 2278
Email: jchavez@eisegundo.org
Mailing Address: 348 Main Street Elucd Contact: Michael Simon
EI Segundo, CA 90245 Phone: 212-756-3945
Email: michael@elucd.com
Services: (i) the Elucd proprietary, cloud -based software -as -a -services data visualization and analytics
platform (the "Platform") platform and (ii) aggregated and anonymized population sentiment data made
available through the Platform, via PDF, or otherwise (the "Sentiment Index Data").
Professional Services: the technical and related services that Elucd makes available, as may be required
to configure the Services for use by Customer and Authorized Users (as defined below) or to customize
the Services for Customer's approved use of the Services.
Licenses & Fees:
Service Term:
Elucd Blockwise
5 (five) years from date of service activation,
City Tier 10k+ pop.: $11,250/yr
October 1, 2019.
Elucd Public Safety Sentiment Index Data
City Tier 10k+ pop.: $37,500/yr
Invoice Schedule:
Annually, for the portion of the service term
Discounts Applied:
reflecting the fiscal year forward (2019-2024.)
60% Discount:-$29,250/yr
Total Cost:
TOTAL:
$19,500/yr
The Elucd License and Services Agreement ("Agreement") between the parties consists of this Order Form
and the attached Terms and Conditions, including all Exhibits thereto ("Terms"), if any. For additional
products, licenses and services, the parties may complete and execute additional Order Forms in
substantially the form of this cover page; when executed by both parties, such Order Forms will be subject
to the Terms and become part of this Agreement. In consideration of the mutual promises contained herein
and the mutual benefits to be derived therefrom, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to the terms of the Agreement, effective as of the Order Date.
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TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms that are used but not defined in this Agreement or in the Order
Form have the following meanings:
1.1 "Affiliate" means any entity that, before or after the Effective Date, controls, is controlled by, or
under common control with, a party, where "control' means to own, or the ownership of, the power to
direct or manage the affairs of the party or entity through voting power or by contract, but only for as long
as such control or common control exists.
1.2 "Authorized User" means each individual, including any employee or contractor of Customer, its
Affiliates and third parties with which Customer transacts business, who (a) has been authorized by
Customer to access and use the Services and (b) has been assigned a unique username and password for
accessing and using the Service.
1.3 "Customer Content" means any information, data or material that Customer or Authorized Users
enter into, or upload to, the Platform or create or generate using the Services.
1.4 "Documentation" means the instruction manuals, specifications and other documents that Elucd
makes available to Customer and Authorized Users and that detail the functionality, operation and use of
the Services.
1.5 "Intellectual Property Rights" or "IP Rights" means (a) rights in works of authorship, including
copyrights, moral rights, mask works and copyright applications and registrations, (b) trademark and trade
name rights and similar rights, (c) trade secret rights and (d) patent and industrial property rights and rights
in patent applications, renewals, extensions, combinations, divisions and reissues.
1.6 "Raw Survey Data" means individual survey responses or other associated information used by
Elucd in creating the Sentinment Index Data.
2. LICENSE GRANTS; DELIVERY.
2.1 License Grants by Elucd. Subject to the terms and conditions of this Agreement, Elucd hereby
grants Customer a nonexclusive, worldwide license:
(a) during the Term, to (i) access and use the Platform by no more than the number of
Authorized Users for which fees have been paid and (ii) to reproduce and prepare excerpts and
translations of the Documentation and distribute the Documentation to Authorized Users; and
(b) perpetually, to reproduce, discplay, distribute, prepare derivative works of, publicly display,
and publicly perform the Sentiment Index Data delivered to Customer during the Term.
Customer may only exercise the rights in subsections (a) and (b) for non-commercial purposes, except as
set forth in Section 13.
2.2 Documentation. All copies of the Documentation authorized under this Agreement shall include
the same copyright and proprietary notices that appear on the versions of the Documentation that Elucd
makes available to Customer. Documentation available as the Effective Data is available from within the
Services. Documentation includes any amendments or supplements made available by Elucd to Customer
during the Term and is hereby incorporated into this Agreement.
2.3 License Limitations. Except as otherwise expressly set forth in this Agreement, Customer may not:
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(a) sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the
Services or make them available to any third party, other than to Authorized Users;
(b) modify or prepare derivative works of the Services other than the Sentiment Index Data;
(c) create Internet "links" to the Services or "frame" or "mirror" the Services;
(d) except as permitted by applicable law, reverse engineer, decompile, disassemble or
otherwise attempt to access or derive the source code of, or trade secrets embodied in, the Services
or Service Content;
(e) use the Services to transmit spam, unsolicited messages or malicious code in violation of
applicable laws;
(f) upload malicious code to, or store malicious code in, the Services;
(g) knowingly use the Services to violate, or encourage the violation of, any applicable law or
to violate the legal rights of third parties; or
f) knowingly interfere with, disrupt, disable or overburden the Services.
If Elucd becomes aware of any improper use of the Services by Customer, Elucd shall promptly notify
Customer and Customer shall use reasonable efforts promptly remedy the improper use.
2.4 Authorized Users. Subject to the following sentence, Elucd shall assign each Authorized User a
unique set of log -in credentials (e.g. username and password) that an Authorized User may not knowingly
share with any other person without Elucd's consent. When an Authorized User no longer requires access
to the Services, Elucd or Customer will de -activate that Authorized User's access to the Services and
Customer may assign that former Authorized User's access right to the Services to another Authorized User.
Customer shall be solely responsible for log -in credentials and for use of the Services under such credentials.
2.5 Additional Licenses. Customer may increase the number of Authorized Users by ordering new
licenses from Elucd and signing a new or supplemental Order Form. Additional licenses for Authorized
Users will be coterminous with the term of the licenses under the initial Order Form and the fees for the
additional licenses will be prorated accordingly.
2.6 Suspension. (a) Elucd may suspend Customer's access to the Services if Elucd needs to carry out
emergency maintenance or Customer's use of the Services presents an immediate and genuine threat to
the security of the Services or the performance of the Services for other Elucd customers. (b) Elucd may
suspend an Authorized User's access to the Services if the Authorized User is using the Services in violation
of Section 2.3 and Elucd has reason to believe that such violation threatens the Services or Elucd with
substantial risk or harm. (c) Elucd shall notify Customer by email or telephone in advance of any suspension
under this Section 2.6, unless advance notice is not feasible given the nature of the issue warranting
suspension. Elucd shall resume the Services as soon as possible once the threat necessitating suspension
has been sufficiently remedied for the Services to resume.
2.7 License Grant by Customer. Subject to the terms and conditions of this Agreement and during the
Term, Customer hereby grants Elucd the nonexclusive and limited right to capture, reproduce and store
Customer Content, if and as authorized, for the sole purpose of making the Services available to Authorized
Users.
3. CUSTOMER EQUIPMENT. 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 related equipment or services (collectively, "Equipment"). Customer shall be responsible for
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maintaining the security of the Equipment and for all uses of Customer account or the Equipment with or
without Customer's knowledge or consent.
4. SUPPORT SERVICES. For as long as Customer has a right to access the Services, Elucd shall provide
Customer with remote technical support via telephone and electronic mail (such technical support, the
"Support Services"). Elucd shall provide the Support Services during the hours of 9 AM through 6 PM,
Eastern time, with exclusion of federal holidays (the "Support Hours"). Customer may initiate the Support
Services by calling (212) 756-3945 during Support Hours or any time by emailing supportpelucd.com. Elucd
shall use commercially reasonable efforts to respond to all requests for Support Services within one (1)
busiess day. Elucd may modify the Support Services with advance notice to Customer as long as the
modifications do not substantively diminish the nature, scope or timeliness of the Support Services.
5. FEES AND PAYMENT.
5.1 Fees. Elucd's fees for the Services are set forth in the Order Form. The fees include fees for Support
Services and Professional Services. All fees shall be stated and paid in United States dollars and are non-
refundable.
5.2 Expenses. Customer shall reimburse Elucd for reasonable travel -related expenses, without mark-
up, that are (a) necessarily incurred in performing Professional Services, (b) approved in advance by
Customer and (c) comply with Customer's contractor travel and expense policy, which Customer shall
furnish Elucd with in each SOW. Unless otherwise specified in a SOW, Elucd shall invoice Customer for
reimbursable expenses monthly and for Professional Services based on the fees and payment schedule in
the SOW. Each invoice for reimbursable expenses must include sufficient supporting documentation to
verify the fact and amount of the expenses incurred.
5.3 Invoices. Elucd shall provide Customer with an invoice for the Services based on the prices set forth
on, in accordance with the timeframes set forth in, the applicable Order Form and taxes as set forth in
Section 5.4. Customer shall pay Elucd within 30 days of Customer's receipt of an invoice. If Customer
reasonably disputes any invoiced amounts prior to payment, it will timely pay the undisputed portion of
the invoice and notify Elucd in writing of the disputed amount and the reason it contests the disputed
amount. The parties will then cooperate to promptly resolve the invoice dispute. If the parties agree that
an invoiced amount is in error, Elucd will promptly submit a revised invoice showing amounts paid against
the original invoice and the revised amount due. If the parties agree that the invoiced amount is not in
error, Customer shall promptly pay the disputed portion of the invoice. Unless otherwise stated in an Order
Form, all payments will be made in U.S. Dollars
5.4 Taxes. Unless otherwise stated in an Order Form, Elucd shall invoice Customer for, and Customer
shall pay, taxes that are imposed by a taxing authority on the Services and other purchases, and that are
required by law to be collected by Elucd and paid by Customer, unless Customer provides Elucd with a valid
and applicable tax exemption certificate. Customer is not liable for taxes related to Elucd's income,
property and/or employees.
6. CONFIDENTIALITY
6.1 Definition. "Confidential Information" means any nonpublic information that is disclosed by a
party and/or its Affiliates (the "Disclosing Party") to the other party and/or its Affiliates ("Recipient") under
this Agreement and that (a) is designated as confidential prior to, or at the time of, disclosure or (b) should
reasonably be understood to be confidential given its nature or the circumstances of its disclosure. Without
limiting the foregoing, and for purposes of clarity, the Raw Survey Data is Confidential Information of Elucd.
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6.2 Confidentiality Obligations. Recipient shall treat the Disclosing Party's Confidential Information
with reasonable care, considering the nature of the Confidential Information. Recipient shall (a) maintain
the Disclosing Party's Confidential Information in strict confidence, (b) not use the Disclosing Party's
Confidential Information for any purpose other than as required to perform the Services, (c) not disclose
the Disclosing Party's Confidential Information to any third parties without the Disclosing Party's consent
and (d) not reverse engineer technical information that is Confidential Information or otherwise attempt to
derive its composition.
6.3 Exceptions. The obligations in Section 6.2 do not, or no longer, apply to information that (a) is or
becomes publicly known or available other than through a breach of confidentiality owed to the Disclosing
Party, (b) was rightfully in the possession of Recipient prior to receipt from the Disclosing Party as shown
by documentary evidence, (c) is acquired by Recipient on a non -confidential basis from a third party with
the right to disclose the information or (d) is independently developed by Recipient without use of the
Disclosing Party's Confidential Information.
6.4 Authorized Disclosures. Each party, as a Disclosing Party, hereby authorizes Recipient to disclose
the Disclosing Party's Confidential Information to Recipient's directors, officers, employees and consultants
(each, a "Representative") on the conditions that (a) each Representative has a genuine need to know the
specific Confidential Information disclosed for the Services to be performed, (b) each Representative is
bound by legal or contractual obligations of confidentiality that include use and nondisclosure restrictions
at least as protective of the Disclosing Party's Confidential Information as those set forth in this Agreement
and (c) the Representative only uses the disclosed Confidential Information as necessary for the to perform
the Services and for no other purpose. Recipient shall demonstrate its compliance with these conditions
upon request. Recipient shall be responsible and liable for any breach of this Agreement by its
Representatives, its Affiliates and their Representatives, which breach shall be considered a breach by
Recipient.
6.5 Compelled Disclosures. The provisions of Section 6.2 will not restrict Recipient from disclosing
Confidential Information to the extent required by any law or compelled by a court or agency of competent
jurisdiction on the conditions that (a) to the extent permissible by law, Recipient gives the Disclosing Party
reasonable advance notice of the required disclosure in order to enable the Disclosing Party to prevent or
limit disclosure, (b) Recipient only discloses that portion of the Confidential Information that, in the opinion
of its legal counsel, is required to be disclosed and (c) Recipient exercises all reasonable efforts to obtain
assurance that confidential treatment will be accorded to the disclosed Confidential Information.
6.6 Injunctive Relief. The disclosure or use of Confidential Information in breach of this Section 6 may
cause irreparable harm, for which monetary damages may be inadequate or difficult to ascertain.
Therefore, in addition to its other rights and remedies, each party may seek and obtain injunctive relief for
the unauthorized use or disclosure of its Confidential Information under this Agreement.
6.7 Limited Data Usage. During the Term, Elucd may collect, use and aggregate data about Customer's
use of the Services solely for the purposes of providing the Services to Customer and improving the Services
generally, on the condition that such use or aggregation is performed solely by Elucd and Customer's usage
data is anonymized priorto such use or aggregation in such a manner that it cannot be re-identified or used
to derive the identity of Customer or its Affiliates. Without limiting the generality of the foregoing,
anonymized and aggregated data about Customer's use of the Services may not contain (a) Customer
Confidential Information, (b) any data that identifies or can be used to identify an individual or (c) any data
that identifies or can be used to identify Customer or its Affiliates, including, without limitation, based on
their activities or behaviors, including membership in any group or industry.
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7. OWNERSHIP RIGHTS.
7.1 Ownership by Elucd. As between the parties, Elucd retains all right, title and interest, including
related Intellectual Property Rights, in and to the Services, Raw Survey Data, Documentation and Elucd
Confidential Information. Except for the rights expressly granted by Elucd in this Agreement, Customer
does not acquire any right, title or interest in or to the Services, Service Content, Documentation and Elucd
Confidential Information by implication, estoppel or otherwise. All rights not expressly granted to Customer
are reserved by Elucd and its licensors.
7.2 Ownership by Customer. As between the parties, Customer owns all right, title and interest,
including related Intellectual Property Rights, in and to Customer Data and Customer Confidential
Information. Except for the rights expressly granted by Customer in this Agreement, Elucd does not acquire
any right, title or interest in or to Customer Data and Customer Confidential Information by implication,
estoppel or otherwise. All rights not expressly granted to Elucd are reserved by Customer and its licensors.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will commence on the Effective Date and will continue for the period stated
on the first Order Form (the "Initial Term"), unless terminated earlier under this Section 8. Customer may
renew the Agreement for successive one-year terms (each, a "Renewal Term") by entering into a new Order
Form with Elucd. Elucd will notify Customer in writing of the end of the Initial Term and each Renewal Term
at least 90 days in advance. If Customer notifies Elucd that it wishes to renew the Agreement, this
Agreement will renew for successive one-year terms (the Initial Term and any Renewal Term, the "Term").
Customer may execute supplemental Order Forms during the Term to add new services or increase the
number of Authorized Users, and the supplemental Order Forms will be coterminous with the Order Form
they supplement, unless the parties otherwise agree.
8.2 Termination. Either party may terminate this Agreement upon notice to the other party (a) if the
other party breaches a material provision of this Agreement and fails to remedy the breach within 30 days
after receipt of a notice specifying the breach or (b) if the other party breaches a material provision of this
Agreement and, given the nature of the breach, the breach cannot be remedied within 30 days.
8.3 Insolvency. Each party may terminate this Agreement immediately upon delivery of a written
notice to the other party if the other party (a) makes a general assignment for the benefit of its creditors,
(b) commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's
relief law, which proceedings are not dismissed within 60 days or (c) is liquidated or dissolved.
8.4 No Election of Remedies. A party's election to terminate the Agreement or any Order Form shall
not be deemed an election of remedies. All remedies available to a party at law or in equity shall survive
the termination of this Agreement or any SOW.
8.5 Effect of Termination.
(a) Customer Termination. If this Agreement or any Order Form is terminated by Customer
under Section 8.2 (Termination) or by Elucd under Section 10.3 (Mitigation), Elucd shall, within 30
days of the termination, refund to Customer an amount calculated by (i) multiplying the
Subscription Fees for the then -current Initial Subscription Term, Renewal Subscription Term or
billing period (if an Initial Subscription Term or Renewal Subscription Term is multi-year and
Subscription Fees are billed on an annual or other basis) (ii) times the number of days remaining in
the applicable Initial Subscription Term, Renewal Subscription Term or billing period as of the Order
Form or Agreement termination date (iii) divided by the number of days in the applicable Initial
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Subscription Term, Renewal Subscription Term or billing period, assuming 365 days in a calendar
year.
(b) Termination by Elucd. If Elucd terminates this Agreement and/or an Order Form or SOW
under Section 8.2 (Termination for Cause), Elucd shall invoice Customer (i) for any unpaid
Subscription Fees for the remainder of the applicable Initial Subscription Term or Renewal
Subscription Term, under the terminated Order Form and (ii) for any Professional Services that were
performed under any SOW up to and including the expiration or termination date of the
Agreement, that were not yet invoiced and that were not unreasonably rejected by Customer.
(c) Expiration or Termination. Upon the expiration or termination of this Agreement for any
reason and subject to Section 8.6, all rights and licenses granted to either party under this
Agreement will immediately terminate. Subject to Section 8.6, within 30 days of the expiration or
termination of the Agreement, each party and its Affiliates shall securely destroy all Confidential
Information disclosed to them by the other party and its Affiliates under this Agreement, except for
Confidential Information of the other party that is stored in electronic systems, that cannot be
readily identified or destroyed and that will be securely destroyed over time in accordance with a
party's records retention policy.
8.6 Data Porting and Deletion. Elucd will retain Customer Content stored in the Services for at least
45 days after the expiration or termination of this Agreement. During this period, upon Customer's request,
Elucd will make available to Customer a data file, in a mutually agreed format, of Customer Content stored
in the Services. Within 60 days after the expiration or termination of this Agreement, Elucd shall
permanently delete Customer Content from the Services.
8.7 Survival. Upon the expiration or termination of this Agreement, Section 1 (Definitions), , Section 7
(Confidentiality), Section 7 (Ownership Rights), Section 8.5 (Effect of Termination), Section 8.7 (Survival),
Section 10 (Indemnification), Section 11 (Limitation of Liability) and Section 14 (General Provisions) shall
survive the termination of this Agreement indefinitely. Section 8.6 (Data Porting and Deletion) shall survive
the termination of this Agreement by its terms.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 General. Each party represents and warrants that (a) it has the right to enter into this Agreement
and (b) the individual signing this Agreement on its behalf is authorized to sign this Agreement and legally
bind the party. Customer further warrants and covenants that it will use the Services only in accordance
with all applicable laws and regulations.
9.2 Service Warranties. Elucd warrants and covenants that, during the Term, Elucd shall not materially
decrease the functionality of the Services. Upon any breach of the foregoing warranty, Elucd shall modify
the Services so that its functionality equals or exceeds its functionality as of the Effective Date. If Elucd is
unable to remedy its breach of the foregoing warranty within 30 days, then Customer may, as its sole
remedy and Elucd's sole and exclusive liability for such breach, terminate this Agreement and obtain a
refund of any unused fees.
9.3 Support Services. Elucd warrants and covenants that it shall perform the Support Services with
professional skill, diligence and care. For any breach of this warranty, Elucd shall, as Customer's sole and
exclusive remedy and Elucd's sole liability for such breach, re -perform the Support Services.
9.4 Professional Services Warranty. Elucd warrants and covenants that it shall provide the Professional
Services under an SOW with professional skill, diligence and care. For any breach of the above warranty,
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Elucd shall re -perform the Professional Services. If the Professional Services do not meet the standards of
the warranty after two attempts, Customer may, as its sole and exclusive remedy and Elucd's sole liability
for such failure, terminate the applicable SOW, in whole or part, and receive a refund of any unused fees.
9.5 Intellectual Property Rights Warranty. Elucd represents and warrants that the Services do not
infringe or misappropriate the IP Rights of a third party. As Customer's sole and exclusive remedy for any
breach of the warranty in this Section 9.5, Elucd shall defend and indemnify Customer in accordance with
Section 10.
9.6 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, THE SERVICES, RAW SURVEY
DATA, DOCUMENTATION, AND ELUCD CONFIDENTIAL INFORMATION ARE PROVIDED "AS IS" AND ELUCD
HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ELUCD
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON -INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE, OR TRADE PRACTICE. ELUCD MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, RAW
SURVEY DATA, DOCUMENTATION, OR ELUCD CONFIDENTIAL INFORMATION, OR ANY PRODUCTS OR
RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY
SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE,
OR ERROR FREE.
10. INDEMNIFICATION.
10.1 Indemnity Obligations. Elucd shall defend Customer, its Affiliates and their respective directors,
officers, employees and Authorized Users (each, a "Customer Party") against, or settle, any third party
demand, suit or action (each an "Action") to the extent that the Action arises out of, or relates to a claim
that the Services violates the Intellectual Property Rights or privacy rights of any third party (such claim, an
"Infringement Action"). Elucd shall also pay any damages and expenses, including attorneys' fees and costs,
that are finally awarded against any Customer Party in any Action or that are agreed -to in a court -approved
settlement of any Action.
10.2 Limitations. The obligations under Section 10.1 do not applyto Elucd tothe extent an Infringement
Action arises out of or results from (a) use of the Services in combination with any hardware or software
not specified, enabled or authorized by Elucd, (b) an alteration or modification of the Services not provided
or authorized by Elucd or (c) use of the Services in a manner that is inconsistent with this Agreement or the
Documentation.
10.3 Mitigation. If the Services, Service Content or a Deliverable becomes, or in Elucd's opinion is likely
to become, the subject of an Infringement Action, Elucd may, at its discretion and at no cost to Customer
(a) obtain for Customer the right to continue using the Services, Service Content or Deliverable under this
Agreement; (b) modify or replace the Services, Service Content or Deliverables without materially
decreasing their functionality so that they no longer violate any third party's IP Rights or privacy rights or
(c) if Elucd reasonably determines that neither (a) nor (b) is commercially practicable, terminate the licenses
granted under this Agreement and refund to Customer any unused fees for the unexpired portion of the
Term.
10.4 Indemnification by Customer. Customer shall defend Elucd, its Affiliates and their respective
directors and employees (each, a "Elucd Party"), against, or settle, any Action to the extent that the Action
arises out of, or relates to, a third party claim that (a) Customer Content infringes the copyright or trade
secret of the third party claimant or (b) Customer Content infringes the privacy rights of the third party
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claimant or violates applicable privacy or data protection laws. Customer shall also pay any damages and
expenses, including attorneys' fees and costs, that are finally awarded against any Elucd Party in any Action
or that are agreed -to in a court -approved settlement of any Action.
10.5 Conditions. As an express condition to a party's indemnity obligations in Section 10.1 and Section
10.4, respectively, the party seeking indemnification shall (a) provide the party from which indemnification
is sought with prompt written notice of the Action, (b) give the party from which indemnification is sought
sole control of the defense of the Action and (c) give the indemnifying party reasonable assistance in
defense of the Action. The foregoing does not preclude the party seeking indemnification from, in its sole
discretion, retaining its own counsel at its own expense to assist with the defense of the Action.
10.6 Settlement. The indemnifying party may not settle any Action without the indemnified party's prior
written consent, unless the settlement (a) requires only the payment of money for which the indemnified
party will be fully indemnified, (b) does not require the indemnified party to take any action, forebear from
taking any action orwaive any rights and (c) grants the indemnified party a legally binding and unconditional
release of the third party's claims against the indemnified party under the Action.
11. LIMITATION OF LIABILITY.
12.1. Consequential Damages. EXCEPT TO THE EXTENT ARISING OUT OF OR RELATED TO (A) A PARTY'S
GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD, (B) A PARTY'S BREACH OF SECTION 6
(CONFIDENTIALITY) OR (C) AMOUNTS PAYABLE UNDER A PARTY'S OBLIGATIONS UNDER SECTION 10
(INDEMNIFICATION), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Direct Damages. EXCEPT TO THE EXTENT ARISING OUT OF OR RELATED TO (A) A PARTY'S GROSS
NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD, (B) A PARTY'S BREACH OF SECTION 6
(CONFIDENTIALITY) OR (C) AMOUNTS PAYABLE UNDER A PARTY'S OBLIGATIONS UNDER SECTION 10
(INDEMNIFICATION), THE MAXIMUM LIABILITY OF EITHER PARTY FOR COSTS, LOSSES OR DAMAGES FROM
CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT
OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID AND PAYABLE BY
CUSTOMER TO ELUCD UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING
RISE TO SUCH LIABILITY.
NOTHING IN THIS SECTION WILL LIMIT CUSTOMER'S OBLIGATION TO PAY FEES PROPERLY DUE AND
PAYABLE UNDER THIS AGREEMENT.
12. FORCE MAJEURE.
12.1 Excused Performance. Any delay or failure of a party to perform its obligations or exercise its rights
under this Agreement shall not constitute a breach of this Agreement, if and to the extent the delay or
failure is caused by an event, including a natural disaster, act of terrorism, riot, insurrection, war,
extraordinary governmental action or a material labor strike (excluding a strike by the party's own
workforce), that (a) is beyond the reasonable control of the party, (b) not avoidable by advance planning
and reasonable diligence and (c) not caused by the party (each such event, a "Force Majeure Event"). A
party whose performance is affected by a Force Majeure Event (the "Affected Party") shall promptly notify
the other party of the Force Majeure Event, its effect on the party's performance and its expected duration.
12.2 Event Mitigation. The Affected Party shall use reasonable efforts to overcome the effects of the
Force Majeure Event, mitigate the other party's damages and continue to perform its obligations under this
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Agreement to the extent possible. If any failure or delay caused by a Force Majeure Event continues for 15
days or longer, the other party may terminate this Agreement, without cost or liability, upon notice to the
Affected Party and receive a refund of any pre -paid fees for any performance not yet delivered.
13. COOPERATIVE PURCHASING. Customer may bind third parties ("Cooperators") to the terms and
conditions of this Agreement in accordance with the process set forth in this Section 13. Before binding any
Cooperator, Customer shall identify the proposed Cooperator in writing to Elucd and obtain Elucd's written
consent to bind such Cooperator. If Elucd provides such written consent, Customer shall (a) present this
Agreement (including the Order Form populated with Cooperator's information and the pricing on which
the Services will be offered to such Cooperator), (b) obtain Cooperator's signature to this Agreement, and
(c) send the fully -executed Agreement to Elucd at the Elucd email address identified in the Order Form.
After this process is complete, Elucd shall counter -sign this Agreement and send the fully -executed copy to
Cooperator, at which point it will be binding between Elucd and Cooperator, and Cooperator will be deemed
the Customer for purposes of the Agreement between Elucd and such Cooperator.
14. GENERAL PROVISIONS.
14.1 Non -Exclusive Relationship. This Agreement does not create an exclusive relationship. Elucd
acknowledges that Customer may use, and reserves the right to continue to use, other vendors to provide
products or services that are similar to the products or services offered by Elucd. To the extent reasonably
requested by Customer, Elucd shall cooperate with other vendors of Customer as required for them to
perform their obligations to Customer.
14.2 Independent Contractors. No provision of this Agreement may be construed to create a
partnership, joint venture, agency or employment relationship between the parties. Neither party has the
power or right to bind the other party or to incur obligations on the other party's behalf without such other
party's prior written consent.
14.3 No Publicity. Neither party shall publicize this Agreement or use the other party's name, logo or
trademarks in any public statements or promotional materials without the advance, written consent of a
senior representative of the other party.
14.4 Assignment. Neither party may assign this Agreement without the other party's written consent,
except that Customer may assign this Agreement to an Affiliate upon notice to Elucd. Any attempted
assignment or delegation in violation of this Section will be void.
14.5 Delegation. Elucd may not subcontract any of its obligations under this Agreement without the
prior written consent of Customer. If Customer permits Elucd to subcontract, Elucd shall remain the primary
obligor under this Agreement and shall be responsible and liable for the performance of its subcontractors
and their compliance with Elucd's obligations under this Agreement.
14.6 Governing Law; Jurisdiction. This Agreement and any disputes arising out of the subject matter of
the Agreement, including any non -contractual claim, will be governed by the laws of the State of California
and the United States, without regard to their conflict of law provisions. Any action, including any non -
contractual claim, arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of
the state and federal courts located in California. Each party hereby consents to the exclusive jurisdiction
of such courts. Each party also hereby (a) waives any venue or inconvenient forum defense to any action
or proceeding filed and maintained in such courts and (b) disclaims its right to initiate any action or
proceeding arising out of or related to this Agreement in any other court orforum.
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14.7 Informal Dispute Resolution. Prior to initiating any legal action, the parties shall attempt to resolve
informally any dispute, including any non -contractual claim, arising out of, or related to, this Agreement
before initiating any legal action.
14.8 Attorneys' Fees. If any action is necessary to enforce the terms of this Agreement, the substantially
prevailing party will be entitled to reasonable attorneys' fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
14.9 Headings. The titles or headings of the sections in this Agreement have been inserted for the
convenience of the parties and will not be relied upon to construe or modify any terms or conditions of this
Agreement.
14.10 Interpretation. Even though one party prepared the initial draft of this Agreement, neither party
shall be deemed the drafter of this Agreement for the purposes of contract construction. Therefore, no
provision may be construed by a court in favor of one party on the ground that the provision was initially
drafted by the other party.
14.11 Waiver. The failure of either party to enforce obligations or exercise rights under this Agreement
will not be construed as a waiver of the party's right to enforce that obligation or exercise that right in the
future. No waiver under this Agreement is effective unless the waiver is in writing and signed by an
authorized representative of the party granting the waiver.
14.12 Severability. If a court determines that any provision of this Agreement or the application of the
provision to a condition or person is invalid or unenforceable, then the remainder of this Agreement and
the application of the provision to other conditions or persons, will remain valid and enforceable to the
fullest extent permitted by law.
14.13 Notice of Delay. If any event or occurrence delays or threatens to delay a party's timely
performance under this Agreement, then that party will promptly notify the other party of the delay and
reason for the delay.
14.14 Notices. Any required notice under this Agreement shall be in writing and sent to the party's
business address set forth on the Order Form. The notice shall be deemed given upon receipt if sent by
personal delivery or email or if sent by certified or registered U.S. Mail with return receipt requested or by
a major overnight commercial delivery service.
14.15 Amendment. No amendment or supplement to this Agreement will be effective unless it is in
writing and signed by both parties and it cites the provision of the Agreement that is amended or
supplemented.
14.16 Entire Agreement. This Agreement, its Exhibits, SOWs, Order Forms and any other documents
incorporated into this Agreement by reference constitute the entire agreement between the parties with
respect to the subject matter of the Agreement and supersede all prior or contemporaneous
understandings or agreements, both oral and written, between the parties about the subject matter of this
Agreement, including without limitation, any pre-existing confidentiality or nondisclosure agreement(s)
between them. If there is a conflict between any term or condition in the body of this Agreement (e.g.
Sections 1 through 14) and any term or condition in an Order Form, the term or condition in the body of
the Agreement prevails and governs.
14.17 Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an
original and together shall constitute one and the same agreement. Each counterpart may be delivered
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electronically or by email in .pdf format. This Agreement may also be signed electronically. By signing
electronically, each party hereby acknowledges that the electronic signatures appearing on this Agreement
shall validly bind each party and shall be treated, for purposes of validity, enforceability and admissibility,
the same as handwritten signatures.
14.18 Effectiveness. This Agreement is effective as of the Effective Date.
15. INSURANCE. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, Elucd will procure and maintain the following types of insurance with coverage
limits complying, at a minimum, with the limits set forth below:
Tvoe of Insurance
Limits
Commercial general liability:
$1,000,000
Professional Liability
$1,000,000
Technology Errors
$1,000,000
and Omissions Liability
Cyber Liability $1,000,000
Privacy Liability $1,000,000
Workers compensation Statutory requirement
A. Commercial general liability insurance will meet or exceed the requirements of ISO -CGL
Form No. CG 00 011185 or 88. The amount of insurance set forth above will be a combined
single limit per occurrence for bodily injury, personal injury, and property damage for the
policy coverage. Liability policies will be endorsed to name Customer, its officials, and
employees as "additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may be carried by
Customer will be excess thereto. Such insurance will be on an "occurrence," not a "claims
made," basis and will not be cancelable or subject to reduction except upon thirty (30) days
prior written notice to Customer.
B. Professional liability coverage will be on an "occurrence basis" if such coverage is available,
or on a "claims made" basis if not available. When coverage is provided on a "claims made
basis," Elucd will continue to renew the insurance for a period of three (3) years after this
Agreement expires or is terminated. Such insurance will have the same coverage and limits
as the policy that was in effect during the term of this Agreement and will cover Elucd for
all claims made by City arising out of any errors or omissions of Elucd, or its officers,
employees or agents during the time this Agreement was in effect.
C. Technology Errors and Omissions Liability Insurance will cover all third party claims arising
out of any act, error, omission or breach of contract provision of Elucd's technology
services, including loss arising from destruction of data, in the amount set forth above per
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D. Cyber Liability Insurance to cover all third party loss from hacking attack or virus emanating
from or passed through Bucd's computer system ora cloud provider's system into
Customer's systems in the amount set forth above per occurrence.
E. Privacy Liability Insurance bn cover all security breach and notification cost resulting in
actual or suspected loss of personal information or any other records considered
confidential for Customer's data located on service providers servers or on a cloud
computing provider's system in the amount set forth above per occurrence.
F. Each such liability policy shall name the City of El Segundo as an Additional Insured for such
liability of the [ity, and each such first -party shall name the City of B Segundo as a Loss
Payee. E|ucd will furnish to Customer duh authenticated Certificates of insurance
evidencing maintenance of the insurance required under this Agreement and such other
evidence of insurance or copies of policies as may be reasonably required by Customer
from time to time. Insurance must be placed with insurers with a current A.M. Best
Company Rating equivalent toatleast aRating of"A:V||."
G. Should Elucd,for any reason, fail to obtain and maintain the insurance required by this
Agreement, Customer may obtain such coverage atE|ucd's expense and deduct the cost of
such insurance from payments due to Elucd under this Agreement or terminate.
ELUCD
Signature:
Name: Michael 8Simon
Co -Founder &CEO
Date: 1U/18/2O18
CWSTOMER-CityofBSegundo
Name
Dote: �.O—na-%.~V%
A, t yte
Tracy Weaver, City Clerk
�
Approved as to Form:
L� -Pj<,
Mark D. Hensley)G ?Attorney
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