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CONTRACT 5854 License AgreementCity of El Segundo, CA SaaS Licensing Agreement Attention: City of E-1 Segundo, CA Prepared by: Christian Dickson, Director October 10, 2019 Actuarial Services and Technology Licensoig Agreement Page 1 Agreement No. 5854 . A Govinvest 1"iqhl-y-fi*.Cialrww� City of El Segundo, CA Summary of Services and'Iniplernent4ktion Customer: City of Bl Segundo, CA 350,Main St, El Segundo, CA 90245 Agreement No. 5854 Services. Service Capacity: Use of the Standard Pension Module of the Total Liability Calctflat6r (the"Service(sy Initimil Term, One year from the Effective Date, Pension Module: $7,500 annual licensing fee. SERV ICE AGREEMENT This SaaS Set -vices Agreement ("Agreement") is entered into on this t day of x.01 (the "Effective Date") between GovInvest, Inc. ("Company"), and the Customer listed above ("Customer"), This Agreement includes and incorporates the above Summary of Services and Implementation, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limilatiuns and use limitations. There shall be no force or effect to any different or additional terms or any purchase order, confirmation or similar form, even if signed by the parties'before,or after the date hereof, GovInvest Inc. City of El Segundo, CA BY: By: Name. Name: Title: Title: Date: Date: ATTE STA' OT's for , �144 "Y City cllot'k i L Y Ut g - TERMS AND CONDITIONS ",if - 2 se•ndo 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 identify an administrative user name and password for Customea's account. Copipany reserves the right to refuse registration or cancel passwords it deerns inappropriate. 1.2. Subject to the teams hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B. Actuarial Services and Technology Licensing Agreernept Page 2 west Govk Agreement No. 5854 City of El Segundo, CA 2. RESTRICTIONS AND RP.SPONSIBILITIES 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 or used to provide the Services ("Software*'); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly perm ' itted in writing 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 party; or remove any proprietary notices or labels. 2.2 Further, Customer shall not export or re-export, either directly or indirectly, the Software or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Custorner shall not permit any third parties to access or use the Services in violation of any United States export embargo, prohibition, or restriction. 2.3 Custorner hereby agrees to indeninilyand hold harmless Cornpany against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorney's fees) in connection with any claim or action that arises from Customer's failure to comply with the terms of this Agreement 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. Company reserves the right, in its sole discretion, to prohibit or suspend Customer's use of the Services at any time M - Company believes such use to be in violation of this Agreement or otherwise harmful to the Service. 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, moderns, 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. 1 CONFIDENTIALITY: PROPRIETARY RIGHTS 3,1 One party (tile "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. Propriet . ary Information of Customer includes non- public data ("Customer Data") provided by Customer to Company to enable the provision of the Services. The Receiving, Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information, The Disclosing Parry agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can docurnem (a) is or becomes generally available to the public, without any action by, or involvement of, the Receiving Party 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 party, or (d) was: independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The Receiving Party acknowledges that in the event of a breach of Section 3.1 by the Receiving Party, substantial injury could result to the Disclosing Actuarial Services and Technology Licensing Agreement Page 3 gL Gov! r­lv.,.,,L Agreement No. 5854 City of El Segundo, CA Parry and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in, any act which violates Section 3. 1, the Disclosing Party will be entitled; in addition to all other remedies which may be available to it under law, to seek injunctive relief (hicluding, without limitation, temporary restraining orders, or ptehininary or perniancrit injunctions) and specific enforcement of the terms of Section 3.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief, 3.2 Company shall own and retain all rights, title and intorest,in and to: (i) the Services and Software, together with all improvements, enhancements, modifications, changes, translations, compilation, and derivative works thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (iii) any analytics generated through Customer's use of the Services, including but not limited to, any data, materials, information, and reports ("Analyties") and (iv) all intellectual property rights related to any of the foregoing, Company hereby grants Customer a non-exclusive, non -transferable and non- sublicensable license to access and use the Analytics. 3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Set -vices and related systems and technologies (including, without limitation, information concerning Customer Data and data derived the:,-efrom), and Company will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, (ii) disclose such data solely in aggregate or other de -identified form in connection with its business, and (iii) disclose, share, license, or resell Analytics to third parties for consideration. 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 fees described in the Summary of Services and Implementation in accordance with the terms therein (the "Fees"). If Customer's u - se of the Services exceeds the Service Capacity set forth in the Summary of Services and Implementation or otherwise requires the payment of additional fees (per er the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees 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 Terni or then current RenewalTerm, 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 all 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 of 5% per month oil any outstanding, balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income -.- 4.3 Services may be provided outside tile scope encompassed within tile "Summary of Services and Implementation". Said services may be subject to additional fees, which arc set at $600 hour for executive -level work, $425/hour for FSA -level work, $300/bOUr for ASA -level work, $200/hour for analyst work, and reasonable travel expenses. Said services that are subject to additional fees will not be performed without explicit advance consent from Customer. Actuarial Services and Technology Licensing Agreement Page 4 Govinvest Agreement No. 5854 City of El Segundo, CA 4.4 Company may incur business license fees that are mandated by Customer. Customer agrees to reimburse Company for said fees. 4.5 Company may incur costs for adding Customer as additional insured to Company's existing insurance policies in order to comply with Customer's insurance requirements. Customer agrees to reimburse Company for said costs. 4.6 Company may incur costs for providing a waiver of subrogation in relation to Company's existing insurance policies in order to comply with Customer's insurance requirements. Customer agrees to reimburse Company for said costs. 5. TERM AND TERMINATION 5.1 Subject to earlier termination as provided below, the Initial Term of this Agreement shall be for a period specified in the Summary of Services and Implementation (the "Initial Term"). Upon the expiration of the Initial Term, this agreement shall automatically renew for -additional periods of the same duration as the Initial Term (each a "Renewal Term"). The Initial Term and the Renewal Term are collectively`referred to herein as the "Term." 5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days written notice (or without notice in the case of nonpayment), if 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. b. WARRANTY AND DISCLAIMER 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 ricitice 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, THE ANALYTICS, AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRAN'T'IES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT. 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 defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company,: (ii) made 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, after being Actuarial Services and Technology Licensing Agreement Govi nves-t Insight, to your 11—dal (inure Page 5 Agreement No. 5854 City of El Segundo, CA C, 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) if 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 ERROR OR 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; (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITKALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT [N,rHF- 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHLR OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 not transfer or assign any of its rights and obligations under this Agreement without Customer's prior written 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 all waivers and modifications in this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover cost's and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall 'be governed. by the laws of the State of California without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one Actuarial Services and7rechriology Licensing Agreemeni Page 6 GovinvesL Im ighistopur6mmilfulore Agreement No. 5854 City of EI Segundo, CA mutually agreed upon press release withui 90 days, of the JEffective. Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. Actuarial Services and Technology Licensing Agreement Page 7 .�L GovInveSt Insightao your lumnciol luwre City of Ef Segundo, CA EXHIBIT A Service Level Ternis Agreement No. 5854 The Services shall be available 99% of the time, measured monthly,, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, anyAowntime resulting from outages of third party connections or utilities or other reasons beyond Company's control will also be excluded from any such calculation. C4stomer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall lie 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. A �•eement Licensin .. .., .,. i, Actuarial Services and Technology g g GOVI rivest Insighn to year fmancinl lururo Page 8 City of El Segundo, CA EXHIBIT B Support Terms Agreement No. 5854 Company will provide Technical Su'pport.to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 a.m. through 5:00 p.m, Pacific Standard Time, with the exclusion of Federal Holidays ("Support Hours"). Customer may initiate a help desk ticket during Support Hours by calling 310-371-7106 or any time by emailing, sLipporl@govinvest.com. Company will use commercially reasonable efforts to respond to all help desk tickets within one (1) business day. Actuarial Services and Technology Licensing Agreement 4Ak Govi nvest Wt-9histoyour finanool(utwo Page 9 City of El Segundo, CA EXHIBIT C Disclaimer ofSoftwareAnalysis Agreement No. 5854 Company will use census data, plan provisions, and actuarial assumptions provided by Customer and/or Customer's actuary to develop the software f6r Customer. Company will rely on this information without audit. Company does not set actuarial assumptions. Company will provide software with financially sound projections and analysis, -but does not guarantee compliance with actuarial standards for funding and accounting purposes under Government Accounting Standards Board Or Generally Accepted! Accounting Principlcs. ; The software will not be prepared in accordance with the actuarial standards of practice oi, . actuarial compliance guidelines as promulgated by the -American Academy of Actuaries nor will outputs constitute a Statement of Actuarial Opinion. Software results are not suitable for financial reporting purposes. While the software is tested against actuarial valuation results, the software results will not match, nor are intended to match actuarial valuation results. Actuarial Services and Technology Licensing Agree new Page 10 GovInvest Insights toyaw linanoal rutute Agreement No. 5854 Exhibit D AI i 'ITIO' A.L Tffi?&S FOR GOVINVEST AGREEMFNT: 1. INSUIbliNCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective,, GovInvest will procure and maintain the following types of insurance with coveragc limits, complying, at a minimum, with the limits set forth below: Type of Insurance Limits - Commercial general liability: $2,000,000 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 B. Commercial general liability insurance will meet or exceed the requirements of ISO -CGL Form No. CG 00 01 1185 or 88. The amount of insurance set forth above will be a combined 5ingle Iiinit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name City, its officials, and employees as ".additional insureds" under said insurance coverage and to state that such insurance will be deemed "primaty" such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an "oceurrcnce," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City. C. 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," GovInvest 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 Govinvest for all claims made by City arising out of any errors or omissions of GovInvest, or its officers, employee's or agents during the time'this Agreement was in effect. U. Technology Errors and Omissions Liability Insurance will cover all third party Agreement No. 5854 claims arising out of any act, error, omission or breach of contract provision of GovInvest's technology services, including loss arising from destruction of data, a, in the amount set forth above per occurrence. E. Cyber Liability Insurance to cover all third party loss from hacking attack or virus emanating from or passed through Govinvest's computer system or a cloud provider's system -into City's systems in the amount set forth above per OCCUITC11ce. F. Privacy Liability Insurance to cover all security breach and notification cost resulting in actual or suspected loss of personal information or any other records considered confidential for the City's data located on service providers servers of on a cloud computing provider's system in the,-:unount set forth above per occurrence. G. Each such liability policy shall name the City of El Segundo as an Additional Insured for such liability of the City, and each such first -party shall name the City as a Loss Payee. GovInvest will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the ins * urance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by Pity from time to time. Insurance must be placed with insurers with a current A.M. Best Compahy Rating equivalent to at least a Rating of"A:Vll.'- H. Should GovInvest. for any reason, fail to obtain and maintain the insurance required by this Agreement, City may obtain such coverage at GovInvest's expense and deduct the cost of such insurance from payments due to GovInvest under this Agreement or terminate.