HomeMy WebLinkAboutNeighborly Software a dba of Benevate, Inc Software As A Service (SAAS) Agreement - 12-14-23 Benevate Inc.&,City of Fresno,CA-CORE SAAS Agreement
SOFTWARE AS A SERVICE(SAAS)AGREEMENT
This SaaS Agreement("Agreement")is entered into between Benevate,Inc.,d/b/a Neighborly Software,a Delaware Corporation,with
its principal place of business located at 3423 Piedmont Rd.NE.Atlanta, GPI 30305 ("Company"). and the Customer listed above
(referred to as the"Customer")(collectively referred to as the"Parties"). This Agreement includes and incorporates the above Order
Form.the Terms and Conditions below.and Exhibits A-B attached hereto.
TERMS AND CONDITIONS
1. DEFINITIONS.
a. "Authorized User"means those individuals designated and authorized by the Customer to use one of the purchased licenses to
access the Software and Services,using his or her login credentials(email address and password),which may only be used by
that single,named user.
b. "Confidential Information" means all information, in oral, written, machine readable, sample or any other form, that either
Party discloses("Discloser")to the other("Recipient")relating to the business of Discloser,whether furnished before or after
the Effective Date of this Agreement,including,without limitation,information related to pricing,products,services,Customer
Data, and any implementing regulations or guidelines, proprietary business practices, policies, finances, procedures, sales,
costs, liabilities, markets, strategies. concepts. methods or employees, that is not generally ascertainable from public or
published information or sources,and all analyses,compilations,data,studies,notes,memoranda or other documents prepared
by Discloser based on such Confidential Information.
c. "Customer Data" means any non-public, personal information provided by the Customer to the Company to enable the
provision of Services.
d. "Documentation"means the applicable training materials,user guides,publicly available marketing and/or proposal materials,
and other similar information.or other documents disseminated under or governed by confidentiality obligations which pertain
to the Software or Services provided by Company,which may be updated by Company at any time without notice to include
information about new features and incorporate feedback to help Company's customers understand how to use the Software
and Services.
e. "Effective Date"means the first day of the Initial Service Term,November 16,2023.
f. "License Fees"means the annual cost for the administrative license(s)enabling users to have access to the Software.
g. "Professional Services"means non-standard customization and services available at an additional fee,including,but not limited
to, data migration services, in-person trainings, Power BI services, geographical data services, non-standard professional
developer services,etc.
h, "Services"means standard implementation services,configuration of stated program(s)to allow for enrollment,qualification,
administration and reporting, access to the Software, technical support services, hosting and security services, data storage,
backup,recovery,and other services provided by the Company as described in the Order Form or this Agreement.
i. "Software"means the proprietary web-based products,including,but not limited to,the source code,object code or underlying
structure,ideas,know-how or algorithms,documentation,or data related to the Services provided by Company,or its licensors
identified on an Order Form and subsequently made available to Customer by Company in accordance with an Order Form or
this Agreement.
2. SOFTWARE AND SERVICES.
a. During the Term of this Agreement, Company will provide Customer access to, and use of, the Software, Services, and
Documentation by enabling a portal for Customer to access through a web browser(the"Portal").
b. This Agreement does not contemplate any customized products, services, work-for-hire, or code developed exclusively for
Customer. In the event that the Parties agree that Company shall provide such non-standard Professional Services, the
description of the services and applicable ownership rights with respect to such Professional Services will be set forth in a
separately executed Professional Services Agreement.This Agreement does not contemplate any IP rights beyond the terms
provided herein.
c. Company will make available to Customer all updates and any documentation for such updates to the Services.Company will
use commercially reasonable efforts to ensure that(i)new features or enhancements to existing features are synchronized with
the previous version, and (ii) updates will not degrade the performance, functionality, or operation of the Services. General
maintenance of the system is completed on a regular basis to ensure optimal performance of the Services.
2
Benevate Inc.&City of Fresno,CA-CORE SAAS Agreement
d. Service Levels. Company will use commercially reasonable efforts to maintain the availability of the Services at a level of
99.5%. For further specifications regarding the Service Levels,refer to Service Level Terms attached as Exhibit"A"to this
Agreement.
e. Technical Support. With the exclusion of Federal Holidays,Technical Support is available from 8:00 a.m.to 8:00 p.m. EST,
Monday - Friday. ("Support Hours"). Customer shall initiate a helpdesk ticket during Support Hours by sending an email to
support@neighborlysoftware.com.Company will use commercially reasonable efforts to respond to all Helpdesk tickets within
one(1)business day.
f. Data Storage.All Customer Data will be stored,processed,and maintained solely in data centers located in the United States.
g. Backup and Recovery of Customer Data. Company is responsible for maintaining a backup of the Customer Data and for an
orderly and timely recovery. Company shall maintain a contemporaneous backup of Customer Data that can be recovered
within a reasonable period of time.
3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES.
a. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the
source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software,
documentation, or data related to the Services ("Software"); (ii) modify, translate, or create derivative works based on the
Services or any Software(except to the extent expressly permitted by Company or authorized within the Services);nor(iii)use
the Services or any Software for timesharing or service bureau purposes.
b. Customer represents,covenants,and warrants that Customer will use the Services in compliance with all applicable laws and
regulations.
c. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to,access
or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems,
networking,web servers and the like.
d. At no time is it permissible for an Authorized User to share their login credentials.The number of Authorized Users licensed
hereunder is specified in the Order form or as formally requested and approved,in writing,during the Term.Customer is solely
responsible for maintaining the status of its Authorized Users and the confidentiality of all login credentials and other Portal
access. information under its control. Customer will notify Company immediately if Portal information is lost, stolen, or
disclosed to an unauthorized person or any other breach of security in relation to its passwords. usernames, or other Portal
access information that may have occurred or is likely to occur.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
a. Duty Not to Disclose Confidential Information. In connection with the Agreement, Recipient, and its employees and agents,
may have access to the Confidential Information of the Discloser. Recipient shall, and shall ensure that its employees and
agents shall.keep the Confidential Information of the Discloser in strict confidence and use it only for the purpose of performing
its duties under this Agreement. Recipient will not directly or indirectly disclose, publish, disseminate, make available or
otherwise communicate in any way,to any third person not having a need to know in order to perform its duties under this
Agreement, any Confidential Information of the Discloser,without the Discloser's prior written consent. Recipient will have
appropriate safeguards in place within its organization to restrict access to Confidential Information to only those individuals
as needed in connection with the performance of this Agreement.Recipient will take care of Confidential Information using at
least the same standard of care it would use with its own confidential information,but in no event shall Recipient use less than
reasonable care in protecting such Confidential Information.
b. Mandatory Disclosures. In the event that Recipient is required by law, a binding order of a governmental agency or court of
competent jurisdiction to disclose any Confidential Information of the Discloser, it shall, if legally permitted, provide [he
Discloser with prompt written notice(via e-mail that is acknowledged as received) to allow the Discloser an opportunity to
appear and object prior to Recipient's compliance with requested disclosure.The written notice shall provide Discloser with
sufficient information describing the contentof the information to be disclosed.If such objection is unsuccessful.then Recipient
shall produce only such Confidential Information as is required by the court order or governmental action.
3
Benevate Inc. &City of Fresno,CA-CORE SAAS Agreement
c. Customer shall own all right,title,and interest in and to the Customer Data,as well as any data that is based on or derived from
the Customer Data and provided to Customer as part of the Services.
d. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements,
enhancements,or modifications thereto,(b)any software,applications,inventions,or other technology developed in connection
with implementation of services or support,and(c)all intellectual property rights related to any of the foregoing.
e. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information
relating to the provision, use and performance of various aspects of the Services and related systems and technologies
(including,without limitation,information concerning Customer Data and data derived therefrom),and Company will be free
(during and after the term hereof)to (i)use such information and data to improve and enhance the Services and(ii)disclose
such data solely in aggregate or other de-identified form in connection with its business.
5. PAYMENT OF FEES
a. Payment Terms.Customer shall pay Company the fees listed in the Purchase Summary of the Order Form.An invoice for the
fees will be sent to the Customer immediately following the Effective Date and is due within thirty(30)days from the date of
the invoice.
b. Late Payments. If the Customer fails to pay any invoice in full within thirty (30) days from the due date,the Company shall
have the right to suspend the Services until payment is received. Suspension of Services in accordance with this subsection
shall not be deemed a breach of this Agreement.
C. Addition of Licenses. During the Initial Service Term,the Customer may add additional licenses based on the pricing stated
in the Order Form on a pro rata basis.
d. Additional Programs.Additional programs will be charged at the Company's then-current rates.
e. Implementation & Delay Fees. Implementation costs are based on a 6-8-week implementation period (for up to four (4)
programs). Company reserves the right to assess a weekly fee of$500.00 for implementations that exceed eight(8) weeks,
beginning on the date of the Kickoff Meeting,and caused solely by Customer's.delays.
f. Renewal.Company reserves the right to change the fees listed in the Order Form at the end of the Initial Service Term or then-
current renewal term.The Company shall provide the Customer with an invoice (via e-mail) based on the Company's then-
current pricing,sixty(60)days prior to end of the Initial Service Term or then-current renewal term.
g. Taxes. The fees do not include any taxes, including,without limitation, sales, use or excise tax. If Customer is a tax-exempt
entity,you agree to provide Company with a tax-exempt certificate. Otherwise, Company will pay all applicable taxes to the
proper authorities and Customer will reimburse Company for such taxes(this excludes Company's income taxes,both federal
and state,as applicable,arising from Company's performance of this Agreement).
h. The parties acknowledge that appropriation of funds is a governmental function which the Customer cannot contractually
commit itself in advance to perform and this Agreement does not constitute such commitment.The Customer's obligation to
pay under this Agreement is contingent upon Customer's annual appropriation of funds for such purpose, and the non-
appropriation of funding for such purpose in any fiscal year shall immediately relieve both parties of their respective obligations
hereunder,as of the last day for which funds have been appropriated.The Customer shall immediately notify the Company in
writing(via e-mail),upon determining that sufficient funds will not be budgeted and appropriated in any fiscal year under this
Agreement.
6. TERM AND TERMINATION
a. Term and Renewal. Subject to earlier termination as provided below, the term of the Agreement shall commence on the
Effective Date and shall cover the Initial Service Term as specified in the Order Form and shall automatically renew for
additional periods of the same duration as the Initial Service Term (collectively, the "Term"), unless either party requests
termination at least thirty(30)days prior to the end of the then-current term.
b. Termination for Cause.This Agreement may be terminated by either Party for cause by providing written notice(via e-mail)
to the other Party upon the occurrence of any of the following events(each,an"Event of Default"):
4
Benevate Inc.&City of Fresno,CA-CORE SAAS Agreement
(1) If the other Party ceases to do business,or otherwise terminates its business operations,except as a result of an assignment
permitted under this Agreement;
(2) If the other Party materially breaches any material provision of this Agreement and fails to substantially cure the breach
within ten(10)business days of receipt of written notice describing the breach;or
(3) If the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors
arrangement,composition,or comparable proceeding,or if any such proceeding is instituted against the other Party and
not dismissed within sixty(60)days;provided however that in such event,termination will not require notice to the other
Party.
c. Effect of Termination. Upon the termination of this Agreement, Company shall disable the Company's website portal and
provide the Customer with a final extract of the Customer Data via the Secure File Transfer Protocol (SFTP), within a
reasonable time,not to exceed thirty (30)days from the date of the termination.The extraction and transfer of the Customer
Data will be provided without charge and without any conditions or contingencies whatsoever(including but not limited to the
payment of any fees due to Service Provider).
Within thirty(30)days from the date of the final extraction and transfer of the Customer Data via the SFTP,the Company shall
provide Customer with a Termination of Services and Final Data Destruction Agreement (the "Termination Agreement"),
which will provide the details regarding termination of services and final data destruction,a sample copy of which is attached
hereto as Exhibit`B".The Customer acknowledges and agrees that if the Termination Agreement is not executed and returned
by the Customer within fifteen(15)days,the Company will follow the default process which provides for final destruction of
Customer Data forty-five(45)days after the final extraction and transfer via the SFTP.The Customer acknowledges and agrees
that the Company has no obligations whatsoever with regard to the Customer Data following the final destruction. The
Company will provide the Customer with a Certification of Data Destruction when the Customer Data has been permanently
deleted in accordance with this subsection.This Section shall survive the termination of this Agreement.
7. WARRANTY AND DISCLAIMER
a. Company Warranty. Company represents and warrants the following: (a)the Documentation sufficiently describes features,
functionality,and operation ofthe Software as applicable;(b)the Software,as applicable,conforms to the Documentation and
is free from defects in material and workmanship; (c)the Software does not contain any viruses or other malicious threats,
programs, features, or devices("Viruses")that could harm Customer, and Company uses commercially reasonable efforts to
prevent and eradicate such Viruses. Furthermore, consistent with prevailing industry standards, Company shall maintain the
Software in a manner which minimizes errors and interruptions and shall perform the Services in a professional and
workmanlike manner.Notwithstanding the foregoing,the Software may be temporarily unavailable for scheduled maintenance
or for unscheduled emergency maintenance,or because of other causes beyond Company's reasonable control,but Company
shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
b. Loss of Data. In the event of any act, error or omission,negligence,misconduct,or breach that compromises or is suspected
to compromise the security, confidentiality, or integrity of Customer Data or the physical, technical, administrative, or
organizational safeguards put in place by Company that relate to the protection of the security,confidentiality,or integrity of
Customer Data, Company shall, as applicable: (i) notify Customer as soon as practicable but no later than twenty-four(24)
hours of becoming aware of such occurrence;(ii)cooperate with Customer in investigating the occurrence, including making
available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as
otherwise required by Customer;and(iii)in the case of Personally Identifiable Information(PII),at Customer's sole election,
notify the individuals whose PII was compromised as soon as practicable but no later than is required to comply with applicable
law, or, in the absence of any legal requirement, within five(5) calendar days of the occurrence; and/or(iv)perform or take
any other actions required to comply with applicable State law as a result of the occurrence.
c. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW,THE SOFTWARE AND SERVICES ARE PROVIDED"AS IS"AND COMPANY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT
WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR MAKE ANY WARRANTIES
AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE AND SERVICES.THE LIMITED
5
Benevate Inc.8s City of Fresno,CA-CORE SAAS Agreement
WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER
IN CONNECTION WITH THE PROVISION OF THE SOFTWARE AND SERVICES.
8. INDEMNITY
a. Subject to Section 9,to the furthest extent allowed by law,Company shall defend,indemnify and hold harmless the Customer
from and against any and all direct and indirect claims, losses, liabilities, damages, costs and expenses(including lasses and
costs incurred by Customer and any reasonable attorney's fees and costs) which arise from Company's negligence or willful
misconduct; a breach of Company's confidentiality (information not of public record) obligations arising from Company's
negligence or willful misconduct;or Company's violation of a law applicable to Company's performance under the contract.
The Customer must notify Company promptly in writing of the claim and give Company control over its defense or settlement
with Customer's approval,reasonable approval will not be withheld.The Customer agrees to provide Company with reasonable
assistance,cooperation,and information in defending the claim at Company's expense.Company will defend,indemnify,and
hold harmless the Customer from third-party claims that the software and/or documentation infringes an intellectual property.
If Company should subcontract all or any portion of the services to be performed under this Agreement,Company will require
each subcontractor to indemnify, hold harmless and defend Customer in accordance with this paragraph. This section shall
survive termination or expiration of this Agreement.
9. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR
PROPERTY DAMAGE, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT
AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)ANY
SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE
CONTROL; OR(D)FOR ANY AMOUNTS THAT,TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER
CLAIMS, EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000), IN EACH CASE, WHETHER OR NOT
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INSURANCE
a. MINIMUM SCOPE OF INSURANCE
(1) The most current version of Insurance Services Office(ISO)Commercial General Liability Coverage Form CG 00 01,
providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be
written on an occurrence form and shall provide coverage for"bodily injury," "property damage" and "personal and
advertising injury"with coverage for premises and operations (including the use of owned and non-owned equipment),
products and completed operations, and contractual liability (including, without limitation, indemnity obligations under
the Agreement)with limits of liability not less than those set forth under"Minimum Limits of Insurance."
(2) The most current version of ISO*Commercial Auto Coverage Form CA 00 01,providing liability coverage arising out of
the ownership,maintenance or use o.fautomobiles in the course or your business operations. The Automobile Policy shall
be written on an occurrence form and shall provide coverage for all hired,and non-owned automobiles or other licensed
vehicles(Code 1-Any Auto). If personal automobile coverage is used,the CITY,its officers,officials,employees,agents
and volunteers are to be listed as additional insureds.
(3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
(4) Technology Liability (Errors and Omissions) insurance appropriate to COMPANY'S profession. Coverage shall be
sufficiently broad to respond to duties and obligations as is undertaken by COMPANY in this agreement and shall include
but not be limited to, claims involving invasion of privacy violations, information theft. damage to or destruction of
electronic information,release ofprivate information,alteration of electronic information,extortion and network security.
The policy shall provide coverage for breach response costs required by State law as well as regulatory fines penalties and
6
Benevate Inc. &City of Fresno,CA-CORE SAAS Agreement
credit monitoring expenses with limits sufficient to respond to these obligations.
b. MINIMUM LIMITS OF INSURANCE.COMPANY.or any party the COMPANY subcontracts with,shall maintain limits of
liability of not less than those set forth below. However,insurance limits available to CITY,its officers,officials,employees,
agents and volunteers as additional insureds,shall be the greater of the minimum limits specified herein or the full limit of any
insurance proceeds available to the named insured:
(1) COMMERCIAL GENERAL LIABILITY:
(a) $1,000,000 per occurrence for bodily injury and property damage;
(b) $1,000,000 per occurrence for personal and advertising injury;
(c) $2,000,000 aggregate for products and completed operations;and,
(d) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
(2) COMMERCIAL AUTOMOBILE LIABILITY:
(a) $1,000,000 per accident for bodily injury and property damage.
(3) WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits.
(4) EMPLOYER'S LIABILITY*
(a) $1,000,000 each accident for bodily injury;
(b) $1,000,000 disease each employee;and,
(c) $1,000,000 disease policy limit.
(5) TECHNOLOGY PROFESSIONAL LIABILITY insurance with limits of not less than:
(a) $2,000,000 per claim/occurrence;and,
(b) $4,000,000 policy aggregate
c. UMBRELLA OR EXCESS INSURANCE.In the event COMPANY purchases an Umbrella or Excess insurance policy(ies)to
meet the"Minimum Limits of Insurance,"this insurance policy(ies)shall"follow form"and afford no less coverage than the
primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and
non-contributory basis for the benefit of the CITY,its officers,officials,employees,agents and volunteers.
d. DEDUCTIBLES AND SELF-INSURED RETENTIONS. COMPANY shall be responsible for payment of any deductibles
contained in any insurance policy(ies)required herein and COMPANY shall also be responsible for payment of any self-insured
retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance,and approved by,the
CITY'S Risk Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her designee,either:
(1) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers,officials,
employees,agents and volunteers;or
(2) COMPANY shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or his/her designee, guaranteeing
payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be
responsible for the payment of any deductibles or self-insured retentions.
e. OTHER INSURANCE PROVISIONS/ENDORSEMENTS.
(1) The General Liability and Automobile Liability insurance policies are to contain,or be endorsed to contain,the following
provisions:
(a) CITY, its officers,officials, employees,agents and volunteers are to be covered as additional insureds.COMPANY
shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form
CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company
endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.
7
Benevate Inc.&City of Fresno,CA-CORE SAAS Agreement
(b) The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers,officials,
employees,agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional Insured.
(c) For any claims relating to this Agreement,COMPANY'S insurance coverage shall be primary insurance with respect
to the CITY,its officers,officials,employees,agents and volunteers. Any insurance or self-insurance maintained by
the CITY, its officers, officials, employees, agents and volunteers shall be excess of COMPANY'S insurance and
shall not contribute with it. COMPANY shall establish primary and non-contributory status by using ISO Form CG
20 0104 13 or by an executed manuscript insurance company endorsement that provides primary and non contributory
status as broad as that contained in ISO Form CG 20 0104 13.
(2) The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the following provision:
COMPANY and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents
and volunteers.
(3) If the Technology and Professional Liability insurance policy(ies)are written on a claims-made form:
(a) The retroactive date must be shown,and must be before the effective date of the Agreement or the commencement of
work by COMPANY.
(b) Insurance must be maintained and evidence of insurance must be provided for at least five(5)years after completion
of the Agreement work or termination of the Agreement,whichever occurs first,or,in the alternative,the policy shall
be endorsed to provide not less than a five(5)year discovery period.
(c) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive
date prior to the effective date of the Agreement or the commencement of work by COMPANY, COMPANY must
purchase "extended reporting" coverage for a minimum of five (5) years completion of the Agreement work or
termination of the Agreement,whichever occurs first.
(d) A copy of the claims reporting requirements must be submitted to CITY for review.
(e) These requirements shall survive expiration or termination of the Agreement.
(4) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled,non-renewed,
reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt
requested, has been given to CITY. COMPANY is also responsible for providing written notice to the CITY under the
same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or
reduction in coverage or in limits,COMPANY shall furnish CITY with a new certificate and applicable endorsements for
such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, COMPANY shall
provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15)
calendar days prior to the expiration date of the expiring policy.
(5) With regard to General Commercial Liability and Commercial Automobile Liability,should any of these policies provide
that the defense costs are paid within the Limits of Liability,thereby reducing the available limits by defense costs,then
the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(6) The fact that insurance is obtained by COMPANY shall not be deemed to release or diminish the liability of COMPANY,
including,without limitation,liability under the indemnity provisions of this Agreement.The policy limits do not act as a
limitation upon the amount of indemnification to be provided by COMPANY. Approval or purchase of any insurance
contracts or policies shall in no way relieve from liability nor limit the liability of COMPANY, its principals, officers,
agents, employees, persons under the supervision of COMPANY, vendors, suppliers, invitees, consultants, sub-
contractors,or anyone employed directly or indirectly by any of them.
(7) SUBCONTRACTORS - If COMPANY subcontracts any or all of the services to be performed under this Agreement,
COMPANY shall require,at the discretion of the CITY Risk Manager or designee,subcontractor(s)to enter into a separate
8
Benevate Inc.&,City of Fresno,CA-CORE SAAS Agreement
Side Agreement with the City to provide required indemnification and insurance protection. Any required Side
Agreement(s)and associated insurance documents for the subcontractor muss be reviewed and preapproved by CITY Risk
Manager or designee. If no Side Agreement is required,COMPANY will be solely responsible For ensuring that it's
subcontractor maintain insurance coverage at levels no less than those required by applicable law and is customary in the
relevant industry.
f. VERIFICATION OF COVERAGE
(1) COMPANY shall furnish CITY with all certificate(s)and applicable endorsements effecting coverage required hereunder.
All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her
designee prior to CITY'S execution of the Agreement and before work commences. All non-ISO endorsements amending
policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY.COMPANY shall
immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This
requirement shall survive expiration or termination of this Agreement.
11. DISPUTE RESOLUTION
a. With the exception of actions for injunctive relief for actions arising under the Confidentiality provisions of Section 3 of this
Agreement,the Parties intend that any and every dispute by and between them.including but not limited to any dispute arising
out of or relating to this Agreement or the breach,termination,enforcement,interpretation or validity thereof,be resolved first
by resorting to mediation, to be conducted in a mutually agreeable location in accordance with the laws of the State of
California.
12. NOTICE
a. Any notice required or permitted by this Agreement shall be in writing and shall be deemed suffieient when delivered (a)
personally or by overnight courier.(b) sent by email,or(c) Forty-eight(48) hours after being deposited in the U.S_ mail as
certified or registered mail with postage prepaid.addressed to the party to be notified at such party's address or email address
as set forth in this section.E-mail is the preferred method of notice.Any change of address,e-mail address,telephone number.
or person to receive notice shall be made by notice given to the other Party.
b. Addresses. Subject to change pursuant to this Section above,the addresses for notices are as follows:
For the Company:
Jason Rusnak
Benevate,Inc.(dba Neighborly Software)
3423 Piedmont Rd,NE
Atlanta,GA 30305
Phone: 702-864-7231
Email:Jason Rusnak(u:Nei hb mlv5ollwarc.com
Sarah Bohentin
Benevate, Inc.
Phone: 850-363-1717
Email:Sarai►.Bohentinrr�Nei hborlvSoft►vare.com
For the Customer:
Phil Skei
City of Fresno
2600 Fresno Street,Room 3065
Fresno,CA 93725
Phone: 559-621-8012
Email:Phil.Skeirr?Fresno.po
9
Benevate Inc.&City of Fresno,CA-CORE SAAS Agreement
Karen Jenks
City of Fresno
2600 Fresno Street,Room 3065
Fresno,CA 93725
Phone:559-621-8507
13. MISCELLANEOUS
a. Sevcrability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or
eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and
enforceable.
b. Waivers.No waiver of any provision of this Agreement or consent to any action shall constitute a waiver of any other provision
of this Agreement or consent to any other action. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a future waiver.Any provision of this Agreement may be waived only with the written consent of
the Parties.Company may use Customer's name and logo in a list of customers section on its website.
c. Entire Agreement&Amendments.This Agreement is the complete and exclusive statement of the mutual understanding off the
parties and supersedes and cancels all previous written and oral agreements,communications and other understandings relating
to the subject matter of this Agreement.and that all waivers and modifications must be in a writing signed by both parties.
except as otherwise provided herein.
d. Assignment.This Agreement is not assignable,transferable,or sub-licensable by either Party without the other Parties prior
written consent,except as such assignment,transfer or sublicense is in connection with a merger,acquisition,or similar change
of control event.
e. Relationship.No agency,partnership,joint venture,or employment is created as a result of this Agreement and the Parties do
not have any authority of any kind to bind the other Party in any respect whatsoever.
f. force Majcure.Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations
hereunder(except for the payment of amounts due)to the extent caused by strikes,shortages,riots, insurrection.fires. flood.
storm,explosions,pandemics,acts or God,terror,war.governmental action,labor conditions,earthquakes.material shortages
or any other cause which is beyond the reasonable control of such party. Upon an occurrence of an event or force majcure,
Company cannot ensure uninterrupted or error free service or access to the Software or Services and there may be periods
where access is delayed. limited or unavailable.Company shall use commercially reasonable efforts to provide the Software
or Services to Customer in accordance with its Business Continuity and Disaster Recovery Plan a copy or which will be
provided upon written request.
g. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of California
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK—SIGNATURE PAGE FOLLOWS
10
SIGNATURE PAGE
CITY OF FRESNO, BENEVATE, INC., DBA NEIGHBORLY
A California municipa corporation SOFTWARE, a Delaware Corporation
By: By: ��°D eb_k
Gea g anne A. White J. Jason Rusnak
City'Manager President
By: Mike Lee(Nov 16,202310:35 E5T1
APPROVED AS TO FORM:
ANDREW JAN Name: Michael Lee
City
Title: Chief Financial Officer
By: Ith 71V (If corporation or LLC., CFO,
randon M. Collet Date Treasurer, Secretary or Assistant
Supervising Deputy City Attorney Secretary)
ATTEST: REVIEWED BY:
TODD STERMER, CMC
City Z
By:
SttSp[y1 PC- Date
Deputy
Addresses:
CITY: Benevate, Inc., dba Neighborly Software
City of Fresno Attention: J. Jason Rusnak
Attention: Philip Skei President
Assistant Director, Planning and 3423 Piedmont Road NE
Development Department Atlanta, GA 30305
2600 Fresno Street, Room Phone: (702) 864-7231
Fresno, CA 93721 E-mail:
Phone: (559) 621-8012 Jason.Rusnak@NeighborlySoftware.com
E-mail: Phil.Skei@Fresno.gov
11
Benevate Inc.&City of Fresno,CA-CORE SAAS Agreement
EXHIBIT A
Service Level Terms
This Exhibit A outlines the Company's commitments to provide Support Services and problem resolution regarding
the performance of the Software and/or Services.
1. Definitions.
a. "Error"means a failure of the Software to perform in accordance with the Documentation, resulting in the
inability to use,or material restriction in the use of,the Software.
b. "Scheduled Downtime"means any period of time during which the Software or Services are unavailable due
to the Company's planned maintenance and support of the Software or Services. Scheduled Downtime is
excluded from the 99.5%Service Availability calculation.
c. "Support Services" means technical support assistance provided by Company personnel to Customer's
designated administrators for problem resolution,bug reporting,and/or technical assistance.
d. "Unscheduled Downtime" means any time the Software is not available due to an event or circumstance
excluding Scheduled Downtime or Force Majeure and the amount of time required by Company to resolve
or provide a work around for the failure of any documented feature required to complete a primary function
of the Software in accordance with the Documentation.
e. "Update" means any error correction, bug fix, patch, enhancement, improvement, update, upgrade, new
version,release,revision or other modification to the Software or Services provided or made available by the
Company pursuant to the Agreement, including, without limitation, any update designed, intended, or
necessary to make the Software,Services,or Customer's use thereof compliant with applicable law.
2. Service Availability.
a. Company will use commercially reasonable efforts to maintain the availability of the Software to the
Customer at 99.5%. All Updates will be completed outside of standard business hours (same as Support
Hours). Notification of Updates will not be provided unless downtime is expected. If major Updates are
required during standard business hours due to necessity,Company will provide notification to Customer as
soon as reasonably possible.Updates during Scheduled Downtime and are excluded from the 99.5%Service
Availability calculation.
3. Technical Support.
a. Availability. With the exclusion of Federal Holidays,Technical Support is available from 8:00 a.m.to 8:00
p.m.EST,Monday-Friday.("Support Hours").
b. Procedure. Customer must initiate a helpdesk ticket during Support Hours by sending an email to
support@neighborlysoftware.com.Company will use commercially reasonable efforts to respond to all Help
tickets in the manner set forth in Paragraph 4.
c. Conditions for Providing Support.Company's obligation to provide Software or Services in accordance with
the stated Service Availability is conditioned on Customer providing Company with sufficient information
and resources to correct the Error,as well as access to the personnel, hardware, and any additional systems
involved in discovering the Error.
4. Ticket Resolution.Company will use all commercially reasonable efforts to resolve support tickets in the process
described below.Response metrics are based on issues being reported during Support Hours.
a. Standard Ticket: Issue does not significantly impact the operation of the software or there is a reasonable
12
Benevate Inc. &,City of Fresno,CA-CORE SAAS Agreement
workaround available.
(i) Response Metric: Company will use commercially reasonable efforts to respond and resolve all
Standard tickets within eight(8) business hours of notification.
b. Priority Ticket: Software is usable,but some features(not critical to operations)are unavailable.
(i) Responsc Metric: Company will use commercially reasonable efforts to respond to all Priority tickets
within two(2)hours and resolve Priority tickets within six(6)business hours of notification.
c. Emergency 'Picket: Issue has rendered software unavailable or unusable, resulting in a critical impact on
business operations.The condition requires immediate resolution.
(i) Response Metric:Company will use commercially reasonable efforts to respond to all Emergency tickets
within one(1)hour and resolve Emergency tickets within two(2)business hours of notification.
5. Remedies. If Customer reasonably believes that Company has failed to achieve its Service Availability
commitments in any given month,the Company shall,following Customer's written request,provide a report that
contains true and correct information detailing Company's actual Service Availability performance. Customer
must have reported an issue with the Service Availability within the calendar month and must request the report
within ten (10) days of the end of the calendar month. The sole remedies for failure to meet the Service
Availability level of commitment is a service refund based on the following:
a. less than 99.5%but equal to or above 97%,Company shall provide Customer with a root cause analysis and
a written plan for improving Company's Service Availability to attain the 99.5% Service Availability and
Company shall promptly implement such plan;
b. between 96.9%and 93%,Company shall provide Customer with a service refund in an amount equal to 10%
of the prorated amount of the License Fees for one month;
c. between 92.9%and 90%,Company shall provide Customer with a service refund in an amount equal to 25%
of the prorated amount of the License Fees for one month;
d. Less than 90%, Company shall provide Customer with a service refund in an amount equal to 100%of the
prorated amount of the License Fees for one month;
6. Exclusions. Company shall have no liability for, and shall make no representations or warranties respecting
Service Availability or lack of availability of the Software due to: (1) outages caused by the failure of public
network or communications components; (2) outages caused by a Force Majeure event; (3) outages or Errors
caused by the Customer's use of any third-party hardware, software, and/or services; (4) Errors caused by the
individual Authorized User's desktop or browser software; (5) Errors caused by the Customer's negligence,
misconduct, hardware malfunction, or other causes beyond the reasonable control of the Company; and/or(6)
Customer has not paid License Fees under the Agreement when due.
13
Benevate Inc. &City of Fresno,CA-CORE SAAS Agreement
EXHIBIT B
Sample Termination of Services and Data Destruction Agreement
This Termination of Services and Final Data Destruction Agreement is made as of[Effective Date],by and between
Benevate, Inc. d/b/a Neighborly Software, a Delaware corporation (the "Qom and [Full Legal Name] (the
"Customer"),collectively referred to as the"Parties."
Pursuant to the Software as a Service Agreement,attached hereto as Exhibit"A"(referred to as the"Agreement"),the
Company has housed the Customer Data(defined as any non-public,personal information provided by the Customer
to the Company to enable the provision of Services).
1. The parties agreed to terminate the Agreement as of[Date](Termination Date)and acknowledge and agree to
the terms provided herein.
a. Portal Disabled. The Company disabled the Customer's portal website on the Termination Date,
restricting Customer's ability to insert or alter any data in preparation for the final data extraction.
b. Final Extraction of Customer Data. Company completed a final extraction of the Customer Data and
provided said data to the Customer on [Date] Final Extraction Date via the Secure File Transfer
Protocol(SFTP).
c. Loss of Access. The Customer shall continue to have access to the Customer Data via the Secure File
Transfer Protocol(SFTP)until[Date],thirty(30)days from the Final Extraction Date.
d. Customer Responsibility,. The Customer is solely responsible for retrieving and storing the data
provided via the SFTP within this thirty (30)day period. If the Customer fails to retrieve and store the
data,there is no recourse as the data will have been permanently deleted in accordance with subsection
(e).
e. Destruction of Data.The Customer Data will be permanently deleted by the Company on[Date],forty-
five(45)days from the Final Extraction Date.
2. Customer Acknowledgment.The Customer acknowledges and agrees that the Company has no obligations
whatsoever with regard to the Customer Data following the final destruction of the data as referenced above.
The parties have executed this Termination of Services and Final Data Destruction Agreement as of the date first
above written.
14