CONTRACT 6421 Professional Services AgreementAgreement No. 6421
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
INNOVATIVE INTERFACES INCORPORATED
This AGREEMENT is entered into this 1ST day of October 2022, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and Innovative
Interfaces Incorporated, a California corporation ("CONSULTANT"). The parties agree as
follows:
1. CONSIDERATION,
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B, As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed Two -Hundred Eighty -One Thousand, Two -Hundred Sixty Two Dollars
and Ninety Seven Cents ($281,262.97) for CONSULTANT's services. CITY may
modify this amount as set forth below. Unless otherwise specified by written
amendment to this Agreement, CITY will pay this sum as specified in the
attached Exhibit "A," which is incorporated by reference.
2. SCOPE OF SERVICES..
A. CONSULTANT will perform services listed in the attached exhibits which are
incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except
as herein otherwise expressly specified to be furnished by CITY, necessary or
proper to perform and complete the work and provide the professional services
required of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use
the appropriate generally accepted professional standards of practice existing at the time of
performance utilized by persons engaged in providing similar services. CITY will continuously
monitor CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and
CONSULTANT will have twenty (20) days after such notification to cure any shortcomings to
meet the technical specifications or scope of work in the applicable Statement of Work. Costs
associated with curing the deficiencies will be borne by CONSULTANT.
4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly
rates for each personnel category and reimbursable costs (all as set forth in Exhibit "A") the
City of El Segundo
Page 1
Agreement No. 6421
tasks performed, the percentage of the task completed during the billing period, the cumulative
percentage completed for each task, the total cost of that work during the preceding billing
month and a cumulative cash flow curve showing projected and actual expenditures versus time
to date.
5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will
cover only those costs incurred up to the conclusion of the current fiscal year.
6. ADDITIONAL WORK. N/A.
7. FAMILIARITY WITH WORK. By executing this Agreement, CONSULTANT agrees that it
has:
A. Carefully investigated and considered the scope of services to be
performed;
B. Carefully considered how the services should be performed; and
C. Understands the facilities, difficulties, and restrictions attending performance of
the services under this Agreement.
If services involve work upon any site, CONSULTANT agrees that CONSULTANT has or will
investigate the site and is or will be fully acquainted with the conditions there existing, before
commencing the services hereunder. Should CONSULTANT discover any latent or unknown
conditions that may materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk
until written instructions are received from CITY.
8. TERM. The term of this Agreement will be for five years from the Go -Live Date, unless
otherwise terminated pursuant to Section 15.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until;
CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement
supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved
in the order in which the Exhibits appear below:
City of El Segundo
Page 2
Agreement No. 6421
A. Exhibit A: Innovative Interfaces, Inc. — MPSA and Statement of Work
B, Exhibit B: Innovative Interfaces, Inc. — Subscription License Agreement
C. Exhibit C: Innovative Interfaces, Inc. — SaaS Subscription Agreement
11. CHANGES. All changes must be agreed to in writing, executed by CONSULTANT and
CITY. The cost or credit to CITY resulting from changes in the services will be determined in
accordance with written agreement between the parties.
12. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain
during the term of this Agreement, all necessary permits, licenses, and certificates that may be
required in connection with the performance of services under this Agreement.
14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
15. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
upon breach of this Agreement by CONSULTANT.
B. CONSULTANT may terminate this Agreement upon breach by CITY upon thirty
days' written notice.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT's own cost; CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by
CONSULTANT specifically for CITY will, at CITY's option, become CITY's
property, and CONSULTANT will receive just and equitable compensation for
any work satisfactorily completed up to the effective date of notice of termination,
not to exceed the total costs under Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
16. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement specifically for CITY
only are CITY's property. CONSULTANT may retain copies of said documents and materials as
City of El Segundo
Page 3
Agreement No. 6421
desired, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees
that use of CONSULTANT's completed work product, for purposes other than identified in this
Agreement, or use of incomplete work product, is at CITY's own risk.
17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under
this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic display
information to be published in newspapers or magazines, will be approved and distributed solely
by CITY, unless otherwise provided by written agreement between the parties.
18. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense costs for
CITY and all its officers, volunteers, employees and representatives from
and against any and all suits, actions, or claims, of any character whatever,
brought for, or on account of, any injuries or damages sustained by any
person or property resulting or arising from any negligent or willful
misconduct by CONSULTANT or any of CONSULTANT's officers, agents,
employees, or representatives, in the performance of this Agreement,
except for such loss or damage arising from CITY's sole or contributory
negligence or willful misconduct.
B. For purposes of this section "CITY" includes CITY's elected and appointed
officials, officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
19.ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void. Notwithstanding the foregoing, a party
may assign this Agreement without the other party's consent (i) as part of a corporate
reorganization, consolidation, merger, or sale of substantially all of its assets or capital stock; or
(ii) to an affiliate of such party provided that any such assignment will not release the assigning
party from its obligations under this Agreement.
20. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will
act as an independent contractor and will have control of all work and the manner in which it is
performed. CONSULTANT will be free to contract for similar service to be performed for other
employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY
and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY
provides for its employees. Any provision in this Agreement that may appear to give CITY the
right to direct CONSULTANT as to the details of doing the work or to exercise a measure of
control over the work means that CONSULTANT will follow the direction of the CITY as to end
results of the work only.
City of El Segundo
Page 4
Agreement No. 6421
21. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect
to all services and matters covered under this Agreement. CITY will have access at all
reasonable times to such records, and the right to examine and audit the same. CONSULTANT
will retain such financial and program service records for at least three (3) years after
termination or final payment under this Agreement.
22. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times
this Agreement is effective, CONSULTANT will procure and maintain the
following types of insurance with coverage 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
Business automobile liability $1,000,000
Workers compensation Statutory requirement
B. 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 CITY as an "additional
insured" under said insurance coverage and to state that such insurance will be
deemed "primary" such that any other insurance that may be carried by CITY will
be excess thereto. CITY's additional insured status will apply with respect to
liability and defense of suits arising out of CONSULTANT's acts or omissions.
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 CITY by CONSULTANT.
C. Technology Errors and Omissions coverage will be on an "occurrence basis" if
such coverage is available, or on a "claims made" basis if not available.
D. CONSULTANT will furnish to CITY valid Certificates of Insurance evidencing
maintenance of the insurance required under this Agreement, a copy of an
Additional Insured endorsement confirming CITY has been given Insured status
under the CONSULTANT's General Liability policy.
E. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may terminate pursuant to Section 15.
23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval
to use any consultants specifically for this Agreement while performing any portion of this
Agreement. Such approval must approve of the proposed consultant and the terms of
compensation.
City of El Segundo
Page 5
Agreement No. 6421
24. NOTICES. All communications to either party by the other party will be deemed made when
received by such party at its respective name and address as follows:
If to CONSULTANT:
Innovative Interfaces Incorporated
3133 W. Frye Rd, Ste. 400
Chandler, AZ 85226
(510) 289-0134
Attention: Tom McNamara
If to CITY°
City of El Segundo
350 Main Street
El Segundo, CA 90245
(310) 524-2392
Attention: Jose Calderon
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices
are to be given by giving notice in the manner prescribed in this paragraph.
25. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and
regulations including, without limitation, CITY's conflict of interest regulations.
26. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person, other than CONSULTANT's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
27. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is generally
for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other party.
There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's
obligations under this Agreement.
28. INTERPRETATION. This Agreement was drafted in and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
29. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and
local laws applicable to this Agreement.
30. ENTIRE AGREEMENT. This Agreement, and its Exhibits, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are 3 Exhibits to this Agreement. This Agreement
will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
31. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this
Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
City of El Segundo
Page 6
Agreement No. 6421
32. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
33. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action
has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
34. ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
electronic (.pdf) or facsimile transmission. Such electronic or facsimile signature will be treated
in all respects as having the same effect as an original signature.
35. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
36. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
37. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
38. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents
that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to
perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, and experience in
dealing with public agencies all suggest that CONSULTANT is capable of performing the
proposed contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
[Signatures on next page]
City of El Segundo
Page 7
Agreement No. 6421
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
CITY OF EL SEGUNDO
Darrell George,
City Manager
ATTEST:
4W
Tracy Maver,
City Clerk
APPROVED AS TO FORM:
MARK D. HENSLEY, CITY ATTORNEY
Vazquez,
City Attorney
APMOVED AS TO TECHNICAL
SPECIFICAT4'ON
pe aeron,
rector of Information Services
INSURANCE APPROVED BY:
Hank
Risk
City of El Segundo
Page 8
INNOVATIVE INTERFACES
INCORPORATED
BY: Jeff An ` s
usbigian
Its: VP Commercial Operations
Taxpayer ID No. 94-2553274
Agreement no. t34z i
EXHIBIT A
INNOVATIVE INTERFACES INCORPORATED
MASTER PROFESSIONAL SERVICES AGREEMENT
This Master Professional Services Agreement ("Services Agreement") is entered into by and between
Innovative Interfaces Incorporated, a California corporation ("Innovative"), and the party identified as Client below
("Client"), as of the "Effective Date" also set forth below.
Client
City of El Segundo
Address
111 W Mariposa Ave.
_._.�............. .�___� ........_..
El Segundo, CA 90245
Customer No.
CU0343
Effective Date
September 9, 2022
License Agreement Date
November 1, 2022
1. Definitions..
a. "GTCs" means the Innovative Interfaces Incorporated Master Professional Services Agreement General
Terms and Conditions in Exhibit A.
b. "SOW' means one or more Statements of Work attached as an exhibit hereto and executed by the parties
hereto from time to time on or after the Effective Date.
2. General. Innovative and Client agree that this Services Agreement is a binding agreement between the
parties and is governed by the GTCs, which are made a part hereof. This Services Agreement, the GTCs and all
other exhibits, schedules and terms and conditions referenced by or in this Services Agreement or the GTCs
together constitute the "Agreement." Client acknowledges and agrees that it has had the opportunity to review the
Agreement, including without limitation, the GTCs, prior to the execution of this Agreement. Innovative recommends
that Client print a copy of each component of this Agreement for Client's records. Unless otherwise specified,
capitalized terms in this Services Agreement have the same meaning as those in the GTCs. This Agreement is
governed by and interpreted in accordance with the internal substantive laws of New York, without regard to any
other laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention
on Contracts for the International Sale of Goods is hereby excluded.
EXHIBITS TO SERVICES AGREEMENT
A
General Terms and Conditions
B
Statement(s) of Work
C
Pricing Exhibit
[Signature page follows]
Page 1 of 22
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as
of the Effective Date.
Client
Innovative
City of Ell Segundo
Innovative Interfaces Incorporated
6�)
By:
By: —
Name:
Name:
Jeff Anusbigian
Title:
Title:
VP Commercial Operations
Date:
Date: September 28, 2022
Page 2 of 22
Exhibit A
Master Professional Services Agreement
General Terms and Conditions
The parties agree that their contractual relationship with respect to the Services will be governed by the
terms and conditions of (1) this Master Professional Services Agreement General Terms and Conditions ("GTCs"),
(2) the applicable Innovative Interfaces Incorporated Master Professional Services Agreement(s) (each, a "Services
Agreement"), and (3) all other applicable exhibits, schedules and terms and conditions referenced by or in the GTCs
and Services Agreement(s). Each Services Agreement, together with the terms and conditions of these GTCs and
all applicable exhibits or schedules incorporated by reference or referenced therein will constitute and be construed
as a separate agreement. Unless otherwise specified, capitalized terms in these GTCs have the same meaning as
those in the Services Agreement.
1. Scope and Performance of Services.
Each SOW will detail (i) the requirements for implementation of the Software (as defined below) or such other
professional consulting services as the parties may mutually agree (the "Services"), and (ii) any tangible work
product or other deliverables to be provided to Client by Innovative in conjunction with the Services ("Work
Product"), each of which is subject to the terms and conditions set forth in this Agreement. Any such SOW,
when executed by the parties, will be deemed incorporated into this Agreement and made a part hereof for all
purposes. Innovative will provide the Services on the terms contained in this Agreement. The term "Software"
has the meaning assigned in that separate License Agreement between the parties dated as of the License
Agreement Date identified in the Services Agreement.
b. Client will be deemed to have accepted the Services as billed on a time and material basis unless otherwise
specified in the applicable SOW.
c. Innovative is permitted to, at its sole cost and expense, subcontract the performance of some or all of the
Services provided that (i) Innovative's subcontractor agrees in writing to abide by the terms of this Agreement,
and (ii) Innovative remains fully responsible for the performance of such subcontractor in accordance with the
terms hereof. In performing any Services at Client's site, Innovative's and its subcontractors' personnel
(collectively, the "Consulting Personnel") must adhere to all reasonable personal conduct and security policies
of Client provided in writing to Innovative in advance. Unless otherwise agreed to by both parties, the Consulting
Personnel will observe the working hours and holiday schedules of Client while working on Client's premises.
Although Innovative will perform much of the Services at its offices with its equipment, in order to facilitate the
performance of the Services, Client will make available in a timely manner, at no charge to Innovative, all
facilities, programs, files, equipment, documentation, test data, sample output, or other information and
resources reasonably required by Innovative for the performance of the Services ("Client Resources").
Innovative and its subcontractors are hereby granted a nonexclusive, non-transferrable, non -sub -licensable,
fully paid -up license to use the Client Resources during the term of this Agreement for the sole purpose of
performing the Services. Innovative will not be liable for any damages related to delays caused by Client's
failure to fulfill the foregoing obligations.
2. Change Orders. The parties may make changes to the Services specified in an SOW by executing a mutually
agreeable "Change Order" that sets forth (i) a description of the change(s), and (ii) the price and payment terms
(if any) for the change(s). Once so approved, the Change Order will constitute a formal amendment to the
applicable SOW, and will be deemed incorporated into this Agreement and made a part hereof for all purposes.
3. Proprietary Rights and Ownership.
a. All Intellectual Property Rights (as defined below) in the Services and Work Product provided or made available
to Client by Innovative hereunder (including all improvements, enhancements, modifications or updates)
("Innovative Products") will remain the exclusive, sole and absolute property of Innovative or the third parties
from whom Innovative has obtained the right to use the Innovative Products. Intellectual property created by
Innovative pursuant to this Agreement, or any other party at the request or direction of Innovative, will be owned
by Innovative. "Intellectual Property Rights" means any and all intellectual property rights existing from time to
time under any law or regulation, including without limitation, patent law, copyright law, semiconductor chip
protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, or
Page 3 of 22
privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions
and restorations of any of the foregoing, now or hereafter in force and effect worldwide. During the term of this
Agreement, subject to the terms and conditions set forth herein, Client will have a personal, non -transferable,
non-exclusive, right and license to use the Work Product solely for the Software and internal business purposes
of Client. Client will at all times retain all intellectual property rights in all Client Data (as defined in the License
Agreement) and any proprietary information and materials provided by Client in connection with the Services
provided hereunder.
b. For purposes of this Agreement, as between Innovative and Client, any intellectual property in the Innovative
Products to the extent owned by any third party will be and remain the exclusive property of such third party.
c. Client acknowledges that Innovative is engaged in the process of continuously improving its products which
provide software solutions to manage libraries for a wide variety of clients and that Innovative will continue
these activities. Nothing in this Agreement will be deemed to preclude or limit Innovative from using intellectual
property developed in the provision of the Services hereunder and/or developing any products, end -user
services, or other deliverable materials for itself or other clients, so long as such services and/or products do
not incorporate Client's Confidential Information or Client Data.
d. If, in the course of receiving the Services, Client Data is provided by Client or its vendors to Innovative, such
Client Data will be managed in accordance with the License Agreement.
4. Fees; Expenses; Payment Terms.
a. In consideration for the Services, Client agrees to pay the fees set forth in each applicable SOW or Pricing
Exhibit (the "Fees"). Additionally, Client will be responsible for all reasonable out-of-pocket costs and expenses
(e.g. travel, copying and courier services) incurred by Innovative in its performance of this Agreement.
b. All Fees and expenses will be billed up to twice monthly in arrears or as may otherwise be specified in the
applicable SOW or Pricing Exhibit. All Fees, expenses and any other amounts owing under this Agreement are
due and payable on the terms set forth in the Pricing Exhibit. All amounts stated herein and all Fees determined
hereunder are in U.S. dollars.
c. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the
delivery of the Services, all of which Client will be responsible for and will pay in full, other than taxes based on
Innovative's net income. Client will provide Innovative its state -issued Direct Pay Exemption Certificate (or
equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing
authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this
Agreement at any time, Client and not Innovative, will be solely responsible for payment of such additional taxes
and all costs associated with such assessment, including without limitation, interest, penalties and attorney's
fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to
withhold or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative
will be increased by the amount necessary to yield to Innovative an amount equal to the sum Innovative would
have received had no withholdings or deductions been made.
d. Any invoices not paid when due will accrue interest at a rate of 1 % per month or the maximum rate permitted
by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that all Services rendered pursuant to this Agreement will
be performed in professional manner consistent with industry practices. Innovative agrees to re -perform any
Services not in compliance with this warranty brought to its attention within thirty (30) days after those Services
are performed.
b. Innovative warrants, solely for the benefit of Client that for a period of 30 (thirty) days after delivery, the Work
Product delivered will perform in accordance with the specifications contained in the applicable SOW.
Innovative agrees to correct any such Work Product not in compliance with this warranty brought to its attention
within the foregoing warranty period.
Page 4 of 22
c. The exclusive remedy of Client under the limited warranties set forth in Sections 5(a) and 5(b) are set forth in
Sections 5(a) and 5(b), respectively.
EXCEPT FOR (i) THE WARRANTIES EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY
WARRANTY, REPRESENTATION OR CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED
OR LIMITED UNDER APPLICABLE LAW, INNOVATIVE AND ITS AFFILIATES, AGENTS,
SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, AND
EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, REPRESENTATIONS AND
CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OR UNDER STATUTE,
COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOUT LIMITING THE FOREGOING,
INNOVATIVE AND ITS AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS DO NOT WARRANT,
AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, THAT THE SOFTWARE OR
OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL SATISFY CLIENT'S
REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT -FREE OR
UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL BE
CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 5(a) AND 5(b), THE SERVICES
AND WORK PRODUCT ARE PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY
FOR SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF.
6. LIMITATIONS ON LIABILITY. IN NO EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR
OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
UNDER ANY CIRCUMSTANCES WHATSOEVER, EVEN IF INNOVATIVE HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE OTHERWISE FORESEEABLE. INNOVATIVE'S
TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER DAMAGES WILL NOT EXCEED THE TOTAL
AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER THE APPLICABLE SOW UPON WHICH
A CLAIM IS FIRSTASSERTED AGAINST INNOVATIVE, LESS AGGREGATE DAMAGES PREVIOUSLY PAID
BY INNOVATIVE UNDER THIS AGREEMENT. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM OR
DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH
IN SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE
IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES
ABOVE WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification. Innovative will defend Client in any legal action filed by a third party against Client claiming
the Services or Work Product as delivered to Client by Innovative pursuant to Section 1 infringes a U.S.
copyright or U.S. patent; provided in each case that Client promptly notifies Innovative in writing of such claim
and fully cooperates with Innovative in the defense of such claim. Innovative will also indemnify and hold Client
harmless from any and all damages and costs (including reasonable attorney's fees) finally awarded by a court
of competent jurisdiction in connection with any such claim, or agreed by Innovative in a settlement of such
claim. Innovative will conduct the defense and any settlement negotiations in any such third -party action arising
as described herein. This indemnification is limited to the Services and Work Product in the form delivered to
Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by
Innovative, at the request of Client; (y) use of the Services and Work Product in combination with other software
or items not provided by Innovative; or (z) third -party source code included in the Services and Work Product.
If the use of the Services or Work Product by Client is enjoined, Innovative will, at its sole option: (i) obtain for
Client the right to continue to use the Services or Work Product, (ii) modify the Services and Work Product to
remove the cause of the claim, action or suit, (iii) replace the Services and Work Product at no additional charge
to Client with an equally suitable, non -infringing service or work product, which will then be subject to the
provisions of this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees
allocable to the infringing component of the Services and Work Product, prorated for the period Client's use of
the Services and Work Product is enjoined. None of the above warranties or remedies will apply with respect
to any element of the Services and Work Product that has been modified by any party other than Innovative, or
used in a manner for which the Services and Work Product are not designed or intended. This section states
Innovative's entire liability and Client's exclusive remedies for infringement of intellectual property rights of any
kind.
Page 5 of 22
ent No.
8. Confidentiality
a. Innovative acknowledges that any Client Resources or information, data, or documents disclosed by Client to
Innovative in its performance hereunder are confidential and proprietary information of Client. Client
acknowledges that all documentation, technical information, Software and other information pertaining to the
Services, and/or Innovative's business interests or activities, methods of operation or customers that are
disclosed by any party to Client in the course of performing this Agreement are the confidential and proprietary
information of Innovative. The information and materials described in the two preceding sentences are referred
to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does
not include information pertaining to a party if such information (i) is generally known to the public through no
improper action or inaction by the other party, (ii) was, through no improper action or inaction by the other party,
in the possession of the other party prior to the Effective Date, or (iii) was rightly disclosed to the other party by
a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by
which such third party may be bound.
All Confidential Information will be held in confidence and will not be copied, used or disclosed other than as
set forth in this Agreement. Each party will take all reasonable efforts to protect the confidentiality of and prevent
the unauthorized use of any such Confidential Information by any third party within such party's control. Each
party may disclose Confidential Information (i) to the receiving party's employees and contractors required to
have access to said Confidential Information for the purposes of performing this Agreement or using the Work
Product, provided that such parties have entered into a non -disclosure agreement offering similar protection as
is provided under this Agreement; or (ii) if such disclosure is in response to a valid order of any court or other
governmental body, in which event, the disclosing party will use reasonable efforts to provide the other party
with prior notice of such required disclosure.
c. Recognizing that any improper use or disclosure of any Confidential Information by either party may cause the
party whose Confidential Information is improperly used or disclosed irreparable damage for which other
remedies may be inadequate, a party whose Confidential Information is improperly used or disclosed will have
the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate
to prevent any unauthorized use or disclosure of such Confidential Information.
9. Term; Termination.
a. This Agreement will be effective as of the Effective Date and will remain in effect until terminated as permitted
under this section. Client may terminate this Agreement or an SOW at any time without cause upon 30 (thirty)
days prior notice. Client may terminate this Agreement at any time if Client's budget (funding) is eliminated and
Client provides written evidence to Innovative of the elimination of Client's budget (funding), such evidence to
be in the form and substance reasonably requested by Innovative. Innovative may terminate this Agreement or
an SOW for cause (i) if Client breaches any material term or condition of this Agreement or an SOW and such
breach continues unremedied for 30 (thirty) days after delivery of written notice of such breach to Client, or (ii)
if Client is declared bankrupt, admits its inability to satisfy its debts, or enters into any negotiation with its
creditors for the settlement of its debts. Any notice of termination expressly purporting to terminate this
Agreement in its entirety will also effectively terminate any and all SOWS then outstanding. Contrarily, any
notice of termination purporting only to terminate one or more SOWs (but not purporting to terminate this
Agreement or otherwise remaining silent as to the termination of this Agreement) will effectively terminate only
such identified SOW(s), in which event this Agreement and all other outstanding SOWs will survive.
b. Upon any termination of this Agreement, all paid Fees will be nonrefundable and Client will be responsible for
all Fees and expenses for all Work Product provided or Services performed up to, and including, the date of
termination. Otherwise, the rights and duties of the parties will terminate other than the obligation of the Client
to pay Fees and expenses in accordance herewith, and the obligations of the parties pursuant to Section 3
(Ownership), Section 6 (Limitations on Liability), Section 7 (Indemnification), Section 8 (Confidentiality), and the
governing law and venue provisions of this Agreement. Any termination of this Agreement will not waive or
otherwise adversely affect any other rights or remedies the terminating party may have under the terms of this
Agreement. Within 30 (thirty) days of a termination of this Agreement, each party must return or destroy all
Confidential Information of the other party, as requested by the other party.
10. Consulting Personnel. Innovative agrees to keep accurate and complete records of tasks and hours of the
Consulting Personnel in performing the Services. Innovative will be solely responsible for, at its own cost,
Page 6 of 22
verifying the employment history, educational and professional credentials and licenses, and criminal history of
each of the Consulting Personnel. In providing the Services, Innovative will not knowingly utilize Consulting
Personnel who have been convicted of fraud, theft, larceny, embezzlement or any other felony or other crime
of moral turpitude. Innovative is solely responsible to ensure that all Consulting Personnel are in compliance
with the Immigration Reform and Control Act of 1986 ("IRCA"). Specifically, Innovative will comply fully with the
record keeping and other requirements of IRCA, including without limitation all 1-9 requirements. Client is not
responsible for sponsorship of any workers who perform Services for it at the request of Innovative. For
Innovative employees working in the United States pursuant to this Agreement, Innovative will provide to Client
only workers for whom Innovative has confirmed legal liability to perform services as employees in the United
States, and for whom all required record keeping under IRCA has been performed and maintained. No
Consulting Personnel will be entitled to participate in any compensation or benefits plan of Client. Innovative
will be solely responsible for the payment of wages and any employee benefits to or on behalf of the Consulting
Personnel for work performed under this Agreement and for withholding of any and all federal, state and local
income taxes, paying social security taxes, unemployment insurance in an amount and under such terms as
required by federal, state, or local law.
11. Back -Up Activities. Client has the sole responsibility for the maintenance and protection of all data provided
by Client to Innovative for performance of the Services, including, without limitation, the making, storing and
security of back-up and archive copies of such data (collectively "Back -Up Activities"), and Client acknowledges
Innovative will not perform any Back -Up Activities for or on behalf of Client.
12. General,
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the
other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of future breaches.
b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and that
Client's relationship with Innovative is not one of principal and agent nor employer and employee. No
Consulting Personnel will be entitled to participate in any compensation or benefits plan of Client.
c. Force I'ajeure. Neither party will be liable or responsible for any delay or failure in performance if such delay
or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo, government
regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions of
carriers, third party local exchange and long distance carriers, utilities, Internet service providers, transmitters,
vandals, or hackers, or any other similar causes that may be beyond its control.
d. Notice. Any notice or communication required to be given by either party must be in writing and made by hand
delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such
communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses
set forth on the first page of the Service Agreement. Notice will be deemed given on the date of receipt or first
refusal by the recipient. All communications pursuant to this Section will be deemed delivered as follows: (a)
upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when
electronically confirmed, if delivered by facsimile.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will, as
to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting
in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or
similar format for scanned copies of documents) or facsimile signature, each of which when so executed and
delivered will be an original, but all such counterparts together constitute but one and the same instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or
other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue
public statements pertaining to the existence of the business relationship between Innovative and Client,
Page 7 of 22
including the right to limited use of Client's name, logo and other reasonable non -confidential information in
press releases, web pages, advertisements, and other marketing materials.
h. Assignment. Neither party has the power to assign, license, or sub -license any of its rights or obligations
hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any
assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing,
a party may assign this Agreement without the other party's consent (i) as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an affiliate of such party
provided that any such assignment will not release the assigning party from its obligations under this
Agreement.
i. Waiver of Ju Trial: Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL
IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in
the English language; any translation of this Agreement into another language will be for convenience only but
will not modify the meaning hereof. Only a written instrument duly executed by both parties may modify this
Agreement.
Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish
or affect any separate confidentiality agreement, license agreement or other document issued thereunder. The
parties represent that they are sophisticated commercial entities, have had the opportunity to consult with their
own counsel, and have included in this Agreement all terms material to the parties' rights and obligations with
respect to the subject matter hereof and intend this document to be the final expression of their contractual
intent. The parties further represent and acknowledge that communications exchanged between the parties
during contract negotiation (including without limitation requests for proposals ("RFPs") and responses to such
RFPs, questionnaires and responses to same) do not constitute a part of this Agreement. Purchase orders,
work orders or other documents submitted by Client will be for Client's internal administrative purposes only
and the terms and conditions contained in any such purchase order, work order or other document will have no
force or effect and will not amend or modify this Agreement. In the event of any inconsistencies or conflicts
among the GTCs, a Services Agreement or any other exhibits or schedules referenced by these GTCs, the
following order of priority will control: 1. Service Agreement, 2. GTCs and 3. Any other terms, agreements,
exhibits or schedules included in, or referenced by the Agreement.
Page 8 of 22
Agreement o. 6421
Exhibit B
Statement of Work
[Statement of Work follows]
Page 9 of 22
Agreement No. 6421
Statement of Work
This Statement of Work (the "SOW') dated September 9, 2022, is entered into pursuant to the
Master Professional Services Agreement between City of El Segundo ("Client") and Innovative
Interfaces Incorporated ("Innovative") effective as of September 9, 2022 (the "Agreement").
Innovative and Client may each be referred to as "Party" from time to time or collectively as
"Parties".
Purpose of this Statement of Work
The SOW provides an overview of the scope of the project and cost to complete the
engagement based on Innovative's prior experience with similar projects and discussions with
Client. The Client hereby acknowledges that the SOW will capture all detailed requirements
and documents the high-level requirements and implementation approach discussed. A final
detailed requirements document will be provided to the Client for sign off on the final functional
scope.
Implementation Methodology
Innovative will provide an industry proven implementation methodology that ensures the
success of both the project management and technical aspects of the software implementation
project.
The goal of Innovative's project management is to ensure 1) that all aspects of the project are
tracked and managed effectively, 2) risks and issues are tracked and managed effectively, and
3) all project personnel, at Innovative and the Client, have on -demand access to all project
management tools, documentation, and status information.
To facilitate access to project information and resources, by Innovative and the Client,
Innovative will establish an online project management site. The project management site will
serve as the master archive for all project planning and management documents and
databases, product documentation and inter -staff communication tools. The site will be
established immediately upon assignment of the contract to the Innovative Project Manager,
and access for Client project staff will be provided upon creation. The project management site
will serve as the primary communication and sharing hub for the project management
documents, tools, and methods.
Following contract signing, the Innovative project manager will work directly with the Client's
implementation team to finalize a project schedule, and to reserve resources within our
implementation team. The final schedule will be negotiated directly with the Client, and take
into account Client staff availability for profiling and project management, and the various
technical tasks that are required.
III. Scope of Services
A. Polaris Implementation
1. Project Initiation and Kickoff
During this phase the parties set up management of the project, agree on project team
members for both parties, and setup the project reporting and timeline management
process. The Project Manager will execute the project plan for Innovative, and work in
conjunction with the migration team at the Client. Key elements of the process include:
• Jointly developing a project schedule, at the beginning of the project, to track the
execution and delivery of every key aspect of the migration project
• Jointly developing a list of project risks that need to be planned for and managed
during the implementation project, as well as assigning the individuals responsible
for managing each area
Page 10 of 22
Agreement No. 6421
• Regularly scheduled conference calls between the project team at Innovative and
the Client, to review the status of project tasks, discuss and resolve areas of
concern, and discussion of risk areas
Regular status reports to the Client
• Working sessions, early in the project, to develop the plans named above, to
explain the implementation process, answer questions, and to develop the policy
and data mappings that will be required to configure Polaris and load Client data
Profiling
i. Innovative will provide 2 days of on -site Profiling:
Profiling services are conducted as working sessions, between the Innovative
Project Manager and the ILS automation team at the Client. During the working
sessions, the Project Manager will work with the automation team to document
an extensive collection of system policy and profile information including, in part:
o System, library and branch identities and locations, hours of operation,
holidays, free days, patron and statistical categories, shelving locations,
collections, material types, and numerous other operations parameters
o Network and workstation data
o Policy data such as circulation policies, fines and fees, notifications and
notification policies, overdues, holds policies, holds routing, and numerous
other pieces of policy information.
A comprehensive set of profiling guides and worksheets, will be provided to the
Client in advance of system profiling. These guides will allow the Client to
understand the profiling decisions that must be made by the automation team and
allow for data collection to commence in advance of the profiling working sessions
with the Project Manager. The provided guides, as well as the consultation
provided by the Project Manager during the profiling working sessions, assist the
Client in understanding the decisions being made, their impact on system
operation once in production, and the implications of some profiling decisions on
other decisions that must be made. Following profiling sessions, the Innovative
project manager will use existing system migration tools to load the policy and
profile information directly into the Polaris test/training database.
3. Software Setup and Access in Cloud Environment
Innovative will install the Polaris Success bundle in the Cloud environment and upon
completion, the Client will confirm access to the software bundle outlined below and accept
the software installation phase as complete.
Polaris Success Bundle
o Acquisitions
• EDI - Electronic Ordering
• EDI - Electronic Invoicing
• Titles to Go
• Selection Lists
o Cataloging
• Polaris Authority Control
• Export Express
• Z39.50 Client, Broadcast & Server
o Circulation
• Classic Inventory Control
• Collection Agency / Debt Collection (Unique Management)
• eCommerce - PowerPAC
• Self -Check using Express Check
• Floating Collections
• Holds
Page 11 of 22
Agreement No. 6421
• Outreach
• Interlibrary Loan
• RFID Integration
• NCIP for Third -party ILL
• Notices
• Offline Circulation
• Patron Images
• SIP2 Interface for Self Check
o eContent Integration
o Unlimited PowerPAC Users
• Children's PAC
• Did you mean? (spellcheck)
• Feature It
• Location -based Profiles & PowerPAC Localization
• Patron Self -Registration
• Remote Patron Authentication against Polaris patron DB
• RSS Feed Builder
• URL Detective
o Serials
• Claiming
o Polaris REST APIs
o Polaris Canned Reports
o Simply Reports
o SQL query access (read only) with Microsoft reporting services
4. Data Migration
Innovative will employ a "one database" concept for the Polaris implementation. The one
database concept means that a single "shell" database is created at the beginning of the
implementation, and as the implementation proceeds, successive layers of data and
configuration are added to the database. The same database that the Client starts with at
the beginning of the implementation is the same database that the Client eventually goes
live on at the end of the implementation. The evolution of the database will proceed as
follows:
Shortly after the initial training server installation is completed, Innovative will, put
a "shell profiling database" in place. The evolutions of the database are described
below. Each evolution of the database builds on the information gained from the
testing of the previous evolution and replaces the previous evolution:
• The first evolution of the database will occur during system profiling, when
Client staff will work with the Innovative project manager to profile the system.
Following system profiling working sessions, between the Client and
Innovative, system policies, permission groups, users, workstations, and other
data will be entered directly into the shell database to configure it for the
Client's implementation.
The second evolution of the database will occur when the first (test) data load
is completed. Following the test load, the database becomes the "training
database". At this point in the implementation a fully functional, and fully
populated, Polaris database exists. This database will be used for all profile
and data migration testing and analysis, workflow analysis and consultation,
and for all training. Access to the database is provided after the first data load
is complete.
Page 12 of 22
Agreement No. 6421
The third evolution of the database will occur in preparation for Go Live. The
final data load is done on the profiled database and it is ready for production
use.
ii. Innovative will provide Data Migration Services to migrate the Client's data from
their existing ILS into the Polaris ILS include extraction (if contracted for), analysis,
mapping and loading of data into the Polaris Test/Training Database, as well as
extraction, migration and loading of the production database immediately prior to
go -live on Polaris.
iii. Data extraction and migration is performed in accordance with the specifications
put forth in the Innovative Data Migration Guide. This guide specifies all data types
that will be migrated from the legacy system. Included records are bibliographic,
authority, item, patron, checkout, holds and fines records. If the Client desires that
other data types be migrated, feasibility and cost of migration will be determined
at the time of the request.
iv. During the course of the data load, the Client is responsible for working with
Innovative on data verification to ensure that all of the data is migrated and
reconciled over the course of the implementation. Pricing includes two full loads
(test and production). Because of our data loading methodology, additional loads
are usually not required. However, if the Client desires additional loads to be
performed, they can be quoted for an additional cost.
5. Software Configuration
Innovative will adapt the system to Client's needs within the existing functionality in Polaris
based on policy and other information gathered during Profiling sessions.
6. Training Services are delivered through onsite and web -based sessions. Training topics
will be detailed in the schedule during the preparation phase based on Client go -live
priorities and target dates.
The training sessions will include the following:
0 6 days of training online/onsite
0 3 Days of Patron Services and Cataloging Training
0 2 Days of Acquisitions Training
0 1 Day of Serials Training
o Up to Twenty -Four (24) hours of instructor led online webinar training on the
following topics as applicable:
o System Administration
o Simply Reports
c Outreach Services
0 Export Express
o Feature IT
o ILL
o PAC
7. Go -Live
The Go -Live phase will begin one to two weeks before go -live (based on the schedule to
be negotiated with the Client), when the final extraction of bibliographic records from the
legacy database takes place. The key steps in the final go -live process are as follows:
i. Library Staff must complete training on the Polaris Offline client in preparation for
going offline after the final data extraction.
ii. A copy of the Polaris test/training database will be copied to the Polaris Test
database (if applicable) and the database on the production server will be
scrubbed of the training data.
Page 13 of 22
Agreement No. 6421
iii. The final data extraction will be performed from the legacy ILS (bibs, items,
patrons, circ and holds data, etc.). At this point, no more work can be done in the
legacy ILS.
iv. Staff begin off-line circulation in Polaris. In this mode, staff can check items in and
out, and new patrons can be registered.
V. Client staff will work with Innovative, and other vendors, to switch 3rd party
products and services to point to the Polaris production database. Innovative will
provide the necessary information such as IP addresses, port numbers and URLs
that the Client needs to share with 3rd party vendors.
vi. The production data load is completed.
vii. Innovative and Client conduct QA of the database, and Client accepts the data
load.
viii. Offline circulation files are uploaded to the Polaris production database.
ix. In -library PAC stations are switched to point to the Polaris PAC. Staff begin
circulation in Polaris in on-line mode, and the Client goes live on Polaris.
X. During the Go Live process, Innovative provides online consulting and assistance,
as needed.
IV, Acceptance Testing
Client will have thirty (30) days to verify functions outlined in the scope of work. Material defects
not in compliance must be submitted in writing. Innovative shall clarify and resolve blocker
problems within thirty (30) days of receipt of report or provide the Client with a written estimate
of when resolution will occur. Within seven (7) days of receipt of notice of resolution from
Innovative, the Client shall retest the function and confirm that the function has or has not been
resolved. If not resolved, Innovative will continue working to resolve the problem until resolution
is accepted by the Client. Once resolved. the Client's rights provided above will reset giving the
Client another thirty (30) days.
V. Project Timeline
The following sample timeline begins after contract signing and outlines overall steps and
responsibilities for a typical Polaris implementation. Event order and event time frames may be
adjusted, e.g. time allotted for Client tasks may be extended or compressed. A project plan
tailored to Client will be mutually agreed upon after project kickoff. The work plan, milestones,
and deliverables will include a delivery/completion schedule that clearly identifies the
deliverables, responsible parties, and the time of delivery.
MAJOR TASKS
Contract Signing
Initial Phone Call with Customer to discuss project and profiles
DATES
Week 1
Week 1
Libra set-up in Su ortal Access, Documentation, Usage)
Site Visit Profile creation
Week 2
Week 3
Server staging
Week 4
Libra System completes and submits Profiles to Project Mana er
Week 6
Data Pull for Test load data analysis
Week 6
Implementation Profile input, review, and finalization
Week 7
Data Mapping
Week 8
Test data load
WW
Week 9
Polaris QA of Data Load
Library System has access to Test database for review and training
Training — P1 — Circulation Cataloging and PAC
Week 10
Week 11
Week 13
Acce tance Testing by Library System begins
Week 13
Library System internal staff training
Week 13
Page 14 of 22
Agreement No. 6421
Third Party prep.,and testing
Week 13
Training — P2 —Acquisitions and Serials
Week 17
Training via Webinar
Week 18
Pre are for Polaris Offline
Week 20
Data Sign -off for Production load
Week 20
Library System is Offline with Polaris
Week 21
Final data migration on Production server
Week 21
Final Data QA
Week 21
Library System review of Production database and upload offline files
Week 21
Library System is Live on Polaris
Week 21
Completion of System Acceptance Testing
Transition to Polaris Support
Week 25
Week 26
VI. Fees and Payment Terms
Fees for Services delivered under this SOW will be charged on a fixed price basis as set forth in
the Innovative Pricing Exhibit EST-INC15243 attached herewith. Payment terms for this SOW are
as set forth in the Professional Services Agreement. This Statement of Work estimate is valid for
30 days. Pricing assumes that deliverables in this Statement of Work are completed within six
months or additional Services fees will apply.
Service Milestones
Percentage
Milestone 1
Kickoff, Profiling Visit
10%
Milestone 2
Software Installed, Profiling D/B Created
10%
Milestone 3
Data Mappin2 for Test Load, Software Configuration
20%
Milestone 4
Test Load
20%
Milestone 5
Training
20%
Milestone 6
Production Load
1
10%
Milestone 7
Go Live, Acceptance Testing
10%
VII. Innovative Services Team
The process of ensuring a seamless migration to a new integrated library system begins
immediately after contract signing. After the contract is signed, Innovative will assign a project
team to Client implementation. The project team will consist of:
A. Project Manager: The Project Manager has extensive knowledge of the Polaris ILS, the
Polaris ILS database, library workflows, and library data. All Polaris Project Managers have
years of project management experience and have implemented ILS migrations for many
libraries.
B. Data Analyst: The data migration specialist is responsible for creating, maintaining, and
executing the SQL scripts, and other software, required for migrating Client existing ILS
databases into the Polaris ILS database. All Polaris Data Migration Specialists have
extensive SQL skills, in-depth knowledge of MARC and other library data, and many years
of experience in migrating ILS data.
C. Polaris Trainer/Consultant: One or more Polaris trainers/consultants will be assigned to
Client implementation, shortly after the project kicks off. Client trainers are selected based
on their knowledge of the specific subsystems and options that Client will be implementing,
as well as their experience in training similar libraries. All Polaris trainers have significant
experience in ILS operations and training.
D. Polaris System Engineer: The Polaris System Engineer performs the staging and
installation for Client Cloud system.
E. Executive Sponsor: The Executive Sponsor is assigned to the project to provide
oversight, be an escalation point, ensure the success of the project, and participate in the
project steering committee.
Page 15 of 22
Agreement No. 6421
By assigning this multi -disciplinary team to Client implementation Innovative can maximize the
familiarity of the project team with Client and Client implementation.
VIII. Client Implementation Team
In order to ensure a successful implementation, Innovative requests that the Client designate
individuals from Client staff to assume responsibility for the following roles
A. Executive Sponsor: Provides executive oversight, ensuring the project is aligned to meet
the goals of the Client project and Steering Committee.
B. Project Manager: Works directly with the Innovative Project Manager to ensure that risks
are mitigated, appropriate communication is achieved, and milestones are met. Works with
Innovative Project Manager to coordinate work plans, schedules, and teams' work. Will
manage day-to-day operational aspects and ensure deliverables are met. Responsible for
Project Steering Committee status reporting and Executive communications.
C. Librarian Lead: Works closely with Project Managers to ensure requirements are
comprehensive and representative of the needs of the Client. The Librarian Lead will
coordinate with key members of the team as required.
D. Technical Lead: Will be responsible for assisting with Client responsibilities related to data
migrations and any other system level duties required by Client.
IX. Implementation Assumptions
As part of the Innovative proposal for the implementation, we have outlined the following project
assumptions which are critical to the successful delivery of the project:
A. Client will have adequate resources available to ensure timely completion of any Client
tasks outlined in the project schedule.
B. Timeline for the completion of this project will be established, through joint planning
conversations between the Client and Innovative during the initial stage of the project.
C. Client will provide a technical point of contact who is able to provide, or coordinate access
to, necessary information and Client resources. This includes information related to server
access, collecting and providing any prerequisite information required to support
installation and configuration of software, and other needs that may arise during the project.
IN WITNESS WHEREOF each party has caused this SOW to be executed by its duly authorized
representatives.
AGREED:
Client
Innovative
City of El Segundo
Innovative Inte aces Incorporated
By:
g.J"
Name:
Name: Jeff Anusb igian
Title:
Title:
VP Commercial Operations
Date:
Date:
September 28, 2022
Page 16 of 22
Agreement No. 6421
Statement of Work
This Statement of Work (the "SOW') dated September 9, 2022, is entered into pursuant to the
Master Professional Services Agreement between City of El Segundo ("Client") and Innovative
Interfaces Incorporated ("Innovative") effective as of September 9, 2022 (the "Agreement").
Innovative and Client may each be referred to as "Party" from time to time or collectively as
"Parties".
A. Purpose of this Statement of Work
The SOW provides an overview of the scope of the project and fees to complete the
engagement based on Innovative's prior experience with similar projects and preliminary
discussions with Client. The Client hereby acknowledges that the SOW is not meant to capture
all detailed requirements but documents the high-level requirements and implementation
approach discussed and that additional detailed requirements discussions will be required to
outline the full scope of work between the Parties.
B. Project Scope of Services
The Scope of the project includes the following set of professional services:
1. Vega Discover+ Implementation
a) Innovative will install Vega Discover+ software.
Specified work includes, where necessary:
1) Project management
2) Requirements consultation between Client and Innovative
3) Installation and configuration of the purchased software modules on a single
production environment.
4) Post -implementation testing
5) Remediation of post -implementation issues, found during Innovative testing or
found by the Client during the implementation period
6) Minimum scope of service to include:
• Provisioning of a single production Vega Discover+ environment, and
connection to Client's production ILS
• Synchronization of production ILS and Vega Discover+ databases
• Configuration training session for Vega Discover+
• Product Overview session for Guides
• Consultation on Best Practices for use of Guides
• Introduction to Pendo administration web interface
• Publishing of 1s' Guide
No work will be performed on the Client's production environment without prior notification
to, and approval from, the Client. Work will be performed in pre -specified maintenance
windows, as agreed upon in advance between the Client and Innovative.
Any requested work, outside of the specifications listed above, will be quoted at an
additional cost, and written approval must be provided by the Client before work can
proceed.
C. Innovative Services Team
Page 17 of 22
Agreement No. 6421
The Services Team will have the following resources available for this project:
1. Project Manager: Project Managers have years of project management experience and
have implemented library systems for many libraries.
2. System Engineer: System Engineers work with the Client on ILS setup and configuration
as well as installations, network connections, and infrastructure configuration.
D. Client Implementation Team
1. Technical Lead: Will be responsible for assisting with Client responsibilities related to the
installation and any other system level duties required by Client.
E. Implementation Assumptions
1. Client's production ILS environment must be running the current General Availability ("GA")
version of the software, or later.
2. Client will have adequate resources available to ensure timely completion of any Client
tasks outlined in the project schedule.
3. Timeline for the completion of this project will be established, through joint planning
conversations between the Client and Innovative during the initial stage of the project.
4. Client will provide a technical point of contact who is able to provide, or coordinate access
to, necessary information and Client resources. This includes information related to server
access, collecting and providing any prerequisite information required to support
installation and configuration of software, and other needs that may arise during the project.
F. Fees and Payment Terms
Fees for Services delivered under this SOW will be charged on a fixed price basis as set forth
in the Innovative Pricing Exhibit EST-INC15258 attached herewith and are made in good faith
based on the activities, approach, and assumptions contained within the SOW. Payment terms
for this SOW are as set forth in the Agreement. Any additional Change Requests will be
performed at a blended rate of $200 per hour for all resources. Additionally, Client is
responsible for all reasonable out-of-pocket costs and expenses incurred during this SOW.
Pricing assumes that deliverables in this Statement of Work are completed within six months
or additional Services fees will apply.
IN WITNESS WHEREOF each party has caused this SOW to be executed by its duly authorized
representatives.
AGREED:
Client
Innovative
City of El Segundo
Innovative Interfaces Incorporated
By:
By:
Name:
Name: Jeff Anusbigian
Title:
Title: VP Commercial Operations
Date:
Date: September 28, 2022
Page 18 of 22
Agreement No. 6421
Page 19 of 22
Exhibit C
Pricing Exhibit
Additional Terms:
Fees. All Fees, expenses and other amounts owed to Innovative must be paid to Innovative within 30 days
following receipt of the invoice.
[Approved Quote follows]
Page 20 of 22
Agreement No. 6421
iii innovative
Part of Cari^t
Innovative Interfaces Incorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Bill To
El Segundo Public Library
111 W. Mariposa Ave.
El Segundo CA 90245
United States
Ship To
El Segundo Public Library
111 W. Mariposa Ave.
El Segundo CA 90245
United States
Pricing Exhibit
Date
7/29/2022
Quote #
EST-INC15243
Payment Terms
Net 30
Sales Rep
Tom McNamara
Technical Contact
CU0343 El Segundo Public Library
Site Code
elseg
Expires
9/30/2022
Currency
US Dollar
Total Fees US$19,995.00
Page 21 of 22
Agreement No. 6421
oa
lit innovative
Part of Clariat
Innovative Interfaces Incorporated
1900 Powell St.
Suite 400
Emeryville CA 94608
United States
Bill To
El Segundo Public Library
111 W. Mariposa Ave.
El Segundo CA 90245
United States
Ship To
El Segundo Public Library
111 W. Mariposa Ave.
El Segundo CA 90245
United States
Pricing Exhibit
Date
8/2/2022
Quote #
EST-INC15258
Payment Terms
Net 30
Sales Rep
Tom McNamara
Technical Contact
CU0343 El Segundo Public Library
Site Code
elseg
Expires
9/30/2022
Currency
US Dollar
Total Fees US$7,500.00
Page 22 of 22
reement No. 6421
EXHIBIT B
INNOVATIVE INTERFACES INCORPORATED
SUBSCRIPTION LICENSE AGREEMENT
This Subscription License Agreement ("License Agreement") is entered into by and between Innovative
Interfaces Incorporated, a California corporation ("Innovative"), and the party identified as Client below ("Client"), as
of the "Effective Date" also set forth below.
Client
City of El Segundo
Address
111 W Mariposa Ave.
El Segundo, CA 90245
Customer No.
CU0343
Effective Date
November 1, 2022
Initial Term
60 Months
1. Definitions.
"Go -Live Date" means the Client's first use of the Software in a production environment.
"GTCs" means the Innovative Interfaces Incorporated Subscription License Agreement General Terms and
Conditions in Exhibit B.
"Support Terms" means the Innovative Interfaces Incorporated Maintenance and Support Terms and Conditions
in Exhibit C.
"Hosting Terms" means the Innovative Interfaces Incorporated Hosting Terms and Conditions in Exhibit D.
2. General. Innovative and Client agree that this License Agreement is a binding agreement between the
parties and is governed by the GTCs, Support Terms and, if the attached Pricing Exhibit indicates that Client has
purchased hosting services, then the Hosting Terms, all of which are made a part hereof. This License Agreement,
the GTCs, Support Terms, Hosting Terms, if applicable, and all other exhibits, schedules and terms and conditions
referenced by or in this License Agreement, the GTCs, Support Terms or Hosting Terms together constitute the
"Agreement." Client acknowledges and agrees that it has had the opportunity to review the Agreement, including
without limitation, the GTCs, Support Terms and Hosting Terms, prior to the execution of this License Agreement.
Unless otherwise specified, capitalized terms in this License Agreement have the same meaning as those in the
GTCs. This Agreement is governed by and interpreted in accordance with the internal substantive laws of the State
of California, without regard to any other laws that would require the application of the laws of another jurisdiction.
Application of the U.N. Convention on Contracts for the International Sale of Goods is hereby excluded.
In consideration of Innovative's grant to Client of subscription licenses to the Software as described within Exhibit
A, Client acknowledges, and the parties agree, that all other existing software subscription agreements and
associated purchase orders between the parties, including the Subscription License Agreement made effective as
of November 1, 2019 and the Perpetual License Agreement made effective as of November 1, 2019 ("Prior
Agreement(s)"), will be deemed to be immediately terminated by the parties' mutual written agreement. To the
extent Client remains in possession of any proprietary Innovative documentation or materials subject to the Prior
Agreements Client agrees that it shall continue to keep such documentation and materials confidential pursuant to
the terms of the Agreement.
EXHIBITS TO LICENSE AGREEMENT
A PRICING EXHIBIT
B GENERAL TERMS AND CONDITIONS
C MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
Page 1 of 16
reement N
D I HOSTING SERVICES TERMS AND CONDITIONS
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as
of the Effective Date.
Client
Innovative
City of El Segundo
Innovative Interfaces Incorporated
By:
By:
Name:
Name:
Jeff Anusbigian
Title:
Title:
VP Commercial Operations
Date:
Date:
September 28, 2022
Page 2 of 16
reement No. b411
Exhibit A
Pricing Exhibit
1. Fees. All Fees must be paid to Innovative within 30 days from the invoice date or as stated on the invoice
if different.
2. Term. Subject to the early termination provisions set forth in the GTCs, this Agreement will be effective for
an initial term of five (5) years following the Effective Date (the "Initial Term"). This Agreement will be
automatically renewed for additional one (1) year terms (each„ a "Renewal Term" and, together with the
Initial Term, the "Term"), unless either party gives the other not less than ininety (90) days" prior written
notice of its intent to terminate this Agreement effective as of the end of the then -current Term. During the
Initial Term, Innovative will have the right to increase rates hereunder by a maximum percentage of 3.5%
over the previous year and by 5% thereafter.
[APPROVED SOFTWARE LICENSE QUOTE FOLLOWS THIS PAGE]
Page 3 of 16
Agreement No. 6421
Itt UI,"i oviat Pj'e
Part of Ciarivate
Innovative Interfaces Incorporated
3133 W. Frye Ind,
Suite 400
Chandler AZ 85226
United States
Bill To Ship To
El Segundo Public Library El Segundo Public Library
111 W. Mariposa Ave. 111 W. Mariposa Ave.
El Segundo CA 90245 El Segundo CA 90245
United States United States
Polaris Success License -Term
1
Polaris Public Success Bundle
Bundle - Public
Polaris is an integrated library system
solution to manage physical and digital
resources and library patron accounts.
Combines library operational
worknows with open architecture and
APIs for integratir in with external
systems. Supports staff tasks,
including a Web -based interface
(Leap), and patron access services.
Pubtic Success Bundle includes Core
Bundle functionality and adds:
eContent Integration, Carousel,
Outreach, up to 10 SIP2 Licenses,
Community Profiles, Staff -Facing
eCommerce, Inte ration with 3rd Party
Matron
Vendors, MobRe A
(MyLibrary!) & RES`rfjl APIppp
s.
Polaris License -Term
1
Multi -Tenant Cloud Hosting
Multi -Tenant
environment for Polaris in production
Hosting -
enables libraries to eliminate the
US/APAC
overhead of maintaining an on
premise server for Polaris ILS When
Polaris is hosted, Innovative takes
responsibility for release upgrades,
backups, and system / environment
maintenance & security updates.
Includes Terminal services, PAC
services, Reporting services,
Screwdriver services
Staff User License -Term
30
The Polaris Staff Client is licensed
Licenses
software that allows the end user to
accessall of the Polaris functionality
based on the permissions that are set
in System Administration. This
includes Circulation, Patron Services,
Cataloging, Acquisitions, Serials,
Utilities and System Admin. Additional
License for additional Staff User
License. A separate staff user license
I
is required for each concurrent
connection made from a staff client to
the Polaris ILS server, including from
Polaris Web Application (aka Leap).
Pricing Exhibit
Date
Quote #
Payment Terms
Overall Contract Term (Months)
Contract Start Date
Contract End Date
Sales Rep
Site Code
Expires
7,200
300
7/29/2022
EST-INC15242
Net 30
60
Tom McNamara
elseg
9/30/2022
Currency
US Dollar
30,000.00
7,200.00 1 7,200.00
0.00 1 0.00 1 100.0%
FirstYearTotal US$37,200.00
Page 4 of 16
Exhibit B
Innovative Interfaces Incorporated
Subscription License Agreement
General Terms and Conditions
Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the
License Agreement.
1. Software License,
a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of
the Fees (defined below) due hereunder, Innovative hereby grants to Client a limited, nonexclusive, non -sub -
licensable, nontransferable license to use the components of its software applications, modules, and other products
that are listed in the Pricing Exhibit to the License Agreement (collectively, the "Software"). The license granted in
the preceding sentence will be for the duration of the term of this Agreement and will automatically expire upon the
termination or expiration of this Agreement or as otherwise specified in this Agreement.
b. Client and, where applicable, its Authorized Users (defined below) may use the Software (including any
Client Configurations) (i) only for the management of the library and for servicing its patrons (including permitting
Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or
similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other
terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws
regarding the transmission of data, including, without limitation, any applicable export control and data protection
laws; and (ii) not use the Software for illegal purposes.
C. Subject to Section 11 (Client Configurations), other than Innovative, no one is permitted to copy, modify,
reverse engineer, decompile, or disassemble the Software, create derivative works thereof, or separate the
Software into its component files. All rights to the Software that are granted to Client in this Agreement are limited
to the object code versions of the Software and in no event will Client be deemed to have any right, title or interest
in the source code of the Software.
d. The Software may be used by the base number of Client's worldwide employees, third -party auditors,
agents and contractors ("Authorized Users") set forth in the Pricing Exhibit to the License Agreement for such
Software and such additional Authorized Users as may be hereafter identified to Innovative by Client for which
Client pays the additional Fees referred to in Section 4(a) of this Agreement. Each Authorized User license is
allocable to a single full-time user of the Software and may be transferred to another user only on a full-time basis.
Authorized User license(s) may not be shared on a part time or concurrent user basis. For the avoidance of doubt,
Client patrons do not fall within the restrictions of Authorized Users.
e. The license granted to Client pursuant to this Agreement will include, at no additional cost, a license to use
all new scheduled major releases, service pack releases, and hot fixes of the Software offered generally by
Innovative to its clients during the term of this Agreement (collectively, "New Releases"). "New Releases" do not
include new or additional modules, applications or other software now or hereafter offered by Innovative, each of
which require a separate license and payment of additional license fees. The term "Software" will be deemed to
include New Releases. Except to the extent that Client purchases Innovative's hosting service, additional fees at
Innovative's then -prevailing professional service rates will apply for implementation of New Releases.
f. Innovative offers support for the Software in accordance with the Support Terms, the terms of which are
incorporated by reference herein.
g. The license granted hereunder grants Client the right to use a single production instance (copy) of the
Software and up to two (2) additional instances (copies) of the Software for non -production use at no additional
charge. All copies of the Software are subject to the terms of this Agreement. Non -production use includes training,
development, testing, quality assurance, staging or preproduction provided that the copies of the Software are not
used in a production environment or as a backup to production. Except to the extent expressly set forth in a License
Agreement, this license grant does not provide Client with any rights to hosting services.
Page 5 of 16
Aareement No. 6421
h. If, during the Term of this Agreement, Innovative discontinues any Software, then Innovative will deliver to
Client notice to such effect no less than twelve (12) months prior to the discontinuation of such Software and Client's
annual Fees will be decreased a pro -rated amount equal to the annual line item Fees for that Software starting in
the next years' annual invoice.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the Software,
in its preconfigured, out -of -the box format, to Client (i) via the Internet, if Client has purchased hosting services from
Innovative pursuant to the Hosting Terms or (ii) by making it available to Client to download via an FTP site or other
mutually agreed upon method, if Client has not purchased hosting services from Innovative pursuant to the Hosting
Terms. Client will be deemed to have accepted that the out -of -the box Software has been delivered upon initial
download or receipt.
3. Ownership
a. All Intellectual Property Rights (defined below) in the Software and also including, without limitation, all
improvements, enhancements, modifications, Client -specific upgrades, or updates to the Software, developed by
either party, solely or jointly (collectively, "Innovative Products"), will remain the exclusive, sole and absolute
property of Innovative or the third parties from whom Innovative has obtained the right to use the Innovative
Products. Intellectual property created by Innovative pursuant to this Agreement, or any other party at the request
or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any and all intellectual
property rights existing from time to time under any law or regulation, including without limitation, patent law,
copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair
competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all
applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect
worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it provides
to Innovative regarding the Software or other products commercialized by Innovative now or in the future. This
Agreement does not convey to the Client any interest in or to the Innovative Products or any associated Intellectual
Property Rights, but only a limited right to use the Software to the extent set forth in this Agreement, which right is
terminable in accordance with the terms of this Agreement and is otherwise subject to the limitations, restrictions,
and requirements contained herein. If Client configures or otherwise modifies the Software using an API licensed
hereunder, Client will also have a license to use such configurations or modifications as part of the Software on the
terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by Innovative.
b. For purpose of this Agreement, as between Innovative and Client, any Intellectual Property Rights in the
Innovative Products to the extent owned by any third party will be and remain the exclusive property of such third
party. The Software may include third -party software and products, which are described in the documentation and/or
Specifications made available to Client by Innovative, and any third -party pass -through terms relating to such third -
party software and products are identified therein (or by other mode of disclosure).
C. Except as expressly stated herein, Client will exclusively have and retain all right, title and interest, including
all associated Intellectual Property Rights, in and to data that Client enters into the Software or disclosed by Client
to Innovative in its performance hereunder ("Client Data"), and, as between Client and Innovative, such Client Data
will remain the sole property of Client. Client hereby grants to Innovative a license to use Client Data (i) to process
the Client Data pursuant to Client's business requirements, (ii) for maintenance and support of the Software, (iii) to
collect and use aggregate, non -identifying and anonymized data, and (iv) for research and development purposes.
Client acknowledges and agrees that it will have no rights in any products or services created or sold by Innovative
or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of the preceding sentence. To the
extent that applicable law requires any permissions or authorizations to have been obtained prior to submission of
Client Data to Innovative (including without limitation from individuals to whom the data pertains), Client warrants
and covenants that it (and its Authorized Users, as applicable) will have first obtained the same permissions or
authorizations prior to transmitting such data to Innovative. Client will defend, indemnify and hold harmless
Innovative in the event of any third -party claim arising from a breach of the aforesaid warranty and covenant.
4. Fees; Expenses; Payment Terms.
a. In consideration of receiving a limited license to use the Software, Client will pay the fees set forth in the
Pricing Exhibit to the License Agreement (the "Fees") on the terms set forth therein. Initial invoicing under this
Agreement will occur when the Software is initially delivered to Client per Section 2; subsequent renewal invoices
will be sent to Client prior to the date such payment is due. Invoices for any Renewal Terms may be provided to
Page 6 of 16
reement No. b411
Client up to 90 days prior to the effective date of such Renewal Term. Client will notify Innovative in writing if Client
hereafter requires additional Authorized Users or additional Software modules, and will pay the fees for such
additional Authorized Users or additional Software modules in accordance with the terms set forth on the invoice
for such fees. The Software may, from time to time, electronically transmit to Innovative reports verifying the type
and number of Authorized Users, and Innovative may utilize license keys or other reasonable controls to enforce
Authorized User license limitations. Client will cooperate with Innovative in all such efforts.
b. Fees for additional Third -Party Software, hardware and services are subject to change and will be quoted
at the then current rate.
C. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the
delivery and license of the Software, all of which Client will be responsible for and will pay in full, other than taxes
based on Innovative's net income. Client will provide Innovative its state issued Direct Pay Exemption Certificate
(or equivalent certificate), if applicable, upon execution of this Agreement. In the event an applicable taxing
authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold under this
Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional taxes
and all costs associated with such assessment, including without limitation, interest, penalties and attorney's fees.
Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold or
deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased
by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no
withholdings or deductions been made.
d. Where this Agreement establishes a due date for a payment and/or a recurring method for payment,
payment will be due and payable on such due date and/or according to the method specified. Other fees or
expenses charged pursuant to this Agreement will be paid at the amounts set forth in the invoice within 30 (thirty)
days of the date of the invoice. All amounts stated herein and all Fees determined hereunder are in U.S. Dollars,
unless otherwise required by applicable law.
e. Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate
permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement and to grant Client the license to
the Software hereunder; and
ii. The Software will conform in all material respects to the applicable technical documentation for the
Software provided to Client by Innovative and expressly identified by Innovative as the specifications for
the Software (collectively, the "Specifications").
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES
EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR
CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW,
INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL
WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER
ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY,
THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL
SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT -
FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL
BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE,
INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
Page 7 of 16
Aareement No. 6421
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING
ALL CONTENT GENERATED THROUGH USE THEREOF.
C. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5, for any error
or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair the
Software, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid Fees for the
Software, prorated for the period commencing on the date the error or defect was reported by Client to Innovative
and continuing throughout the balance of the period to which such Fees apply. None of the above warranties or
remedies in this Section 5 will apply with respect to any Software that has been damaged or modified by any party
other than Innovative, or used in a manner for which the Software is not designed or intended.
6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
7. Indemnification.
a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Software,
as delivered to Client by Innovative, directly infringes such third party's U.S. copyright or U.S. patent, Innovative will
defend Client against such legal action, provided that Client promptly notifies Innovative in writing of the legal action
and fully cooperates with Innovative in the defense of such legal action. Innovative will also indemnify Client from
all damages and out-of-pocket costs (including reasonable attorneys' fees) finally awarded by a court of competent
jurisdiction in connection with any such legal action, or agreed to by Innovative in a settlement. Innovative will control
all aspects of the defense and conduct the defense and any settlement negotiations in any such third -party legal
action. This indemnification is limited to the Software in the form delivered to Client and does not cover claims
arising from (x) modifications thereto not made by Innovative, or, even if by Innovative, at the request of Client; (y)
use of the Software in combination with other software or items not provided by Innovative, or (z) third party
modifications (including addition of source code) to the Software.
b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the
Software by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue to use the
Software, (ii) modify the Software to remove the cause of the legal action, (iii) replace the Software at no additional
charge to Client with a substantially similar, non -infringing product, which will then be subject to the provisions of
this Agreement, or (iv) terminate this Agreement and refund to Client that portion of the Fees allocable to the
infringing component of the Software, prorated for the period Client's use of the Software is enjoined. None of the
above warranties or remedies will apply with respect to any element of the Software that has been modified by any
party other than Innovative, or used in a manner for which the Software is not designed or intended. This Section
states Innovative's entire liability and Client's exclusive remedies for infringement of intellectual property rights of
any kind.
8. Confidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications
and other information pertaining to the Software, and/or Innovative's business interests or activities, product pricing,
financial information, methods of operation or customers that are disclosed by any party to Client in the course of
performing this Agreement or any ensuing business arrangement are the confidential and proprietary information
of Innovative. Innovative acknowledges that Client Data and other proprietary Client materials are the confidential
information of Client. The information and materials described in the preceding sentences is referred to herein as
"Confidential Information." Notwithstanding the foregoing, the term "Confidential Information" does not include
Page 8of16
information pertaining to a party if (i) such information is generally known to the public through no improper action
or inaction by the other party, (ii) was, through no improper action or inaction by the other party, in the possession
of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party by a third party if such
disclosure does not violate the terms of any confidentiality agreement or other restriction by which such third party
may be bound.
b. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than
as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent
the unauthorized use of any such Confidential Information by any third party within such party's control. Each party
may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access
to such Confidential Information for the purposes of performing this Agreement or using the Software, provided
each party hereto notifies its employees and contractors accessing such Confidential Information of the
confidentiality obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court,
statute, or other governmental body ("Order"), in which event, the disclosing party must use reasonable efforts to
provide the other party with prior notice of such Order, to the extent legally permitted to do so and in accordance
with the Order. Under no circumstances will Confidential Information received from Innovative be disclosed to any
competitor of Innovative without Innovative's advance written permission.
C. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the
party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies
may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to
petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any
unauthorized use or disclosure of such Confidential Information.
d. If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information
exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement
be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms
hereof.
9. Term; Termination.
a. The term of the Agreement is set forth in the Pricing Exhibit to the License Agreement.
b. If either party hereto fails to perform or comply with any material term or condition of this Agreement,
specifically including Client's failure to pay any Fees (such party being the "Breaching Party"), and such failure
continues unremedied for 30 (thirty) days after receipt of written notice, the other party may terminate this
Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to remedy such
failure and such remedy cannot reasonably be completed within such 30-day period, then the Breaching Party will
have an additional 30 (thirty) days to complete such remedy, after which period the other party may terminate this
Agreement if such failure continues unremedied.
C. Client may terminate this Agreement at any time during the Initial Term effective as of the date of the next
annual anniversary of the Effective Date if Client's budget (funding) is eliminated and Client provides written
evidence to Innovative of the elimination of Client's budget (funding), such evidence to be in the form and substance
reasonably requested by Innovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this
Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be
responsible for all Fees and expenses for the Software provided prior to and as of the date of termination. Any
termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the
terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and
duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance
herewith, and the obligations of the parties pursuant to Section 1.c. (Software License), Section 3 (Ownership),
Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7 (Indemnification),
Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client Configurations) and Section 13
(General). Within 30 (thirty) days of receipt of a written request following a termination of this Agreement, each party
must return or destroy all Confidential Information of the other party, as requested in writing by the other party.
Notwithstanding the foregoing, a party will not be obligated to destroy data containing Confidential Information of
the other party when it would be commercially impracticable for the receiving party to do so (for example, when
Page 9 of 16
reement No. 641
Confidential Information is contained in e-mail stored on backup tapes or other archival media), but for so long as
such receiving party is in possession of such Confidential Information of the other party, the terms of Section 8
(Confidentiality) hereof will continue to restrict the receiving party's use or disclosure of such Confidential
Information. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance
with its terms.
e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts
of its programming, data model, or any other information regarding which Innovative claims a proprietary or
Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection
with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a
commercially -standard format to be agreed upon by the Parties), such service will be performed pursuant to a
written statement of work under a separate professional services agreement and paid for by Client, applying
Innovative's then -current rates for daily/hourly work, as the case may be.
10. Third Party Software. The Software may contain third -party and/or "open source" code provided under
third -party license agreements. The terms and conditions of such third -party license agreements will apply to such
source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of
certain third -party and/or open source code contained in the Software, the respective license terms applicable to
such code, and certain related notices are included in the documentation and/or Specifications made available to
Client by Innovative. Except as required for the authorized use of the Software as contemplated herein, Client may
not use any name or trademark of any supplier of third party or open source code without such party's prior written
authorization.
11. Client Configurations. Client will be permitted to use one or more application programming interfaces
(APIs) made available by Innovative to configure the Software hereunder in accordance with the Specifications
(such configurations or other modifications, "Client Configurations"). Client will not use any other API to modify or
configure the Software. No API may be used to create any Client Configuration that, in whole or in part, mimics any
material functionality of any software or service developed or marketed by Innovative or that would reasonably be
deemed competitive to any software or service developed or marketed by Innovative if the Client Configuration were
to be released to the public market. Innovative disclaims all representations and warranties, express or implied,
regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. Client
agrees to indemnify and hold harmless Innovative from all damages and out-of-pocket costs (including reasonable
attorney fees) for any third -party action based on a claim that any Client Configuration infringes a copyright or a
patent, or constitutes an unlawful disclosure, use or misappropriation of another party's trade secrets.
12. Back -Up Activities. Except to the extent that Client purchases Innovative's hosting service or back-up
services, Client has the sole responsibility for the maintenance and protection of all data input into the Software,
including, without limitation, the making, storing and security of back-up and archive copies of such data and the
Software (collectively "Back -Up Activities"), and Client acknowledges Innovative will not perform any Back -Up
Activities for or on behalf of Client.
13. Data Privacy. Innovative follows industry standard privacy practices, available at
https-://www.1ii,com/services-pirilvegy-policy/.
14. Security. Innovative holds the internationally -recognized ISO 27001:2013 standard for its information
security management system. Security and compliance is a shared responsibility between Innovative and the Client.
Innovative operates, manages and controls the components from the host operating system layer to the networking
layer, if Hosting is identified in the Pricing Exhibit. All physical security is managed by Innovative's hosting partner.
The Client assumes shared responsibility and management of the Software. Client should take into consideration
the Client Configurations and any third -party application they choose and their responsibility depending on any
applicable laws and regulations. Innovative takes reasonable and appropriate administrative, technical and physical
measures to protect the confidentiality, integrity and availability of Client's sensitive information.
15. General,
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the
other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of future breaches.
Page 10 of 16
reement No. 6411
b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and
that Client's relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative
personnel will be entitled to participate in any compensation or benefits plan of Client.
C. Force Ma cure. Neither party will be liable or responsible for any delay or failure in performance if such
delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo,
government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions
of carriers, third -party local exchange and long distance carriers, utilities, Internet service providers, transmitters,
vandals, or hackers, or any other similar causes that may be beyond its control (a "Force Majeure Event").
d. Notice. Any notice or communication required to be given by either party must be in writing and made by
hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such
communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set
forth on the first page of the License Agreement. All communications pursuant to this Section will be deemed
delivered as follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service;
or (b) when electronically confirmed, if delivered by facsimile.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will,
as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or
similar format for scanned copies of documents) or facsimile signature, each of which when so executed and
delivered will be deemed an original, but all such counterparts will together constitute but one and the same
instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or
other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue
public statements pertaining to the existence of the business relationship between Innovative and Client, including
the right to limited use of Client's name, logo and other reasonable non -confidential information in press releases,
web pages, advertisements, and other marketing materials.
h. Assignment.Neither party has the power to assign, license, or sub -license any of its rights or obligations
hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any
assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing, a
party may assign this Agreement without the other party's consent (i) as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party
provided that any such assignment will not release the assigning party from its obligations under this Agreement.
i. Waiver of J'u Trial Governing Language. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the
English language; any translation of this Agreement into another language will be for convenience only but will not
modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all
prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish
or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that
they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have
included in this Agreement all terms material to the parties' rights and obligations with respect to the subject matter
hereof and intend this document to be the final expression of their contractual intent. The parties further represent
and acknowledge that communications exchanged between the parties during contract negotiation (including,
without limitation, requests for proposal ("RFPs") and Innovative's responses to such RFPs; questionnaires and
responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such
documents submitted by Client will be for Client's internal administrative purposes only and the terms and conditions
contained in any such purchase order, work order or other such document will have no force or effect and will not
amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, a License
Page 11 of 16
reem
Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. License Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or
referenced by the Agreement.
Page 12 of 16
reement No.
Exhibit C
Innovative Interfaces Incorporated
Maintenance and Support
Terms and Conditions
These Maintenance and Support Terms and Conditions ("Support Terms") apply to the License Agreement.
Unless otherwise specified, capitalized terms in these Support Terms have the same meaning as those in the GTCs.
The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Maintenance and Support. Innovative will offer maintenance and support on the terms set forth herein
("Maintenance and Support") for the latest generally available version of the Software and for certain earlier versions
in accordance with Innovative's support policy. Standard Maintenance and Support is included with the price for the
annual license set forth in the License Agreement.
2. Error Response. Error descriptions (each an "Error"), the Error severity levels and corresponding targeted
response time per level are each described in the table below. The Targeted Response Times in the table below
identify the response times that Innovative will target for the corresponding Error, however, such Targeted
Response Times are not guaranteed.
Severity
Description
Target
Response Time
One - Site Down
A major component of the software is in a non -responsive state
1 hour
and severely affects library productivity or operations. A high
impact problem that affects the entire library system. Widespread
s stem availability, production system is down
Two — Critical
Any component failure or loss of functionality not covered in
2 hours
Severity 1 that is hindering operations, such as, but not limited to:
excessively slow response time, functionality degradation; error
messages; backup problems; or issues affecting the use of the
module or the data
Three - High
Lesser issues, questions, or items that minimally impact the work
2 business days;
flow or require a work around
excludes
holidays and
weekends
Four — Routine
Issues, questions, or items that don't impact the work flow. Issues
4 business days;
that can easily be scheduled such as an upgrade or patch
excludes
holidays and
weekends
3. Error Reporting and Diagnosis
a. Client must designate a representative as the contact that will report Errors to Innovative and be
Innovative's primary contact for the provision of Maintenance and Support pursuant to the terms of this Agreement
(such representative is referred to herein as the "Client Contact"). When a Client Contact reports an Error, Innovative
will use commercially reasonable efforts to diagnose the root cause of the Error ("Diagnosis"). Upon completing the
Diagnosis, each Error will be classified as either a "Warranty Error" or a "Non -Warranty Error' pursuant to Section
3.b. below. Innovative will use commercially reasonable efforts to diagnose and repair both Warranty and Non -
Warranty Errors as described below.
b. "Warranty Errors" are all Errors that do not qualify as Non -Warranty Errors. "Non -Warranty Errors"
are Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Software;
(ii) operator error; (iii) incorrect data entry by Client; (iv) third -party software not part of the Software; (v) errors
and/or limitations attributable to Client environment; (vi) Client's failure to incorporate any New Release previously
provided to it by Innovative which corrects such Error; (vii) modification of the Software performed by Client; and
(viii) technical consulting services provided by Innovative at Client's request (e.g., change orders, integration
development, or configuration design and implementation), unless Client notifies Innovative of such technical
Page 13 of 16
reement No. 6421
consulting services problem within the applicable warranty period set forth in the governing statement of work,
change order or agreement. Client acknowledges that the Software is intended for use only with the software and
hardware described in the Specifications provided by Innovative from time to time, and Client will be solely
responsible for its adherence thereto.
C. If the Client is hosting their Software, the Client must provide direct network internet access to the
Software, including any firewalls. Innovative requires such access to correct Software bugs and carry out
modifications of the Software for the purpose of maintaining the Software.
4. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to
Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if
Client has purchased and is current on its payment for Maintenance and Support; however, Innovative may charge
Client for such effort with respect to Non -Warranty Errors according to the following process: (i) When the Client
Contact reports any Error, prior to commencing the Diagnosis for the Error, Innovative will notify the Client Contact
that the Diagnosis and repair effort will be at no charge to Client unless the reported Error is determined to be a
Non -Warranty Error, in which case only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will
then commence the Diagnosis unless instructed otherwise by the Client Contact. If more than two hours are required
for the Diagnosis of Non -Warranty Errors, then such additional Diagnosis hours will be charged to Client at
Innovative's then -current rate for technical services. Once the Diagnosis is complete, the Client Contact will be
given the option of having Innovative proceed with repairing the Non -Warranty Error, and, if so requested, Innovative
will provide an estimate of the total cost for such effort. If agreed to by the Client Contact, Innovative will undertake
to repair the Non -Warranty Error and charge Client for the associated technical services performed.
5. Ticket Management and Escalation. Innovative manages all reported issues using a ticket management
system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported
online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative
representatives pursuant to Innovative's escalation policy made available on Innovative's Internet portal.
Page 14 of 16
reement No. 6411
Exhibit D
Innovative Interfaces Incorporated
Hosting Services
Terms and Conditions
These Hosting Services Terms and Conditions ("Hosting Terms") apply to the License Agreement if, and
only to the extent that, Hosting Services are identified on the Pricing Exhibit to the License Agreement as a
purchased service. Unless otherwise specified, capitalized terms in these Hosting Terms have the same meaning
as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the GTCs.
1. Hosting Services. The following terms apply for all purposes to Client's license to and use of the
Software under the Agreement.
2. Hosting Solution. Innovative offers clients a standard cloud -based hosting option (the "Standard Plan").
The table below sets forth the features of the Standard Plan. This option provides industry -leading security and
monitoring at a SOC 1/SOC 2 Type 2/ISO 27001-audited datacenter by a top -tier cloud hosting provider (the
"Hosting Provider"), with the flexibility to meet clients' data storage, data recovery, and information security policy
requirements. To meet clients' global hosting needs, Innovative offers hosting options in datacenters located in
the United States, Canada, United Kingdom, Ireland, Australia and the Asia -Pacific region, however, Innovative
reserves the right to increase, decrease and/or relocate its datacenters at anytime.
_..............
Feature
24x7 infrastructure monitoring
Standard
✓
Dedicated production environment
✓
99.9% guaranteed infrastructure uptime**
✓
................. _ _...
Dedicated public IP address and custom URL
Operating system installation and management
✓
✓
Library software installation and upgrades
✓
Data backups
Daily
Archive data backup retention
30 days
3. Hosting Solution System Configuration. The hosting systems are configured to meet the solution
requirements as per the Hosting Terms set forth on the Pricing Exhibit to the License Agreement.
4. Security Controls.
a. Generally, Subject to the terms of the Agreement, Innovative implements industry -recognized
best practices to prevent the unintended or malicious loss, destruction or alteration of Client's data resident in the
Software.
b. Network Systems Audit Logging. All firewall logon activity and password changes are logged,
monitored, controlled and audited. All intrusion detection and firewall log monitoring is done through services
provided by Innovative and those pertinent log files and configuration files are retained for ninety (90) days and
can be made available upon request for audit and problem resolution, as may be required.
C. Network, Monitoring. All network systems and servers are monitored 24/7/365. Innovative will
monitor its systems for security breaches, violations and suspicious (questionable) activity. This includes
suspicious external activity (including, without limitation, unauthorized probes, scans or break-in attempts) and
suspicious internal activity (including, without limitation, unauthorized system administrator access, unauthorized
changes to its system or network, system or network misuse or program information theft or mishandling).
Innovative will notify Client as soon as reasonably possible of any known security breaches or suspicious
activities involving Client's production data or environment, including, without limitation, unauthorized access and
service attacks, e.g., denial of service attacks.
Page 15 of 16
reement No. 6411
d. Audit and Security Testing. Hosting Providers perform regular security audits and testing. Client's
may not perform own audits of hosting providers.
e. Information Security,Auditin /Com lianee. Innovative's hosting providers undergo SOC 1/SOC 2
Type 2/ISO 27001 audits each year by independent third -party audit firms.
If. "The 99.9% guaranteed infrastructure uptime is subject to the following Service Level Agreement
(SLA):
L Hours of operation/exclusive remedy for service unavailabilit Innovative offers a
monthly infrastructure uptime target of 99.9% of Scheduled Up -Time to Client. Scheduled Up -Time means all of
the time in a month that is not Scheduled Downtime or Third Party Unavailability. In the event that Innovative fails
to provide Client with 99.9% infrastructure uptime for three consecutive months, Client will be entitled to receive a
credit equal to the prorated amount of the Fees for the period in which Innovative failed to provide such
infrastructure uptime during such months upon receipt of written notice from Client. The remedies set forth in this
Paragraph (i) are the exclusive remedies of the Client for Innovative's failure to provide Client with 99.9%
infrastructure uptime.
ii. Scheduled Downtime; Scheduled Downtime means the period of time which Innovative or
the Hosting Provider, conduct periodic scheduled system maintenance and release updates for which Innovative
will provide the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client
notice of scheduled system maintenance 48 hours in advance and notice of release updates three weeks in
advance.
Page 16 of 16
reement No. 6421
EXHIBIT C
INNOVATIVE INTERFACES INCORPORATED
SOFTWARE -AS -A -SERVICE 'SAAS) SUBSCRIPTION AGREEMENT
This Software -as -a -Service (SaaS) Subscription Agreement ("SaaS Agreement") is entered into by and
between Innovative Interfaces Incorporated, a California corporation ("Innovative"), and the party identified as Client
below ("Client"), as of the "Effective Date" also set forth below.
Client
City of El Segundo
Address
111 W. Mariposa Ave.
El Segundo, CA 90245
Customer No.
Effective Date
#August
2Initial
Term
1. Definitions.
"Go -Live Date" means the date of Client's first access to the Application Services.
"GTCs" means the Innovative Interfaces Incorporated SaaS Agreement General Terms and Conditions in
Exhibit B.
"SLAs" means the Innovative Interfaces Incorporated Service Level Agreements in Exhibit C.
"Security Terms" means the Innovative Interfaces Incorporated Information Security Terms and Conditions in
Exhibit D.
2. General. Innovative and Client agree that this SaaS Agreement is a binding agreement between the parties
and is governed by the GTCs, SLAs, and the Security Terms, all of which are made a part hereof. This SaaS
Agreement, the GTCs, SLAs, Security Terms, and all other exhibits, schedules and terms and conditions referenced
by or in this SaaS Agreement, the GTCs, SLAs or Security Terms together constitute the "Agreement." Client
acknowledges and agrees that it has had the opportunity to review the Agreement, including without limitation, the
GTCs, SLAs and Security Terms, prior to the execution of this Agreement. Unless otherwise specified, capitalized
terms in this Agreement have the same meaning as those in the GTCs. This Agreement is governed by and
interpreted in accordance with the internal substantive laws of the State of New York, without regard to any other
laws that would require the application of the laws of another jurisdiction. Application of the U.N. Convention on
Contracts for the International Sale of Goods is hereby excluded.
EXHIBITS TO SAAS AGREEMENT
A PRICING EXHIBIT
B GENERAL TERMS AND CONDITIONS
C SERVICE LEVEL AGREEMENTS
D INFORMATION SECURITY TERMS AND CONDITIONS
Page 1 of 16
reement No. 6411
In witness whereof, the parties have executed this Agreement by their duly authorized representatives as
of the Effective Date.
Client
Innovative
City of Ell Segundo
Innovativ t rfacee Incorporated
B
B
Name:
Name:
Jeff Anusbigian
Title:
Title:
VP Commercial Operations
.........................
........
Date:
Date:
September 28, 2022
Page 2 of 16
reement No. 6411
Exhibit A
Pricing Exhibit
[APPROVED APPLICATION SERVICES QUOTE FOLLOWS THIS PAGE]
Page 3 of 16
Agreement No. 6421
tit innovative
Pricing Exhibit
Part of Clarita
Date 8/2/2022
Quote # EST-INC15257
Innovative Interfaces Incorporated
1900 Powell St.
Payment Terms Net30
Suite 400
Overall Contract Term (Months) 60
Emeryville CA 94608
Contract Start Date
United States
Contract End Date
Sales Rep Tom McNamara
Site Code elseg
Expires 9/30/2022
Bill To
Ship To
El Segundo Public Library
El Segundo Public Library
111 W. Mariposa Ave.
111 W. Mariposa Ave.
El Segundo CA 90245
El Segundo CA 90245
United States
United States
Currency
US Dollar
,.
Vega Discover+
,,,
1 Advanced discovery offering for
�i
10,123.00 j
patrons to uncover content and
explore new titles and resources Key
J
capabilities include interconnected
search„ context engine (linked data
model)„ roll -ups, showcases, spepial
pages and aocessibility. S,yndetics
�,
Unbound subscription included plus
r
Vega Guide with in -product tours,
guides, announcement and surveys
Vega Connect LX 1
1 Vega Connect extends the ILS
0.00 i
Starter
i capabil[ties and creates a brddgr from
,tr ILS to Vega, Innovative`s new and
m rdern suite of library experience
solutions. It includes a foundational set
of engagement capabilities via email,
including notices & starter sat of
I
service journeys.
I
I
First Year Total US$10,123.00
Page 4 of 16
Exhibit B
Innovative Interfaces Incorporated
SaaS Agreement General Terms and Conditions
Unless otherwise specified, capitalized terms in these GTCs have the same meaning as those in the SaaS
Agreement.
Access to and Use of the Application Services.
a. Subject to the terms and conditions of this Agreement, including without limitation Client's payment of all of
the Fees (defined below) due hereunder, Innovative will provide Client and its Authorized Users (defined below)
with subscription access and certain subscription services via an Innovative website or websites to its Integrated
Library System solution known as "Vega" or the "Platform," including features identified as "SaaS" in the Pricing
Exhibit (collectively, the "Application Services"). Such Application Services will be for the duration of the Term of
this Agreement and will automatically expire upon the termination or expiration of this Agreement or as otherwise
specified in this Agreement.
b. Client and, where applicable, its Authorized Users may access and use the Platform (including any Client
Configurations) (i) only for the management of the library and for servicing its patrons (including permitting
Authorized Users to search library catalogues), and not on an outsourced basis, as a service bureau, for resale, or
similarly on behalf of or for the direct or indirect benefit of third parties, and (ii) only in accordance with the other
terms of this Agreement. Client will be responsible for its Authorized Users' compliance with the terms hereof.
Without limiting the foregoing, Client agrees that it and its Authorized Users will: (i) comply with all applicable laws
regarding the transmission of data, including, without limitation, any applicable export control and data protection
laws; and (ii) not use the Application Services for illegal purposes.
C. The Application Services may be used by the base number of Client's worldwide employees, third -party
auditors, agents and contractors ("Authorized Users") set forth in the Pricing Exhibit for such Application Services
and such additional Authorized Users as may be hereafter identified to Innovative by Client for which Client pays
the additional Fees referred to in Section 4(a) of this Agreement, provided that all such Authorized Users shall
assent to the on-line account verification terms on the Platform. An Authorized User is a single user of the
Application Services and their right to use the Platform may be transferred to another individual user. Such rights
may not be shared on a part time or concurrent user basis. For the avoidance of doubt, Client patrons do not fall
within the definition of Authorized Users. Client agrees that it and its Authorized Users will:
i. Not interfere with or disrupt the servers or networks used to provide the Application Services;
ii. Not transmit through the Platform junk mail, spam, chain letters, or unsolicited mass distribution of files;
iii. Not transmit viruses or otherwise malicious code or data;
iv. Not attempt to copy, modify, make derivative works of, reverse engineer, disassemble or decompile the
Platform or any Innovative system, network or software;
v. Comply with all applicable laws regarding the transmission of data, including, without limitation, any
applicable export control and data protection laws; and
vi. Not use the Application Services for illegal purposes.
d. Innovative includes in the Fees rights to access and use all new scheduled major releases, service pack
releases, and hot fixes of the Platform offered generally by Innovative to its clients during the term of this Agreement
(collectively, "New Releases"). "New Releases" do not include new or additional modules, applications or other
software now or hereafter offered by Innovative, each of which require payment of additional fees. The term
"Application Services" will be deemed to include New Releases.
e. Innovative offers support for the Application Services in accordance with the SLAs, the terms of which are
incorporated by reference herein.
2. Acceptance. Following the execution of the Agreement by the parties, Innovative will deliver the login
credentials for the Client's network administrator for the Client's instance of the Platform, in its preconfigured format.
Client will be deemed to have accepted that the provisioned Platform has been delivered upon receipt of credentials.
Ownership.
a. Intellectual Property Right . All Intellectual Property Rights (defined below) in the Platform and also
including, without limitation, all improvements, enhancements, modifications, Client -specific upgrades, or updates
to the Platform, developed by either party, solely or jointly (collectively, "Innovative Products"), will remain the
Page 5 of 16
reement No. b411
exclusive, sole and absolute property of Innovative or the third parties from whom Innovative has obtained the right
to use the Innovative Products. Intellectual property created by Innovative pursuant to this Agreement, or any other
party at the request or direction of Innovative, will be owned by Innovative. "Intellectual Property Rights" means any
and all intellectual property rights existing from time to time under any law or regulation, including without limitation,
patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law,
unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any
and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and
effect worldwide. Client hereby assigns to Innovative all right, title and interest in any feedback and suggestions it
provides to Innovative regarding the Platform, Application Services or other products commercialized by Innovative
now or in the future. This Agreement does not convey to the Client any interest in or to the Innovative Products or
any associated Intellectual Property Rights, but only a limited right to use the Platform and Application Services to
the extent set forth in this Agreement, which right is terminable in accordance with the terms of this Agreement and
is otherwise subject to the limitations, restrictions, and requirements contained herein. If Client configures the
Platform using an API hereunder, Client will also have a right to use such configurations as part of the Platform on
the terms set forth in Section 1. Rights not expressly granted to the Client are hereby expressly reserved by
Innovative.
b. Third -Party _Proprietary Fights. For purpose of this Agreement, as between Innovative and Client, any
Intellectual Property Rights in the Innovative Products to the extent owned by any third party will be and remain the
exclusive property of such third party. The Platform may include third -party software and products, which are
described in the documentation and/or Specifications made available to Client by Innovative, and any third -party
pass -through terms relating to such third -party software and products are identified therein (or by other mode of
disclosure).
C. Client Data. Except as expressly stated herein, Client will exclusively have and retain all right, title and
interest, including all associated Intellectual Property Rights, in and to data that Client enters into the Platform or
disclosed by Client to Innovative in its performance hereunder ("Client Data"), and, as between Client and
Innovative, such Client Data will remain the sole property of Client. Client hereby grants to Innovative a license to
use Client Data (i) to process the Client Data pursuant to Client's business requirements, (ii) for maintenance and
support of the Platform, (iii) to collect and use aggregate, non -identifying and anonymized data, and (iv) for research
and development purposes. Client acknowledges and agrees that it will have no rights in any products or services
created or sold by Innovative or its affiliates that use any of the Client Data in the manner set forth in (iii) or (iv) of
the preceding sentence. To the extent that applicable law requires any permissions or authorizations to have been
obtained prior to submission of Client Data to Innovative (including without limitation from individuals to whom the
data pertains), Client warrants and covenants that it (and its Authorized Users, as applicable) will have first obtained
the same permissions or authorizations prior to transmitting such data to Innovative. Client will defend, indemnify
and hold harmless Innovative in the event of any third -party claim arising from a breach of the aforesaid warranty
and covenant.
4. Fees; Expenses; Payment Terms.
a. In consideration of receiving a limited right to access and use the Application Services, Client will pay the
fees set forth in the Pricing Exhibit (the "Fees") on the terms set forth therein. Initial invoicing under this Agreement
will occur when the Platform is initially delivered to Client per Section 2; subsequent renewal invoices will be sent
to Client prior to the date such payment is due. During the Initial Term, Innovative will have the right to increase
rates hereunder by up to 3.5% over the previous year, and by 5% thereafter. Innovative will have the right to revise
Fees based on population, as set forth in the Pricing Exhibit, after the Initial Term and periodically thereafter, but
no more than once annually. Invoices for any Renewal Terms may be provided to Client up to 90 days prior to the
effective date of such Renewal Term. Client will notify Innovative in writing if Client hereafter requires additional
Authorized Users or additional Platform features and will pay the fees for such additional Authorized Users or
additional features in accordance with the terms set forth on the invoice for such fees. The Platform may, from time
to time, electronically transmit to Innovative reports verifying the type and number of Authorized Users, and
Innovative may utilize access keys or other reasonable controls to enforce Authorized User limitations. Client will
cooperate with Innovative in all such efforts.
b. All Fees must be paid to Innovative within 30 days from the invoice date or as stated on the invoice if
different.
C. Fees for additional third -party product, hardware and services are subject to change and will be quoted at
the then current rate.
Page 6 of 16
reement No. 6411
d. All Fees are exclusive of all taxes and similar fees now in force or enacted in the future or imposed on the
delivery and access and use of the Application Services, all of which Client will be responsible for and will pay in
full, other than taxes based on Innovative's net income. Client will provide Innovative its state issued Direct Pay
Exemption Certificate (or equivalent certificate), if applicable, upon execution of this Agreement. In the event an
applicable taxing authority, as a result of an audit or otherwise, assesses additional taxes for goods or services sold
under this Agreement at any time, Client and not Innovative will be solely responsible for payment of such additional
taxes and all costs associated with such assessment, including without limitation, interest, penalties and attorney's
fees. Additionally, should Client be required under any applicable law or regulation, domestic or foreign, to withhold
or deduct any portion of the payments due to Innovative hereunder, then the sum due to Innovative will be increased
by the amount necessary to yield to Innovative an amount equal to the sum Innovative would have received had no
withholdings or deductions been made. Where this Agreement establishes a due date for a payment and/or a
recurring method for payment, payment will be due and payable on such due date and/or according to the method
specified. Other fees or expenses charged pursuant to this Agreement will be paid at the amounts set forth in the
invoice within 30 (thirty) days of the date of the invoice. All amounts stated herein and all Fees determined hereunder
are in U.S. Dollars, unless otherwise required by applicable law.
e. Any invoices not paid when due will accrue interest at the rate of 1% per month or the maximum rate
permitted by law, whichever is greater.
5. Limited Warranty.
a. Innovative warrants, solely for the benefit of Client, that:
i. It has the corporate power and authority to enter into this Agreement for the provision of the Application
Services;
ii. It will provide access to the Platform in accordance with the SLAs. The exclusive remedy of Client under
the limited warranty set forth in this Section 5(a)(ii) is set forth in the SLA; and
iii. The Platform will conform in all material respects to the applicable technical documentation for the
Platform provided to Client by Innovative and expressly identified by Innovative as the specifications for
the Platform (collectively, the "Specifications").
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) THE WARRANTIES
EXPRESSLY STATED ABOVE IN THIS SECTION AND (ii) ANY WARRANTY, REPRESENTATION OR
CONDITION TO THE EXTENT THE SAME CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW,
INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL
WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WHETHER
ARISING BY OR UNDER STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF PERFORMANCE OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON -INFRINGEMENT. WITHOUT LIMITING THE
FOREGOING, INNOVATIVE AND ITS LICENSORS, AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY,
THAT THE SOFTWARE OR OTHER DELIVERABLES PROVIDED BY OR ON BEHALF OF INNOVATIVE WILL
SATISFY CLIENT'S REQUIREMENTS OR THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT -
FREE OR UNINTERRUPTED OR AVAILABLE ON THE INTERNET, OR THAT ALL PRODUCT DEFECTS WILL
BE CORRECTED. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5(a), THE SOFTWARE,
INCLUDING ALL CONTENT, IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY GUARANTEES
REGARDING QUALITY, PERFORMANCE, SUITABILITY, TIMELINESS, SECURITY, DURABILITY,
INTEGRABILITY OR ACCURACY, AND CLIENT ACCEPTS THE ENTIRE RISK OF AND RESPONSIBILITY FOR
SELECTION, USE, QUALITY, PERFORMANCE, SUITABILITY AND RESULTS OF USE THEREOF, INCLUDING
ALL CONTENT GENERATED THROUGH USE THEREOF.
C. As the exclusive remedy of Client for a breach of the limited warranties set forth in Section 5(a)(iii), for any
error or other defect for which Innovative is solely responsible, Innovative will, at its option, either (i) correct or repair
the Platform, or (ii) accept termination of this Agreement and refund the unused balance of any prepaid subscription
Fees, prorated for the period commencing on the date the error or defect was reported by Client to Innovative and
continuing throughout the balance of the period to which such Fees apply. None of the above warranties or remedies
in this Section 5 will apply with respect to any element of the Application Services that has been modified by any
party other than Innovative, or used in a manner for which the Application Services is not designed or intended.
Page 7 of 16
reement No. 6411
6. LIMITATIONS ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL INNOVATIVE BE LIABLE FOR LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL,
INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER,
EVEN IF INNOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THEY WERE
OTHERWISE FORESEEABLE. INNOVATIVE'S TOTAL LIABILITY FOR TORT, CONTRACT AND OTHER
DAMAGES WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO INNOVATIVE BY CLIENT UNDER
THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH
A CLAIM IS FIRST ASSERTED AGAINST INNOVATIVE. INNOVATIVE WILL NOT BE LIABLE FOR ANY CLAIM
OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT FOR THE INDEMNIFICATION SET FORTH IN
SECTION 7. THESE LIMITATIONS OF LIABILITY WILL APPLY TO ALL CLAIMS AGAINST INNOVATIVE IN THE
AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE
WILL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
Indemnification.
a. If a third party files a legal action in a court of competent jurisdiction against Client claiming the Application
Services, as delivered to Client by Innovative, directly infringes such third party's U.S. copyright or U.S. patent,
Innovative will defend Client against such legal action, provided that Client promptly notifies Innovative in writing of
the legal action and fully cooperates with Innovative in the defense of such legal action. Innovative will also
indemnify Client from all damages and out-of-pocket costs (including reasonable attorneys' fees) finally awarded
by a court of competent jurisdiction in connection with any such legal action, or agreed to by Innovative in a
settlement. Innovative will control all aspects of the defense and conduct the defense and any settlement
negotiations in any such third -party legal action. This indemnification is limited to the Platform in the form delivered
to Client and does not cover claims arising from (x) modifications thereto not made by Innovative, or, even if by
Innovative, at the request of Client; (y) use of the Platform in combination with other software or items not provided
by Innovative, or (z) third party modifications (including addition of source code) to the Platform.
b. As the exclusive remedy of Client under the limited indemnity set forth in Section 7.a, if the use of the
Application Services by Client is enjoined, Innovative will, at its sole option: (i) obtain for Client the right to continue
to use the Application Services, (ii) modify the Application Services to remove the cause of the legal action, (iii)
replace the Application Services at no additional charge to Client with a substantially similar, non -infringing product,
which will then be subject to the provisions of this Agreement, or (iv) terminate this Agreement and refund to Client
that portion of the Fees allocable to the infringing component of the Application Services, prorated for the period
Client's use of the Application Services is enjoined. None of the above warranties or remedies will apply with respect
to any element of the Application Services that has been modified by any party other than Innovative, or used in a
manner for which the Application Services is not designed or intended. This Section states Innovative's entire
liability and Client's exclusive remedies for infringement of intellectual property rights of any kind.
8. Confidentiality.
a. Client acknowledges that all documentation, audit reports, technical information, software, Specifications
and other information pertaining to the Platform, Application Services, and/or Innovative's business interests or
activities, product pricing, financial information, methods of operation or customers that are disclosed by any party
to Client in the course of performing this Agreement or any ensuing business arrangement are the confidential and
proprietary information of Innovative. Innovative acknowledges that Client Data and other proprietary Client
materials are the confidential information of Client. The information and materials described in the preceding
sentences is referred to herein as "Confidential Information." Notwithstanding the foregoing, the term "Confidential
Information" does not include information pertaining to a party if (i) such information is generally known to the public
through no improper action or inaction by the other party, (ii) was, through no improper action or inaction by the
other party, in the possession of the other party prior to the Effective Date, or (iii) rightly disclosed to the other party
by a third party if such disclosure does not violate the terms of any confidentiality agreement or other restriction by
which such third party may be bound.
b. All Confidential Information will be held in confidence and may not be copied, used or disclosed other than
as set forth in this Agreement. Each party must take all reasonable efforts to protect the confidentiality of and prevent
the unauthorized use of any such Confidential Information by any third party within such party's control. Each party
may disclose Confidential Information (i) to the receiving party's employees and contractors required to have access
to such Confidential Information for the purposes of performing this Agreement or using the Platform, provided each
party hereto notifies its employees and contractors accessing such Confidential Information of the confidentiality
obligations in this Section 8; or (ii) if such disclosure is in response to a valid order of any court, statute, or other
governmental body ("Order'), in which event, the disclosing party must use reasonable efforts to provide the other
party with prior notice of such Order, to the extent legally permitted to do so and in accordance with the Order.
Page 8 of 16
reement No. 6421
Under no circumstances will Confidential Information received from Innovative be disclosed to any competitor of
Innovative without Innovative's advance written permission.
C. Recognizing any improper use or disclosure of any Confidential Information by either party may cause the
party whose Confidential Information is improperly used or disclosed irreparable damage for which other remedies
may be inadequate, a party whose Confidential Information is improperly used or disclosed will have the right to
petition for injunctive or other equitable relief from a court of competent jurisdiction as appropriate to prevent any
unauthorized use or disclosure of such Confidential Information.
d. If the parties have previously executed a nondisclosure agreement ("NDA"), any Confidential Information
exchanged pursuant to such NDA will remain confidential, and will as of the date of the execution of this Agreement
be deemed Confidential Information within the meaning of this Agreement and also be governed by the terms
hereof.
9. Term; Termination.
a. Term. Subject to the early termination provisions set forth below, this Agreement will be effective for an
initial term of five (5) years following the Go -Live date (the "Initial Term"). This Agreement will be automatically
renewed for additional one (1) year terms (each, a "Renewal Term" and, together with the Initial Term, the "Term"),
unless either party gives the other not less than ninety (90) days' prior written notice of its intent to terminate this
Agreement effective as of the end of the then -current Term.
b. Termination for Breach. If either party hereto fails to perform or comply with any material term or condition
of this Agreement, specifically including Client's failure to pay any Fees (such party being the "Breaching Party"),
and such failure continues unremedied for 30 (thirty) days after receipt of written notice, the other party may
terminate this Agreement. Notwithstanding the foregoing, if the Breaching Party has in good faith commenced to
remedy such failure and such remedy cannot reasonably be completed within such 30-day period, then the
Breaching Party will have an additional 30 (thirty) days to complete such remedy, after which period the other party
may terminate this Agreement if such failure continues unremedied.
C. Termination for Elimination of Budge . Client may terminate this Agreement at any time during the Initial
Term effective as of the date of the next annual anniversary of the Effective Date if Client's budget (funding) is
eliminated and Client provides written evidence to Innovative of the elimination of Client's budget (funding), such
evidence to be in the form and substance reasonably requested by Innovative.
d. Except for a termination by Client pursuant to Section 9.b., and unless as otherwise set forth in this
Agreement, upon any termination of this Agreement, all prepaid Fees will be nonrefundable and Client will be
responsible for all Fees and expenses for the Application Services provided prior to and as of the date of termination.
Any termination of this Agreement will not waive or otherwise adversely affect any other rights or remedies the
terminating party may have under the terms of this Agreement. Upon termination of this Agreement, the rights and
duties of the parties will terminate, other than the obligation of the Client to pay Fees and costs in accordance
herewith, and the obligations of the parties pursuant to Section 1.c. (Access to and Use of the Application Services),
Section 3 (Ownership), Section 4 (Fees; Expenses; Payment Terms), Section 6 (Limitations on Liability), Section 7
(Indemnification), Section 8 (Confidentiality), Sections 9.d. and 9.e. (Termination), Section 11 (Client
Configurations) and Section 12 (General). Within 30 (thirty) days of receipt of a written request following a
termination of this Agreement, each party must return or destroy all Confidential Information of the other party, as
requested in writing by the other party. Notwithstanding the foregoing, a party will not be obligated to destroy data
containing Confidential Information of the other party when it would be commercially impracticable for the receiving
party to do so (for example, when Confidential Information is contained in e-mail stored on backup tapes or other
archival media), but for so long as such receiving party is in possession of such Confidential Information of the other
party, the terms of Section 8 (Confidentiality) hereof will continue to restrict the receiving party's use or disclosure
of such Confidential Information. Neither party will be liable to the other for any termination or expiration of this
Agreement in accordance with its terms.
e. Following termination of this Agreement, Innovative has no duty whatsoever to deliver to Client any parts
of its programming, data model, or any other information regarding which Innovative claims a proprietary or
Intellectual Property Right. To the extent that Innovative is requested to perform any services for Client in connection
with the termination of this Agreement (including without limitation providing Client with a copy of Client Data in a
commercially -standard format to be agreed upon by the Parties), such service will be performed pursuant to a
written statement of work under a separate professional services agreement and paid for by Client, applying
Innovative's then -current rates for daily/hourly work, as the case may be.
Page 9 of 16
Agreement No. 6421
10. Third -Party Software. The Platform may contain third -party and/or "open source" code provided under
third -party license agreements. The terms and conditions of such third -party license agreements will apply to such
source code in lieu of these terms, where applicable, and Client is responsible for compliance therewith. A listing of
certain third -party and/or open source code contained in the Platform, the respective license terms applicable to
such code, and certain related notices are included in the documentation and/or Specifications made available to
Client by Innovative. Except as required for the authorized use of the Platform as contemplated herein, Client may
not use any name or trademark of any supplier of third party or open source code without such party's prior written
authorization.
11. Client Configurations. Client use of APIs ("Client Configuration") is subject to the terms of use available
at https://www.iii.com/api-license. Innovative disclaims all representations and warranties, express or implied,
regarding Client Configurations and assumes no liability whatsoever with respect to Client Configurations. To the
extent permitted by law, Client agrees to indemnify and hold harmless Innovative from all damages and out-of-
pocket costs (including reasonable attorney fees) for any third -party action based on a claim that any Client
Configuration infringes a copyright or a patent, or constitutes an unlawful disclosure, use or misappropriation of
another party's trade secrets.
12. General.
a. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the
other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of future breaches.
b. Independent Contractor. Client acknowledges that Innovative is at all times an independent contractor and
that Client's relationship with Innovative is not one of principal and agent nor employer and employee. No Innovative
personnel will be entitled to participate in any compensation or benefits plan of Client.
C. Force Ma cure. Neither party will be liable or responsible for any delay or failure in performance if such
delay or failure is caused in whole or in part by fire, flood, explosion, power outage, war, strike, embargo,
government regulation, civil or military authority, hurricanes, severe wind, rain, other acts of God, acts or omissions
of carriers, third -party local exchange and long distance carriers, utilities, Internet service providers, transmitters,
vandals, or hackers, or any other similar causes that may be beyond its control (a "Force Majeure Event").
d. Notice. Any notice or communication required to be given by either party must be in writing and made by
hand delivery, express delivery service, overnight courier, electronic mail, or fax, to the party receiving such
communication. Unless otherwise instructed in writing, such notice will be sent to the parties at the addresses set
forth on the first page of the Agreement. All communications pursuant to this Section will be deemed delivered as
follows: (a) upon receipt, if delivered personally or by a recognized express delivery or courier service; or (b) when
electronically confirmed, if delivered by facsimile.
e. Invalidity. Any provision of this Agreement which is invalid, illegal, or unenforceable in any jurisdiction will,
as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.
f. Counterparts. This Agreement may be executed by the parties in separate counterparts by original, .pdf (or
similar format for scanned copies of documents) or facsimile signature, each of which when so executed and
delivered will be deemed an original, but all such counterparts will together constitute but one and the same
instrument.
g. Publicity. Except as provided in this Section, neither party will make any press release, public statement or
other disclosure regarding the terms of this Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, Innovative will have the right to issue
public statements pertaining to the existence of the business relationship between Innovative and Client, including
the right to limited use of Client's name, logo and other reasonable non -confidential information in press releases,
web pages, advertisements, and other marketing materials.
h. Assignment. Neither party has the power to assign, license, or sub -license any of its rights or obligations
hereunder without the prior written consent of the other party, which will not be unreasonably withheld. Any
assignment, license, or sub -license attempted without such consent will be void. Notwithstanding the foregoing, a
party may assign this Agreement without the other party's consent (i) as part of a corporate reorganization,
consolidation, merger, or sale of substantially all of its assets or capital stock; or (ii) to an Affiliate of such party
provided that any such assignment will not release the assigning party from its obligations under this Agreement.
Page 10 of 16
reement No. 641
i. Waiver of JuU Triat Governing Lan ua e. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE SUBJECT MATTER HEREOF. This Agreement and all proceedings hereunder will be conducted in the
English language; any translation of this Agreement into another language will be for convenience only but will not
modify the meaning hereof. Only a written instrument duly executed by both parties may modify this Agreement.
j. Entire Agreement. This Agreement contains the entire understanding of the parties, and supersedes all
prior agreements and understandings relating to the subject matter hereof, provided that nothing herein will diminish
or affect any separate services agreement or statement(s) of work issued thereunder. The parties represent that
they are sophisticated commercial entities, have had the opportunity to consult with their own counsel, and have
included in this Agreement all terms material to the parties' rights and obligations with respect to the subject matter
hereof and intend this document to be the final expression of their contractual intent. The parties further represent
and acknowledge that communications exchanged between the parties during contract negotiation (including,
without limitation, requests for proposal ("RFPs") and Innovative's responses to such RFPs; questionnaires and
responses to same, quotes) do not constitute a part of this Agreement. Purchase orders, work orders or other such
documents submitted by Client will be for Client's internal administrative purposes only and the terms and conditions
contained in any such purchase order, work order or other such document will have no force or effect and will not
amend or modify this Agreement. In the event of any inconsistencies or conflicts among the GTCs, the SaaS
Agreement or any other exhibits or schedules referenced by these GTCs, the following order of priority will control:
1. SaaS Agreement, 2. GTCs and 3. any other terms, agreements, exhibits or schedules included in, or referenced
by the Agreement.
Page 11 of 16
reement No. b411
Exhibit C
Innovative Interfaces Incorporated
Service Level Agreement
This Service Level Agreement ("SLA") between Client and Innovative for the Platform apply to the SaaS
Agreement and, except as otherwise set forth below, is provided at no additional cost to Client. Unless otherwise
specified, capitalized terms in this SLA have the same meaning as those in the GTCs. The terms set forth herein
supplement, but do not replace or modify, the GTCs.
1. Error Response. Error descriptions (each an "Error'), the Error severity levels and corresponding targeted
response time per level are each described in the table below. The Targeted Response Times in the table below
identify the response times that Innovative will target for the corresponding Error, however, such Targeted
Response Times are not guaranteed.
Severity
Description
Target
Response Time
One - Site Down
The Application Service is not available
1 hour
Two — Critical
An inoperable production module
2 hours
Three - High
Lesser issues, questions, or items that minimally impact the work
2 business days;
flow or require a work around
excludes
holidays and
weekends
Four — Routine
Issues, questions, or items that don't impact the work flow. Issues
4 business days;
that can easily be scheduled such as an upgrade or patch
excludes
holidays and
weekends
2. Error Reporting and Diagnosis.
a. Client must designate a representative as the contact that will report Errors to Innovative and be
Innovative's primary contact for the implementation of this SLA (such representative is referred to herein as the
"Client Contact"). When a Client Contact reports an Error, Innovative will use commercially reasonable efforts to
diagnose the root cause of the Error ("Diagnosis"). Upon completing the Diagnosis, each Error will be classified as
either a "Warranty Error" or a "Non -Warranty Error" pursuant to Section 3.b. below. Innovative will use commercially
reasonable efforts to diagnose and repair both Warranty and Non -Warranty Errors as described below.
b. "Warranty Errors" are all Errors that do not qualify as Non -Warranty Errors. "Non -Warranty Errors" are
Errors resulting from any of the following causes: (i) misuse, improper use, alteration or damage of the Platform; (ii)
operator error; (iii) incorrect data entry by Client; (iv) third -party software not part of the Platform; (v) errors and/or
limitations attributable to Client environment; (vi) Client's failure to incorporate any New Release previously provided
to it by Innovative which corrects such Error; (vii) modification of the Platform performed by Client; and (viii) technical
consulting services provided by Innovative at Client's request (e.g., change orders, integration development, or
configuration design and implementation), unless Client notifies Innovative of such technical consulting services
problem within the applicable warranty period set forth in the governing statement of work, change order or
agreement. Client acknowledges that the Platform is intended for use only with the software and hardware described
in the Specifications provided by Innovative from time to time, and Client will be solely responsible for its adherence
thereto.
3. Complimentary and Chargeable Support. Innovative will respond to all reported Errors pursuant to
Section 2 above and will use commercially reasonable efforts to resolve Warranty Errors at no additional charge if
Client is current on its payments; however, Innovative may charge Client for such effort with respect to Non -
Warranty Errors according to the following process: (i) When the Client Contact reports any Error, prior to
Page 12 of 16
reement No. 6421
commencing the Diagnosis for the Error, Innovative will notify the Client Contact that the Diagnosis and repair effort
will be at no charge to Client unless the reported Error is determined to be a Non -Warranty Error, in which case
only the first two hours of Diagnosis will be at no charge; and (ii) Innovative will then commence the Diagnosis
unless instructed otherwise by the Client Contact. If more than two hours are required for the Diagnosis of Non -
Warranty Errors, then such additional Diagnosis hours will be charged to Client at Innovative's then -current rate for
technical services. Once the Diagnosis is complete, the Client Contact will be given the option of having Innovative
proceed with repairing the Non -Warranty Error, and, if so requested, Innovative will provide an estimate of the total
cost for such effort. If agreed to by the Client Contact, Innovative will undertake to repair the Non -Warranty Error
and charge Client for the associated technical services performed.
4. Ticket Management and Escalation. Innovative manages all reported issues using a ticket management
system, and provides an Internet portal for Clients to report issues. Clients may review the status of issues reported
online. When an Error is either unresolved or not resolved in a timely fashion, the Client should contact Innovative
representatives pursuant to Innovative's escalation policy made available on Innovative's Internet portal.
5. Hosting Services. Innovative provides industry -leading security and monitoring at a SOC 1/SOC 2 Type
2/ISO 27001-audited datacenter by a top -tier cloud hosting provider (the "Hosting Provider"), with the flexibility to
meet clients' data storage, data recovery, and information security policy requirements. To meet clients' global
hosting needs, Innovative offers hosting options in datacenters located in the United States, Canada, United
Kingdom, Ireland, Australia and the Asia -Pacific region, however, Innovative reserves the right to increase,
decrease and/or relocate its datacenters at any time.
Feature
Standard
247 infrastructure monitoring
✓
Dedicated production environment
✓
99.5% uptime**
✓
Dedicated public IP address and custom URL
✓
Operating system installation and management
✓
Library software installation and upgrades
✓
Data backups
Daily
Archive data backup retention
30 days
6. **The 99.5% uptime is subject to the following:
a. Hours of Operation/Exclusive Remedy for Service Unavailability. During the Term, Innovative will use
commercially reasonable efforts to ensure that the Applications Services are available for access and use in
accordance with the Agreement of at least 99.5% Scheduled Up -Time, as measured over any calendar year..
Scheduled Up -Time means all of the time in a month that is not Scheduled Downtime or Third Party Unavailability.
In the event that Innovative fails to provide Client with 99.5% Scheduled Up -Time for three consecutive months,
Client will be entitled to receive a credit equal to the prorated amount of the Fees for the period in which Innovative
failed to provide such Scheduled Up -Time during such months upon receipt of written notice from Client. The
remedies set forth in this Paragraph (i) are the exclusive remedies of the Client for Innovative's failure to provide
Client with 99.5% Scheduled Up -Time.
b. Scheduled Downtime. Scheduled Downtime means the period of time which Innovative or the Hosting
Provider, conduct periodic scheduled system maintenance and release updates for which Innovative will provide
Page 13 of 16
reement No. 6411
the Client with advance notice. Innovative will make commercially reasonable efforts to provide Client notice of
scheduled system maintenance 48 hours in advance.
Page 14 of 16
reement No. 6411
Exhibit D
Innovative Interfaces Incorporated
Information Security Terms and Conditions
Unless otherwise specified, capitalized terms in these Information Security Terms and Conditions have the
same meaning as those in the GTCs. The terms set forth herein supplement, but do not replace or modify, the
GTCs.
1. Use of Client Data. Except as set forth herein or otherwise agreed to by the Parties or authorized by Client,
Innovative will not use Client Data for any purpose other than the fulfillment of its obligations under the Agreement.
2. Security Controls.
a. Generally. Subject to the terms of the Agreement, Innovative implements industry -recognized security best
practices to prevent the unintended or malicious loss, destruction or alteration of Client's data resident in the
Platform.
b. Network Systems Audit Logging. All network logon activity and password changes are logged, monitored,
controlled and audited. All intrusion detection and firewall log monitoring is done through services provided by the
Hosting Provider. The pertinent log files and configuration files related to customer's hosted solution are retained
for seven days and can be made available upon request for audit and problem resolution, as may be required.
C. Encnption. Encryption for data -in -transit is provided as a part of the Standard Plan.
d. Network Monitoring. All network systems and servers are monitored 24/7/365. Innovative will monitor its
systems for security breaches, violations and suspicious activity. This includes suspicious external activity
(including, without limitation, unauthorized probes, scans or intrusion attempts) and suspicious internal activity
(including, without limitation, unauthorized system administrator access, unauthorized changes to its system or
network, system or network misuse or program information theft or mishandling). Innovative will notify Client as
soon as reasonably possible of any known security breaches or suspicious activities involving Client's production
data or environment, including, without limitation, unauthorized access and service attacks, e.g., denial of service
attacks.
e. Physical Security. The physical infrastructure used to support the Platform and Application Services for
Client (and other professional services purchased by Client from Innovative, as applicable), including the servers,
storage, switches, and firewalls, are provided by the Hosting Provider. Hosting Provider limits access to only
authorized personnel, and badge and/or biometric scanning controls access. Security cameras placed in the hosting
facilities provide video surveillance.
f. Audit and Security Testing. Hosting Providers perform regular security audits and testing. Per Hosting
Provider policy, Client may not perform their own audits of Hosting Providers.
g. Securty Assessments. Client may perform vendor due diligence reviews of Innovative's security best
practices. Innovative undergoes annual audits by independent firms and will share its security certifications, and
audit reports under Non -Disclosure, as requested by Client.
h. Information Security Auditing/Compliance. Innovative's hosting providers undergo SOC 1/SOC 2 Type
2/ISO 27001 audits each year by independent third -party audit firms. Innovative also holds the internationally -
recognized ISO 27001:2013 standard for its information security management system supporting the hosting
solutions. Innovative partners with Hosting Providers who are designed to satisfy requirements of most security
sensitive customers with constant monitoring, high automation, high availability, and highly accredited to global
security standards, including: PCI DSS Level 1, ISO 27001, FISMA Moderate, FedRAMP, HIPAA, and SOC 1
(formerly referred to as SAS 70 and/or SSAE 16) and SOC 2.
L Acknowledgement of Shared Responsibilities. The security of data and information that is accessed, stored,
shared, or otherwise processed via a multi -tenant cloud service are shared responsibilities between a cloud service
provider and its customers. As such, the Parties acknowledge that: (a) Innovative is responsible for the build and
implementation of the hosted Platform and Application Services, for monitoring performance and access, for
Page 15 of 16
reement No. 6411
configuring security access controls and change management, and for supplying updates to correct errors in support
of this Agreement; and (b) Client is responsible for properly implementing access and use controls and configuring
certain features and functionalities of the Platform and Application Services that Client may elect to use in the
manner that Client deems adequate to maintain appropriate security, protection, deletion, and backup of Client
Data.
Page 16 of 16