CONTRACT 5663 Other Agreement No. 5663
VENDOR AGREEMENT
BETWEEN
ARCHIVESOCIAL,INC.
AND
THE CITY OF EL SEGUNDO
This AGREEMENT is made and entered into this 2nd day of March, 2019, by and
between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("You" or
"Your") and ARCHIVESOCIAL, INC., a North Carolina corporation ("We, "Us," or"Our").
The parties agree as follows:
THESE TERMS GOVERN YOUR USE OF OUR SERVICES. IF YOU REGISTER FOR A
FREE TRIAL FOR OUR SERVICES OR FOR FREE SERVICES, THE APPLICABLE
PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL OR THOSE
FREE SERVICES.
BY ACCEPTING THESE TERMS, BY CLICKING A BOX INDICATING YOUR
ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THESE
TERMS, OR FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO
THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE
AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR"YOUR" SHALL REFER TO
SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT
ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES. ANY CHANGES TO
THESE TERMS WILL BE IN EFFECT AS OF THE "LAST UPDATED" DATE
REFERENCED ABOVE. YOU SHOULD REVIEW THESE TERMS PRIOR TO USING OR
PURCHASING ANY OF OUR SERVICES. YOUR CONTINUED USE OF OUR SERVICES
AFTER THE"LAST UPDATED"DATE WILL CONSTITUTE YOUR ACCEPTANCE OF
AND AGREEMENT TO SUCH CHANGES.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR,
EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT
ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY,
PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR
COMPETITIVE PURPOSES.
1. THE DEFINITIONS
"Affiliates" means any entity, instrumentality, or Governmental Entity that directly or indirectly
controls, is controlled by, or is under common control with the subject entity.
"Archived Content" means content, data, and/or information that is captured and archived by
the Services that You transmit to and through certain social media platforms and certain Internet
websites that You designate.
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"ArchiveSocial," "We, "Us," or"Our" means ArchiveSocial, Inc., a North Carolina corporation
doing business as ArchiveSocial,together with its parents, subsidiaries and affiliates.
"Authentication Information"means, with respect to each Permitted Account, the username,
password, login information, or other user credentials required to authorize the Services for the
Permitted Account on the Supported Platform.
"Content"means information obtained by Us from publicly available sources or third party
content providers and made available to You through the Services.
"Governmental Entity" means any supranational, national, state, municipal, local government,
any instrumentality, subdivision, court, administrative agency or commission, or other
governmental authority, or any quasi-governmental or private body exercising any regulatory or
other governmental or quasi-governmental authority.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including,
for example, viruses, worms, time bombs, and Trojan horses.
"Order Form" means Our ordering template or online order specifying the Services to be
provided hereunder entered into between You and Us, including any addenda and supplements
thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms
of these Terms as if it were an original party hereto.
"Privacy Policy" means Our privacy policy located at: https:Harchivesocial.com/privacy.
"Services" means the services provided by Us to You under these Terms to automatically
capture and archive certain social media and Internet website content for records retention, e-
discovery, regulatory compliance and other related and/or relevant purposes.
"Terms" means these Terms of Service, Privacy Policy, incorporated herein by reference, and
such other additional terms and conditions specific to certain areas of our Website and/or
Services.
"User" means, in the case of an individual accepting these Terms on his or her own behalf, such
individual, or, in the case of an individual accepting these Terms on behalf of a company or other
legal entity, an individual who is authorized by You to use the Services, for whom You have
purchased a subscription (or in the case of any Services provided by Us without charge for whom
a Service has been provisioned), and to whom You (or,when applicable, We at Your request)
have supplied user identification and password (for Services utilizing authentication). User may
include, for example, Your employees, consultants, contractors and agents, and third parties with
which You transact business.
"Website"means Our website located at https:Harchivesocial.com.
"You" or"Your" means, in the case of an individual accepting these Terms on his or her own
behalf, such individual, in the case of an individual accepting these Terms on behalf of a
company, Governmental Entity, or other legal entity, the company, Governmental Entity, or
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other legal entity for which you are accepting these Terms, and Affiliates of that company or
entity.
2. OUR RESPONSIBILITIES
2.1 Provision of Services. We will (a) make the Services and Archived Content available to You
pursuant to these Terms and any applicable Order Forms, and (b) use commercially reasonable
efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned
downtime, (ii) any unavailability caused by circumstances beyond Our reasonable control,
including for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act
of terror, strike or other labor problem (other than one involving Our employees), Internet
service provider failure or delay, third party application failure or delay or other restriction,
Supported Platform degradation or outage, or denial of service attack, and (iii) any changes,
modifications, or removal of features to a social media or web hosting platform that We support
(collectively, "Supported Platforms"), or its application programming interfaces or terms of
use.
2.2 Authentication Information. In order for us to provide the Service and to capture, archive,
and to maintain Archived Content for You, You will need to authorize the Service with the
Supported Platforms by providing Your Authentication Information to the Supported Platforms
(including any updates to such Authentication Information)with respect to social media accounts
and/or Internet websites owned by You or that You have explicit authorization to use
(collectively, "Permitted Accounts") on the Supported Platforms. We will not have any access
to nor store Your Authentication Information. Failure to comply with the terms of this Section
may result in Us, in Our sole discretion, immediately terminating Your Services, revoking or
restricting Your right to access and/or to use the Website, Services, or Your Archived Content.
2.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our
employees and contractors) and their compliance with Our obligations under these Terms, except
as otherwise specified herein.
3. FREE TRIALS
3.1 Free Trial. If You register on Our Website for a free trial, We will make one or more
Services available to You on a trial basis free of charge until the earlier of(a)the end of the free
trial period for which You registered to use the Services, or(b)the start date of any Services
purchased by You, or(c)termination by Us in our sole discretion. Additional trial terms and
conditions may appear on the trial registration webpage. Any such additional terms and
conditions are incorporated into these Terms by reference and are legally binding.
3.2 DISCLAIMERS. ANY ARCHIVED CONTENT, DATA YOU ENTER INTO THE
SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU,
DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU
PURCHASE A SUBSCRIPTION TO THE SERVICES BEFORE THE END OF THE TRIAL
PERIOD.NOTWITHSTANDING SECTIONS 9 (WARRANTY; DISCLAIMER OF
WARRANTY; LIMITATION OF LIABILITY)AND 8.1 (INDEMNIFICATION BY US),
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED"AS-IS"WITHOUT ANY
WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH
RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING
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THE FOREGOING, WE AND OUR AFFILIATES AND THEIR LICENSORS DO NOT
REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES
DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, AND (B)
YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN SECTION 9.3 (LIMITATION OF LIABILITY), YOU
SHALL BE FULLY LIABLE UNDER THESE TERMS TO US AND OUR AFFILIATES FOR
ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE
TRIAL PERIOD, ANY BREACH BY YOU OF THESE TERMS AND ANY OF YOUR
INDEMNIFICATION OBLIGATIONS HEREUNDER.
4. USE OF THE SERVICES AND CONTENT
4.1 Usage Limits. Services and Archived Content are subject to usage limits, including, for
example, the number of Permitted Accounts and/or the monthly volume of new Archived
Content. If you regularly exceed the contractual usage limit, We may work with You to help
reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are
unable or unwilling to abide by a contractual usage limit, You may be required to purchase
additional quantities of the applicable Services upon Our request.
4.2 Usage Restrictions. You will not(a) make the Services available to anyone other than
Users, or use the Services for the benefit of, anyone other than You, unless expressly stated
otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or
lease the Services, or include the Services in a service bureau or outsourcing offering, (c)use the
Service to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or
performance of the Services or third-party data contained therein, (e) attempt to gain
unauthorized access to the Services or Archived Content or its related systems or networks, (f)
permit direct or indirect access to or use of the Services in a way that circumvents a contractual
usage limit, or to access or use any of Our intellectual property except as permitted under these
Terms, (g) modify, copy, or create derivative works based on the Services or any part, feature,
function or user interface thereof, or(h) disassemble, reverse engineer, or decompile the Services
or access it to (1)build a competitive product or service, (2) build a product or service using
similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features,
functions or graphics of the Service or(4) determine whether the Services are within the scope of
any patent. Any use of the Services in breach of these Terms, by You or Users that in Our
judgment threatens the security, integrity or availability of Our Services, may result in Our
immediate suspension of the Services; however, We will use commercially reasonable efforts
under the circumstances to provide You with notice and an opportunity to remedy such violation
or threat prior to such suspension.
4.3 Content Restrictions. You may not incorporate or use the Services in connection with
Your Permitted Accounts if Your Permitted Accounts or any of the content, data, and/or
information available on such Permitted Accounts (or if Your use of the Service otherwise) falls
within any of the following: (a) is primarily directed to children age 13 or under or that has
children aged 13 or under as a significant proportion of its users; (b) contains adult
entertainment, including pornography, erotic content, sexually explicit content, prostitution, or
any other content not appropriate for general audiences; or(c)promotes, encourages or facilitates
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any illegal activity, violates the law or violates the rights of any third party (including, without
limitation, intellectual property rights, rights of privacy, or rights of personality).
4.4 Credentials. You are responsible for creating an account within the Services and ensuring
that: (a)Your account registration information is complete and accurate; and (b)Your account
credentials are confidential. You will notify Us immediately of any unauthorized use of Your
account or account credentials, or any other known or suspected breach of the security of Your
account. You are responsible for the activity that occurs within Your account and for the actions
or omissions of Your employees, contractors, or agents, whether such person is or was acting
within the scope of their employment, engagement, or agency relationship. You will not permit
Our competitors to access the Services.
5. INTELLECTUAL PROPERTY
5.1 Our IP. All right, title and interest in and to the Services, Website, trademarks,
tradenames, service marks, logos, the information technology infrastructure including the
software, hardware, databases, electronic systems, networks, and all applications, application
programming interfaces required to deliver the Services, or made available or accessible to You
by Us, including all documentation regarding the use or operation of the Services are the sole
and exclusive property of Ours.No rights are granted to You hereunder other than as expressly
set forth herein.
5.2 License to Host Archived Content. You grant Us, Our Affiliates and applicable
contractors worldwide, limited-term license to host, copy, display and use any Archived Content
as reasonably necessary for Us to provide, and ensure proper operation of, Our Services and
associated systems in accordance with these Terms. Subject to the limited license granted herein,
We acquire no right, title or interest from You or Your licensors under these Terms in or to any
of the Archived Content.
5.3 Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-
free license to use and incorporate into Our and/or Our Affiliates' services any suggestion,
enhancement, request, recommendation, correction or other feedback provided by You or Users
relating to the operation of Our or Our Affiliates' Services.
6. FEES
6.1 Fees. You will pay all applicable fees as listed on the Website or Order Form, as
applicable, for the Services plan based on the number of Permitted Accounts, the volume of
Archived Content, and the type of Service for which You sign up.
6.2 Invoicing and Payment. All fees with respect to the Service will be invoiced in advance
and paid in U.S. dollars of immediately available funds via check, credit card or electronic bank
transfer. You will provide Us with valid and updated credit card information, or with a valid
purchase order or alternative document reasonably acceptable to Us. If You provide credit card
information to Us, You authorize Us to charge such credit card for all purchased Services each
month. Such charges shall be made in advance, either annually or monthly. Unless otherwise
stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are
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responsible for providing complete and accurate billing and contact information to Us and
notifying Us of any changes to such information.
6.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then
without limiting Our rights or remedies, (a)those charges may accrue late interest at the rate of
1.5%of the outstanding balance per month, or the maximum rate permitted by law, whichever is
lower, and/or(b) We may condition future subscription renewals and Order Forms on payment
terms shorter than those specified in Section 6.2.
6.4 Renewal. Unless specifically agreed upon in writing between You and Us at
commencement of Your subscription to the Service, or unless You cancel the subscription using
the appropriate mechanism provided within the Service or notify Us by email at
support@archivesocial.com and receive confirmation from Us that You do not want Your
subscription to the Service to be automatically renewed, You agree that We may automatically
renew Your subscription and automatically charge You the applicable renewal or Service fees
for such renewed subscription (as listed on the Website) for the Service using the credit card or
other payment information associated with Your Subscriber account at the expiration of each
period of Service for which You have already paid.
6.4 Refunds and Changes to Service. In the event that You cancel Your subscription to the
Service (but not in the event that Your subscription is terminated by Us, including as a result of
Your violation of these Terms), You shall continue to have access to the portion of the Service
during the remaining period of time, if any, for which You have already paid to access and to use
the Service. You will not be entitled to any refund with respect to all or any portion of Your
subscription to the Service or related Service fees which You may have paid in advance,
regardless of the reason You cease to use such Service or choose to cancel Your subscription to
such Service, although We may elect to provide such a full or partial refund in Our sole
discretion. If You change subscription plans during the term of Your current subscription to the
Service, You may be eligible for a pro rata credit against the cost of any new Service fee or
subscription amount based on the remaining unused and prepaid portion of Your prior
subscription.
7. PRIVACY STATEMENT AND SECURITY
We treat Your privacy seriously and respect Your concerns about how We may gather and/or use
Your Archived Content. While We cannot guarantee the privacy and security of Your Archived
Content, We will use commercially reasonable efforts consistent with other businesses of a
similar size and nature to help ensure the safety of Your Archived Content. However, as more
fully described in the Privacy Policy, You acknowledge and agree that We cannot and do not
represent, warrant, covenant or guarantee that the Website,the Service or Your Archived
Content are invulnerable to all security breaches or immune from viruses, security threats or
other vulnerabilities.
In addition, when You initially access the Website, and on occasions when You access the
Website thereafter, We may collect certain data in addition to the data collected during
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registration for the Services. Our Privacy Policy will govern how We may collect and use this
data.
By assenting to these Terms and using this Website and the Services, You evidence Your
agreement with, and understanding of, the Privacy Policy accessible on Our Website. You may
read and review our Privacy Policy at https:Harchivesocial.com/privacy. YOU ARE
ENCOURAGED TO PRINT AND TO READ THE PRIVACY POLICY CAREFULLY AND
TO CONTACT US WITH ANY QUESTIONS THAT YOU MAY HAVE BEFORE
COMMENCING YOUR USE OF THE WEBSITE OR THE SERVICE.
8. MUTUAL INDEMNIFICATION
8.1 Indemnification By Us. We will defend You against any claim, demand, suit or proceeding
made or brought against You by a third party alleging that the Services infringe or
misappropriate such third party's intellectual property rights (a"Claim Against You"), and will
indemnify You from any damages, attorney fees and costs finally awarded against You as a
result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim
Against You, provided You promptly give Us written notice of the Claim Against You, (b) give
Us sole control of the defense and settlement of the Claim Against You (except that We may not
settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give
Us all reasonable assistance, at Our expense. If We receive information about an infringement or
misappropriation claim related to the Services, We may in Our discretion and at no cost to You
(i)modify the Services so that they are no longer claimed to infringe or misappropriate, without
breaching Our warranties herein, (ii) obtain a license for Your continued use of such Services in
accordance with these Terms, or(iii) tenninate Your subscriptions for such Services upon 30
days' written notice and refund You any prepaid fees covering the remainder of the term of the
terminated subscriptions. The above defense and indemnification obligations do not apply if(1)
the allegation does not state with specificity that our Services are the basis of the Claim Against
You; (2)a Claim Against You arises from the use or combination of Our Services or any part
thereof with software, hardware, data, or processes not provided by Us, if Our Services or use
thereof would not infringe without such combination; (3) a Claim Against You arises from
Services under an Order Form for which there is no charge; or(4) a Claim Against You arises
from Archived Content or Your use of the Services in violation of these Terms.
8.2 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand,
suit or proceeding made or brought against Us by a third party alleging that (a) any of Your
Archived Content or Your use of Your Archived Content with Our Services, (b) a third party
application provided by You, or(c)the combination of a third-party application provided by You
and used with Our Services, infringes or misappropriates such third party's intellectual property
rights, or arising from Your use of the Services or Archived Content in an unlawful manner or in
violation of these Terms (each a"Claim Against Us"), and You will indemnify Us from any
damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts
paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We
(a)promptly give You written notice of the Claim Against Us, (b) give You sole control of the
defense and settlement of the Claim Against Us (except that You may not settle any Claim
Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable
assistance, at Your expense.
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8.3 Exclusive Remedy. This Section 8 states the indemnifying party's sole liability to, and the
indemnified party's exclusive remedy against, the other party for any type of claim described in
this Section 8.
9. WARRANTY; DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY;
INSURANCE
9.1 Mutual Representations and Warranties. Each party represents and warrants that(i) it is duly
incorporated, validly existing and in good standing under the law of its state of incorporation and
has the full power and authority to execute, deliver and perform these Terms, and (ii)these
Terms have been duly and validly executed and constitutes the legal, valid, and binding
obligation of such party, enforceable against such party in accordance with its terms.
9.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,NEITHER
PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS
ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR
DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF
EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR
RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY YOU AND
YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RIGHT TO THE
LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF
WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY
WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE
THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES'
PAYMENT OBLIGATIONS UNDER SECTION 6 ABOVE.
9.4 EXCL USION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY
OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO
THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR
PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND
REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS
AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF
A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL
PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT
PROHIBITED BY LAW.
9.5 FEDERAL GOVERNMENTAGENCIES. NOTWITHSTANDING THE PROVISIONS
OF THIS SECTION, IF YOU,ARE A UNITED STATES FEDERAL GOVERNMENT
ENTITY, LIABILITY OR ANY CLAIM ARISING FROM THESE TERMS SHALL BE
DETERMINED UNDER THE FEDERAL TORT CLAIMS ACT, OR OTHER GOVERNING
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FEDERAL AUTHORITY AND FEDERAL STATUTE OF LIMITATIONS PROVISIONS
SHALL APPLY TO ANY BREACH OR CLAIM.
9.6 INSURANCE. Before commencing performance under this Agreement, and at all other times
this Agreement is effective, We will procure and maintain the following types of insurance
with coverage limits complying, at a minimum,with the limits set forth below:
Tvoe ofinsurance Limits
Commercial general liability: $1,000,000
Professional Liability: $1,000,000
Workers compensation Statutory requirement
A. Commercial general liability insurance will meet or exceed the requirements of
ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name City of El Segundo, its officials, and employees as "additional
insureds" under said insurance coverage and to state that such insurance will be
deemed "primary" such that any other insurance that may be carried by You will
be excess thereto. Such insurance will be on an "occurrence,"not a"claims
made,"basis and will not be cancelable or subject to reduction except upon thirty
(30) days prior written notice to You.
B. We will furnish to You duly authenticated Certificates of Insurance evidencing
maintenance of the insurance required under this Agreement and such other
evidence of insurance or copies of policies as may be reasonably required by
Customer from time to time. Insurance must be placed with insurers with a
current A.M. Best Company Rating equivalent to at least a Rating of"A:VII."
C. Should we, for any reason, fail to obtain and maintain the insurance required by
this Agreement, you may obtain such coverage at Our expense and deduct the cost
of such insurance from payments due to us under this Agreement or terminate.
10. TERM AND TERMINATION
10.1 Term. Except as otherwise specified in an Order Form, these Terms commence on the date
You first accept them and continue for a twelve (12) month period thereafter, unless and until
earlier terminated in accordance with Section 10.2. Except as otherwise specified in an Order
Form, these Terms will automatically renew for additional twelve (12) month periods thereafter,
unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end
of the relevant term. The pricing for Services during any renewal term will be Our then-current
pricing at the time of the applicable renewal.
10.2 Termination. A party may terminate this Agreement for cause (i)upon thirty (30) days
written notice to the other party of a material breach if such breach remains uncured at the
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expiration of such period, or(ii) if the other party becomes the subject of a petition in bankruptcy
or any other proceeding relating to insolvency, receivership, liquidation or assignment for the
benefit of creditors. If You are a Governmental Entity, You may terminate this Agreement at the
end of Your fiscal year upon thirty (30) days written notice to Us for lack of sufficient funds not
appropriated to continue the Services provided in these Terms and for the payment of the fees
hereunder.
10.3 Your Data Portability and Deletion. You may export Your Archived Content at any time
during the term of these Terms. In addition, and upon written request by You made within thirty
(30) days after the effective date of termination or expiration of these Terms, We will make Your
Archived Content available to You for export or download for thirty (30) days upon Our receipt
of such written request. After such thirty (30) day period, We will have no obligation to maintain
or provide You with Your Archived Content, We will thereafter delete or destroy all copies of
Your Archived Content in Our systems or otherwise in Our possession or control, unless legally
prohibited, in accordance with Our standard retention policy.
10.4 Surviving Provisions. Sections 1, 3, 4, 5, 6, 8, 9, 10, and l 1 will survive any termination of
expiration of these Terms.
11. MISCELLANEOUS
11.1 Manner of Giving Notice. Any legal notice under these Terms will be in writing and
delivered by personal delivery, express courier, certified or registered mail, postage prepaid and
return receipt requested, or by email.Notices will be deemed to be effective upon personal
delivery, one (1) day after deposit with express courier, five (5)business days after deposit in the
mail, or when receipt is acknowledged in the case of email to Us.Notices will be sent to You at
the address set forth on the Order Form or such other address as You may specify.Notices will
be sent to Us at the following address: ArchiveSocial, Inc., Attention: Legal Department, P.O.
Box 3330, Durham,NC 27702-3330, or in the case of email, to notices@Archivesocial.com.
11.2 Governing Law; Venue. These Terms will be governed by and construed in accordance with
the laws of the State of North Carolina,without regard to conflict/choice of law principles. Any
legal action or proceeding arising under these Terms will be brought exclusively in the federal or
state courts located in Wake County, in the State of North Carolina, and the parties hereby
irrevocably consent to the personal jurisdiction and venue therein. If You are a Governmental
Entity, these Terms will be governed by, construed in accordance with the laws of the Your
jurisdiction, without regard to conflict/choice of law principles, and any legal actions or
proceedings arising under these Terms will be brought exclusively in the federal or state courts
of Your jurisdiction.
11.3 Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.
11.4 Entire Agreement and Order of Precedence. Except as otherwise agreed in writing by the
parties,these Terms and Exhibit(s) are the entire agreement between You and Us regarding Your
use of the Services and supersedes all prior and contemporaneous agreements, proposals or
representations,written or oral, concerning its subject matter. Except as otherwise provided
herein, no modification, amendment, or waiver of any provision of these Terms will be effective
unless in writing and signed by the party against whom the modification, amendment or waiver
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is to be asserted. You expressly acknowledge and agree that any term or condition stated in Your
purchase order or in any other of Your order documentation, Your referenced online terms
(excluding Order Forms) is void and without effect. In the event of any conflict or inconsistency
among the following documents, the order of precedence shall be: (1)the applicable Order Form
and (2)these Terms.
11.5 Assignment. Neither party may assign these Terms, in whole or in part,without the other
party's prior written consent, except that either party may assign these Terms without the other
party's consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all,
or substantially all, of its assets. Any attempt to assign these Terms other than as permitted
herein will be null and void. These Terms will inure to the benefit of, and bind,the parties'
respective successors and permitted assigns.
11.6 Relationship of the Parties. The parties are independent contractors. These Terms do not
create a partnership, franchise,joint venture, agency, fiduciary or employment relationship
between the parties.
11.7 Waiver. No failure or delay by either party in exercising any right under these Terms will
constitute a waiver of that right.
11.8 Publicity. We may disclose that You are a customer of Ours.
11.9 Severability. If any provision of these Terms is held by a court of competent jurisdiction to
be contrary to law, the provision will be deemed null and void, and the remaining provisions of
these Terms will remain in effect.
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Agreement No. 5663
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
written above.
ARCHIVESOCIAL, INC. CIT N F-Y3 UNJ,
Name 1104rt Sydnor Greas-per .-r,
Title COO Cit. ara r
Taxpayer ID No. 45-4844733
ATT 'ST:
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City Clerk
APPROVED AS TO FORM
Marls D. Hensley
City Attorney
12
Agreement No. 5663
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
written above.
ARCHIVESOCJAL- INC. CITY OF EL SEGUNDO
A _................
Name Rob .rt Sydnor Greg Carpenter,
Title COO City Manager
Taxpayer ID No. 45-4844733
ATTEST:
Tracy Weaver,
City Clerk
APPROVED AS TO FORM
for
iAW8
City Attorney
12
Agreement No. 5663
EXHIBIT A
Archive.E`,`3 C11
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Account Order Form
Thanks for choosing ArchiveSocial for your social media records solution.
Please review and submit any needed changes via email.
Your Subscription Plan
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Billing start date: 03/02/19
Plan: Premium(5000 records-unlimited. accounts)
If Enterprise, number of records:
Additional information:
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Name: Mona Shilling
Title: Deputy City Clerk II
Email: Imshilling@elsegundo.org
Phone number: (310)524-2307
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Name: Barbara Voss
Title: Economic Development Manager
Email: bvoss@elsegundo.org
Phone number: (310)524-2359
What's included:
•Unlimited data storage
•Unlimited data exports
•Records from the beginning of your social media pages
•Phone and Email customer support
•Dedicated Customer Success Team
Payment process:We will issue an invoice for initial prolate d term.
Invoices are payable on net-30 terms via check, credit card,or electronic bank transfer. Please note that annual and initial
prorated invoices will come from quickbooks@notification,intuit.com.
*If initial invoice prorated, dates of service covered: 03/02/19-09/30/19
Service will renew annually beginning on: 10/01419
Please note that if you plan to issue a purchase order,we request you include the following language
on the front of the PO:
ArchiveSocial's maximum liability under this purchase order is limited to the total amount of fees received during the 12
month period preceding the event giving rise to the liability,except that such limitation of liability will not apply to
ArchiveSocial's indemnification for intellectual property infringement or personal injury.
Your use of service will be subject to our standard terms of service available on our website_
Agreement No. 5663
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PO Box 3330
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Ihp" Durham, NC 27702 US
II 9192603043
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invoicing@archivesocial.com
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ADDRESS QUOTE# 4928
City of EI Segundo, CA DATE 02/22/2019
ACTIVITY QTY RATE AMOUNT
Archive-Premium-599 6 599.00 3,594.00
One month of ArchiveSocial Premium package.
Archiving of up to 5000 new social media
records/month (unlimited social media accounts).
Archive-Premium-599 29 19.97 579.13
One day of ArchiveSocial Premium package.
Archiving of up to 5000 new social media
records/month (unlimited social media accounts).
Formal Quote for ArchiveSocial Service TOTAL $4,173-13
(Premium)
Service Dates:3/02/19-9/30/19
*All quotes and invoices are issued in USD
Accepted By Accepted Date
Agreement No. 5663
IIINdii );d't,, ArchiveSocial
PO Box 3330
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Durham, NC 27702 US
° 9192603043
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ADDRESS QUOTE# 4929
City of EI Segundo, CA DATE 02/22/2019
ACTIVITY QTY RATE AMOUNT
Archive-Premium-599 12 599.00 7,188.00
One month of ArchiveSocial Premium package.
Archiving of up to 5000 new social media
records/month (unlimited social media accounts).
Formal Quote for 1 year of ArchiveSocial Service TOTAL $7,1 8800
(Premium)
'All quotes and invoices are issued in USD
Accepted By Accepted Date