HomeMy WebLinkAboutBENDABLE LABS, INC.INSURANCE NOT ON FILE
WORK MAY NOT PROCEED
CLERK OF COUNCIL
DATE:
N-2023-006
8� 1
61fw 3nPARTICIPATION SERVICES AGREEMENT
(Pag) LAv) This PARTICIPATION SERVICES AGREEMENT ("Agreement") is entered into as of Llanuary 1, 2023] ("Effective
Date") by and between Bendable Labs, Inc. a Ldesign and research consultancy_j with its place of business at 328 North
r) Mansfield Ave, Las Angeles, CA 90036, and the City of Santa Ana ("Participant"), a charter city and municipal corporation
<14 organized and existing under the Constitution and laws of the State of California with its place of business at 20 Civic Center
cv Plaza, Santa Ana, CA 92702 (each a "party" and together, the "parties").
�— RECITALS
c� A. BENDABLE LABS, INC. operates a product named "Bendable" promoting "lifelong learning". Bendable is deployed by
a library to end users in its community. Bendable can include virtual and physical elements, including a digital lifelong
learning SaaS platform and physical assets that can be used in library branches or other in -person learning centers to
promote use of Bendable.
B. Participant desires to deploy Bendable in its library service area. Participant desires to receive from BENDABLE LABS,
INC. certain consulting services, professional services, the Bendable platform and/or other deliverables in furtherance of
deploying Bendable in its community.
In consideration of the above, the mutual covenants and agreements set forth below, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, BENDABLE LABS, INC. and Participant agree as follows:
1. Definitions
1.1 "Acceptable Use Policy" means BENDABLE LABS, INC.'s policy of acceptable and unacceptable uses of the
Services, as updated from time to time.
1.2 "Administrative Users" means Participant and/or Participant's employees, subcontractors and/or agents who are
authorized by Participant to access and use the Subscription Services for administrative purposes, and who have been
supplied access credentials for such purpose.
1.3 "Affiliate" means any person or entity that Controls, is Controlled by, or is under common Control with a party.
"Control" (including its correlative form "Controlled") means the power to direct the management and policies of
an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
1.4 "Agreement" means this Agreement, including any exhibits, schedules, amendments and other related documents
incorporated by reference herein, Acceptable Use Policy, and any and all Ordering Documents hereto.
1.5 `Bendable" means the product operated by BENDABLE LABS, INC. to promote lifelong learning.
1.6 "Bendable Platform" means the Bendable digital lifelong learning SaaS platform, including software, hardware,
APIs, databases and network, and any enhancements, improvements, bug fixes, updates, upgrades, modifications to
and derivative works of any part thereof.
1.7 "Bendable Property" means: (i) the Bendable Platform; (ii) End User Data; (iii) BENDABLE LABS, INC. and/or
Bendable trademarks, service marks, trade names, designs, logos and slogans, and all goodwill associated therewith,
whether or not registered; (iv) Documentation; (v) Deliverables; (vi) copy, graphics, images, videos, documents,
content and/or other works of authorship, whether or not protected by copyright, associated with Bendable; (vii)
Bendable BENDABLE LABS, INC. Confidential Information; and (viii) any and all Intellectual Property Rights
relating to (i)-(vii).
1.8 "Deliverables" means the results and proceeds of Professional Services expressly set forth in an Ordering Document.
Deliverables may include reports, documents, templates, posters and other Bendable -related assets.
1.9 "Documentation" means the user guides, training materials, white papers and/or other documentation associated with
Bendable provided or made available by BENDABLE LABS, INC. in connection with this Agreement, as may be
updated from time to time by BENDABLE LABS, INC.
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1.10 "End User" means an individual that Participant allows to access and use the Bendable Platform.
1,11 "End User Data means information from an End User that can personally identify such End User, directly or
indirectly, and other data that can be reasonably linked to such information by BENDABLE LABS, INC.
1.12 "Intellectual Property Rights" mean current and future worldwide rights under patent law, copyright law, trade
secret law, trademark law, moral rights law, and other similar rights.
1.13 "Ordering Document" means a mutually signed ordering document for Services provided by or through BENDABLE
LABS, INC., which incorporates by reference the terms of this Agreement. Ordering Documents may include
statements of work and software subscription orders.
1.14 "Participant" means the library, city, county, state or other governmental entity that has entered into this Agreement
with BENDABLE LABS, INC.
1.15 "Participant Data" means the data, information and/or content provided, collected or generated by Participant and/or
End Users in connection with the Services under this Agreement, excluding End User Data.
1.16 "Participant Marks" means Participant's trade names, trademarks, service marks and logos.
1.17 "Professional Services" means consulting, training, implementation or other professional services that BENDABLE
LABS, INC. may perform or provide, as described in an Ordering Document.
1.18 "Services" means Subscription Services, Professional Services and Deliverables.
1.19 "Subscription Services" means the Bendable Platform and any other subscription -based service that is provided
directly by BENDABLE LABS, INC., as described in an Ordering Document.
1.20 "Updates" means bug fixes, patches, error corrections, modifications or revisions to the Subscription Services that
enhance existing performance. Updates exclude Upgrades.
1.21 "Upgrades" means new products, features, functionality or enhancements to the Subscription Services for which
BENDABLE LABS, INC. generally charges its customers a separate fee in addition to existing Subscription Services
fees.
2. Services
2.1 Cooperation. Participant shall familiarize themselves with the Bendable implementation activities described in the
Scope of Services and agree to collaborate with BENDABLE LABS, INC. in a timely manner so as to meet the
requirements of the project timeline.
2.2 Responsibility for Results. Participant acknowledges that it alone is responsible for the results obtained from its use
of the Services (including any Subscription Services) and participation in Bendable, including the usefulness,
completeness, accuracy and content of such results.
2.3 Maintaining Bendable's standards of quality. During the term of this Agreement, Participant agrees to maintain their
instance of Bendable in a way that adheres to the brand and style guidelines provided in Documentation and Training
sessions. BENDABLE LABS, INC. will provide editorial and technical services to support Participant's reasonable
attempt to adhere to these standards of quality. Participant shall commit and deploy sufficient staff, resources and
funding to successfully activate and support Bendable in its community.
3. Subscription Services
3.1 Access to Subscription Services. Subject to the terms and conditions of this Agreement, BENDABLE LABS, INC.
hereby grants to Participant a non-exclusive, royalty -free, fully paid, non-sublicensable, non -transferable, worldwide,
right and license to access and use the Subscription Services solely in providing access to lifelong learning to End
Users during the subscription term.
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3.2 Usage Restrictions. Participant will not, and will not permit any Administrative User or End User to: (i) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the
Subscription Services or make the Subscription Services available to any third party, other than as expressly permitted
hereunder; (ii) use the Subscription Services to violate any applicable law, rule or regulation; (iii) use the Subscription
Services to knowingly send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time
bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere
with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (iv)
intentionally interfere with or disrupt the integrity or performance of the Subscription Services; (v) attempt to gain
unauthorized access to the Subscription Services or its related systems or networks; (vi) use or knowingly permit
others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the
Subscription Services, except as expressly permitted hereunder; (vii) access the Subscription Services for the purpose
of building a competitive product or service; or (viii) copy, translate, create a derivative work of, reverse engineer,
reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to
discover any source code or modify the Subscription Services.
3.3 Environment. BENDABLE LABS, INC. will provide Participant online access to and use of the Subscription Services
via the Internet. The Subscription Services will be hosted on a server that is maintained by BENDABLE LABS, INC.
or its designated third party supplier or data center.
3.4 Subscription Services Changes. Access is limited to the version of the Subscription Services in BENDABLE LABS,
INC.'s production environment. BENDABLE LABS, INC. may regularly update the Subscription Services, and
reserves the right to discontinue, add and/or substitute features at any time. Updates will be made available to
Participant at no additional charge. BENDABLE LABS, INC. may make new applications, features or functionality
for the Subscription Services available from time to time, the use of which may be subject to specific terms and
conditions.
3.5 Participant Responsibilities. Participant shall: (a) access and use the Subscription Services in accordance with any
Acceptable Use Policy, this Agreement and all applicable laws, rules and regulations; (b) be responsible for any
Authorized User's and End User's compliance with any Acceptable Use Policy and this Agreement; (c) be responsible
for any consents and notices required to permit Participant's, Authorized User's and End User's use and receipt of the
Subscription Services; (d) be responsible for any consents and notices required for BENDABLE LABS, INC: s
accessing, storing, and processing of all Participant Data; (e) be responsible for the accuracy, quality and legality of
Participant Data and the means by which Participant acquired Participant Data; and (f) use commercially reasonable
efforts to prevent unauthorized access to or use of Subscription Services and content, and notify BENDABLE LABS,
INC. promptly of any unauthorized access or use.
3.6 Administrative Users. Participant may specify one or more Administrative Users who will have the rights to access
Administrative User accounts. Administrative User accounts may include certain features and functionality to manage
Subscription Services. Participant is responsible for; (a) maintaining the confidentiality of login credentials for
Administrative Users accounts; (b) designating those individuals who are authorized to access the Administrative User
accounts; and (c) ensuring that all activities that occur in connection with the Administrative User accounts comply
with this Agreement and applicable laws, rules and regulations.
3.7 Resources. Participant shall be responsible for procuring, installing and maintaining, at Participant's sole cost and
expense, all physical space, equipment, software and hardware at Participant's site or related facilities, and shall
provide BENDABLE LABS, INC, with access to Participant's facilities, systems and information as required by
BENDABLE LABS, INC. for purposes of deploying Bendable. Participant is solely responsible for obtaining and
maintaining at its own expense, all equipment needed to access the Subscription Services, including Internet access
and adequate bandwidth.
3.8 End User Support. Participant will, at its own expense, provide and manage End User support for Subscription
Services. Participant will use commercially reasonable efforts to resolve support issues before escalating them to
BENDABLE LABS, INC. If Participant cannot resolve a support issue, then Participant may escalate the issue to
BENDABLE LABS, INC. in accordance with any support process and protocols BENDABLE LABS, INC. may
establish.
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3.9 Third Party Providers. Participant may choose to include in or through Participant's deployment of Subscription
Services certain products, services and/or content offered by third -party providers (each, a "Third Party Provider").
Any relationship, exchange of data or other interaction between Participant and a Third Party Provider, and/or any
purchase, download or use by Participant (or any Authorized User or End User) of any product or service offered by
a Third Party Provider, is solely between Participant and such Third Party Provider, and may require Participant (or
any Authorized User or End User) to agree to a Third Party Provider's terms and conditions and/or obtain and pay for
licenses thereto. Regardless of any recommendation by BENDABLE LABS, INC. or use of any Third Party Provider's
products or services, BENDABLE LABS, INC. does not make any representations, warranties or guarantees with
respect to such Third Party Provider or any of its products or services. Further, BENDABLE LABS, INC. cannot
guarantee that use of such Third Party Provider's products or services will always be provided during the Term. While
BENDABLE LABS, INC. may rely on data or information provided or generated by such Third Party Provider's
products or services in the course of providing the Services, Participant hereby acknowledges that BENDABLE
LABS, INC. specifically does not warrant the accuracy, reliability or completeness of any such data and information.
Participant acknowledges and agrees that BENDABLE LABS, INC. is not liable to Participant or any other party for
any Third Party Provider and its products and services. Accordingly, Participant hereby releases and holds harmless
BENDABLE LABS, INC. from and against any and all claims, losses, liability, damages, expenses, costs (including,
but not limited to, reasonable attorneys' fees) and/or actions arising from any Third Party Provider and its products
and services.
3.10 Future Functionality. Participant agrees that the commitments entered into under this Agreement are not contingent
on the delivery of any future features, functionality or other capability, or dependent on any oral or written public
comments made by BENDABLE LABS, INC. regarding future features, functionality or other capability.
3.11 Compliance with Law/Order. BENDABLE LABS, INC. reserves the right to use or disclose information, including
Participant Data or Participant's Confidential Information, if required by law or if BENDABLE LABS, INC.
reasonably believes that use or disclosure is necessary to protect BENDABLE LABS, INC.'s rights and/or to comply
with ajudicial proceeding, court order, or legal process, provided that BENDABLE LABS, INC. shall promptly notify
the Participant of such disclosure so that Participant may seek an appropriate protective order or other relief.
BENDABLE LABS, INC, further agrees to cooperate with and not to oppose any effort by the Participant to resist or
narrow such disclosure or to seek a protective order or other appropriate remedy.
4. Proprietary Rights
4.1 Bendable Property. BENDABLE LABS, INC. is and shall be the sole and exclusive owner of all Bendable Property,
including all Intellectual Property Rights thereto. Except as expressly set forth in this Agreement, this Agreement does
not grant to Participant (or any other party) any rights, implied or otherwise, to any Bendable Property. Any use of
Bendable Property by Participant, as permitted under this Agreement, will inure to the benefit of BENDABLE LABS,
INC.
4.2 Participant Data; Participant Marks. As between BENDABLE LABS, INC. and Participant, Participant owns all right,
title and interest in and to all Participant Data and Participant Marks. Participant represents that it has valid title or
license to all Participant Data and Participant Marks, and it has all rights necessary to grant BENDABLE LABS, INC.
the rights set forth in this Agreement. Participant hereby represents and warrants that Participant Data will not contain
any content that is obscene, libelous, slanderous or otherwise defamatory, false or misleading or that violates any
copyright, right of privacy or publicity or other right of any person or party. BENDABLE LABS, INC. reserves the
right to remove Participant Data containing any information that BENDABLE LABS, INC. determines in its sole
discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise
objectionable or that violate any party's intellectual property or this Agreement. Participant grants BENDABLE
LABS, INC. and its Affiliates a worldwide, non-exclusive, royalty -free, fully paid, sublicensable, transferable license
to use, host, copy, distribute, perform, transmit, display and prepare derivative works of Participant Data and
Participant Marks in order to provide the Services and/or in connection with Participant's participation in Bendable.
4.3 Aggregate Data. Notwithstanding anything to the contrary, BENDABLE LABS, INC. 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, information concerning Participant Data and data derived therefrom),
and BENDABLE LABS, INC. will be free (during and after the term hereof) to (i) use such information and data to
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improve and enhance the Services, for other development, diagnostic and corrective purposes in connection with the
Services and other BENDABLE LABS, INC. offerings, and for any other lawful purpose, and (ii) disclose such
Participant data in aggregate or other de -identified form in connection with its business and any other lawful purpose.
4.4 Feedback. If Participant, Authorized Users or End Users provide BENDABLE LABS, INC. or its Affiliates with any
suggestions, enhancement requests, recommendations, input or other feedback relating to any of the Services or, in
general, Bendable ("Feedback"), Participant, on behalf of itself, Authorized Users and/or End Users, as applicable,
shall and hereby does grant to BENDABLE LABS, INC. and its Affiliates a worldwide, royalty -free, fully paid,
transferable, sublicenseable, irrevocable, perpetual, unrestricted license to adapt, modify, create derivative works of,
copy, offer to sell, sell, perform, display, distribute, import, and otherwise use the Feedback for any purpose, including
commercial uses, and/or incorporate Feedback into Bendable, the Services, and/or any other product or service.
4.5 Potential Infrineement. If BENDABLE LABS, INC. reasonably believes any of the Services infringe a third party's
Intellectual Property Rights, then BENDABLE LABS, INC. may, as determined by BENDABLE LABS, INC., take
one or more of the following actions: (a) obtain the right for Participant, at BENDABLE LABS, INC.'s expense, to
continue using the impacted Services; (b) provide a non -infringing functionally equivalent replacement; (c) attempt
to modify the impacted Services so that they no longer infringe; and/or (d) if none of the foregoing are commercially
reasonable, terminate provision of the impacted Services.
5. Confidentiality
5.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party
("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as
confidential or that reasonably should be understood to be confidential given the nature of the information and the
circumstances of disclosure. Without limitation, Confidential Information of BENDABLE LABS, INC. includes
marketing plans, technology and technical information, product plans and designs, and business processes disclosed
by BENDABLE LABS, INC. Confidential Information does not include any information that (i) is or becomes
generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential
Information.
5.2 Protection of Confidential Information. The Receiving Party will: (i) protect the Disclosing Party's Confidential
Information with the same standard of care it uses to protect its own Confidential Information, but at a minimum,
reasonable care; and (ii) limit access to Confidential Information of the Disclosing Party to its and its Affiliates'
employees and contractors who need access for purposes consistent with this Agreement and who have agreed in
writing to keep it confidential.
5.3 Required Disclosure. The Receiving Party may disclose the Disclosing Party's Confidential Information when and to
the extent required by law, regulation or court order, but only after it, if legally permissible: (i) uses commercially
reasonable efforts to notify the Disclosing Party; and (ii) gives the Disclosing Party an opportunity to challenge the
disclosure.
5.4 Equitable Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate
and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled,
in addition to any other available remedies, to seek immediate injunctive and other equitable relief without the
necessity of showing actual monetary damages.
6. Warranties; Disclaimers
6.1 Warranties. Each party represents and warrants that it has validly entered into this Agreement and has the legal
authority to do so. BENDABLE LABS, INC. represents and warrants that BENDABLE LABS, INC. will comply
with all laws, rules and regulations applicable to its provision of Services to Participant. Participant represents and
warrants that: (a) Participant will comply with all laws, rules and regulations applicable to (i) Participant's use of
Services, (ii) Participant's provision of Services to End Users, and (iii) Participant's deployment of, and participation
in, Bendable; and (b) Participant's use of the Services will not infringe, or constitute an infringement or
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misappropriation of, any third party Intellectual Property Rights or other proprietary rights.
6.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES
ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND
EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NONINFRINGEMENT, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
BENDABLE, THE BENDABLE PLATFORM AND OTHER SERVICES ARE PROVIDED TO PARTICIPANT
"AS IS", WITHOUT ANY REPRESENTATIONS AND WARRANTIES. BENDABLE LABS, INC. MAKES NO
WARRANTY THAT BENDABLE, THE BENDABLE PLATFORM AND ANY OTHER SERVICES WILL BE
UNINTERRUPTED OR ERROR -FREE. IN ADDITION, BENDABLE LABS, INC. DOES NOT MAINTAIN OR
CONTROL THIRD -PARTY CONTENT AND SERVICES THAT MAY BE INTERCONNECTED WITH OR
MADE AVAILABLE AS PART OF THE BENDABLE PLATFORM, AND BENDABLE LABS, INC. IS NOT
RESPONSIBLE FOR THE AVAILABILITY, COMPLETENESS, TIMELINESS, FACTUAL ACCURACY, OR
NON -INFRINGEMENT OF SUCH CONTENT AND SERVICES.
7. Indemnification
7.1 Indemnification by Participant. Participant will indemnify, defend and hold harmless BENDABLE LABS, INC.,
BENDABLE LABS, INC.'s Affiliates, and each of their respective officers, directors, employees, shareholders,
agents, successors and assigns (the "BENDABLE LABS, INC. Parties"), from and against any damages, liabilities,
costs and expenses (including reasonable attorney's fees) arising out of any third party claim ("Claims"): (a) alleging
that any Participant Data, or Participant's use (or use by an Authorized User or End User) of any of the Services,
infringes or misappropriates a third party's Intellectual Property Rights, proprietary or personal rights or violates
applicable law, rule or regulation; (b) arising from Participant's (or an Authorized User's or End User's) breach of
this Agreement, including the Acceptable Use Policy and/or any representation or warranty herein; and/or (c) by a
Third Party Provider arising from Participant (or an Authorized User or End User),
8. Limitation of Liability
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL
BENDABLE LABS, INC.'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE AMOUNTS PAID OR PAYABLE BY PARTICIPANT IN THE EIGHTEEN (18) MONTHS
PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM.
8.2 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO
BUSINESS REPUTATION, DATA LOSS, INTERRUPTION OF BUSINESS, LOST BUSINESS OR LOST
PROFITS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIS AGREEMENT,
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Exclusions to the Limitations of Liability. Notwithstanding anything to the contrary contained herein, no limitations
of liability in this Section 8 shall apply with respect to damages arising from a parry's gross negligence or intentional
misconduct, or arising from Participant's obligations under Sections 5 and 7 of this Agreement.
9. Term and Termination
9.1 Term. This Agreement will commence on the Effective Date and will govern the relationship of BENDABLE LABS,
INC, and Participant for 18 months.
9.2 Termination for Convenience. Participant may request termination for convenience at any time upon thirty (30) days'
prior written notice to BENDABLE LABS, INC. Participant must cease use of the applicable Services. BENDABLE
LABS, INC. may terminate this Agreement for convenience at any time upon thirty (30) days' prior written notice to
Participant.
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9.3 Termination for Breach. Either Party may immediately terminate this Agreement if: (i) any breach of this Agreement
that is not cured by the breaching party within thirty (30) calendar days of receipt of a notice informing the breaching
party of the breach; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings
and the proceedings are not dismissed within 60 days.
9.4 Termination by BENDABLE LABS, INC. BENDABLE LABS, INC. may terminate this Agreement upon notice to
Participant in the event: (i) Participant has not made reasonable efforts to comply with Bendable's standards of quality;
and/or (ii) BENDABLE LABS, INC. stops offering Bendable and/or any Services comprising Bendable.
9.5 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement: (i) all rights and licenses
granted by BENDABLE LABS, INC. to Participant shall immediately terminate, and Participant shall cease any
further use of the Bendable Platform and any other Bendable Property; (ii) BENDABLE LABS, INC. shall have no
further obligation to provide Services; (iii) Participant's access to the Bendable shall cease; (iv) Participant shall return
or, upon BENDABLE LABS, INC.'s request permanently delete/destroy, any Bendable Property under Participant's
reasonable control, and certify in writing to BENDABLE LABS, INC, that it has done so.
9.6 Suspension of Services by BENDABLE LABS, INC. In addition to those conditions, rights, and remedies set forth in
this Agreement, BENDABLE LABS, INC. may suspend access to Services (by Participant, any Administrative User
or End User, or otherwise) under any Ordering Document:; (i) if Participant's use of Services violates the Agreement
and/or any applicable law, rule or regulation; (ii) if use of the Services degrades performance of the Services; (iii) to
protect the Bendable Platform and/or any of the Services from unauthorized access or use; and/or (iv) to protect
BENDABLE LABS, INC. from any undue liability. If reasonable under the circumstances, BENDABLE LABS, INC.
may attempt to provide notice (which may be by email) of such suspension and work in good faith with Participant to
help Participant resolve the issue causing the suspension.
9.7 Survival. The terms contained in Sections 3.7, 3.11, 4, 5, 7, 18, 9, and 10, and any other terms that either expressly or
by their nature should survive, shall survive any termination of this Agreement, and shall continue in full force and
effect.
10. General
10.1 Use of Service Providers. BENDABLE LABS, INC. may use the services of any service providers, subcontractors, or
other third parties to perform any Services covered under this Agreement.
10.2 Export Control Laws. The parties shall each comply with all United States and foreign export control laws and
regulations applicable to the exercise of its rights and/or provision of Services under this Agreement.
10.3 Publicity. Participant may not issue press releases or make any public statements relating to this Agreement and/or
Bendable without BENDABLE LABS, INC.'s prior written consent in each instance, which consent will not be
unreasonably withheld. As a participating Bendable library, BENDABLE LABS, INC, may make use of Participant
Marks and content in any of BENDABLE LABS, INC.'s marketing, promotional and other content and materials
(including press releases, public statements and case studies).
10.4 Government Entities. If Participant is the U.S. Government or any agency or instrumentality thereof (collectively,
"Government"), then any software provided pursuant to this Agreement is delivered with RESTRICTED RIGHTS
only. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-19
Commercial Computer Software —Restricted Rights or DFAR 252.227-7013 Rights in Technical Data and Computer
Software.
10.5 Complete Agreement. This Agreement is the entire agreement between the parties relating to the subject matter hereof
and supersedes all prior or contemporaneous understandings, agreements and communications with respect to the
subject matter hereof. Notwithstanding any language to the contrary therein, no terms or conditions stated in
Participant's invoice, purchase order or other similar documentation will be incorporated into or form any part of this
Agreement, and all such terms or conditions will be null and void. No modification, amendment, or waiver of any
provision of this Agreement will be effective unless in writing and signed by both parties.
10.6 Conflict. In the event of conflict or ambiguity between any of the provisions in this Agreement and the Scope of
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Services, the terms of the Scope of Services will prevail, but only with respect to the specific Services purchased under
that Scope of Services and only to the extent such Scope of Services expressly references the conflicting provision in
this Agreement.
10.7 Waiver: Severability. No failure or delay by either party to enforce any provision of this Agreement will constitute a
waiver of that provision or affect such party's right to require the future performance thereof. If any provision of this
Agreement is held unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum
extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement will continue in
full force and effect.
10.8 Force Majeure. No delay, failure or default in performance of any obligation of either party hereunder will constitute
a breach of this Agreement to the extent caused by Force Majeure. The term "Force Majeure" will be defined to
include acts of terrorism, fires, earthquakes, or other casualties or accidents, acts of God, severe weather conditions,
strikes or labor disputes, war or other violence, any law, order proclamation, regulation, ordinance, demand or
requirement of any governmental agency, civil unrest, global pandemics (such as COVID19, SARS, etc.), or any other
event beyond the reasonable control of a party.
10.9 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other
parry's express written consent, except that BENDABLE LABS, INC. may assign this Agreement, in whole or in part,
without Participant's consent, to an Affiliate or a successor to all or substantially all of BENDABLE LABS, INC.'s
assets or business, through a sale or merger, to which this Agreement relates. This Agreement will be binding upon
and inure to the benefit of the respective successors and assigns of the parties. Any purported assignment of rights or
delegation of duties in violation of this Section is void.
10.10 No Third Party Beneficiaries. There are no third -party beneficiaries under this Agreement.
10.11 Governing Law. This Agreement is governed by the laws of the State of California, without reference to its conflict
of law principles or to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby
irrevocably consent to the exclusive jurisdiction of the Federal and State courts located in Los Angeles, California, in
any action arising out of or relating to this Agreement.
10.12 Notices. Notices under the Agreement must be in writing and sent by (i) first class postage prepaid mail, (ii)
internationally recognized delivery service, or (iii) except for notices of termination or breach, email. Notices must be
sent to the following addresses:
To BENDABLE LABS, INC.: 328 North Mansfield Ave, Los Angeles, CA 90036, attn.: [Sarah Zaner]; and
To Participant: at the address listed.
Notices will be deemed given upon confirmation of receipt, including by means of an automatic read receipt for email
notice, or three (3) business days after mailing, whichever is earlier.
10.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument. Counterparts may be executed and delivered by
facsimile, pdf or other electronic signature and such documents will be treated as originals for all purposes.
10.14 Insurance. BENDABLE LABS, INC, shall procure and maintain, at its sole expense, the minimum insurance
requirements as described in Exhibit A to this Agreement.
[signatures on next page]
8 of
0001 Bendable Labs, Inc. Confidential
N-2023-006
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
Bendable Labs, Inc
By: Samh Zane,Jan 6, 202315:31 PS
Name: Sarah Zaner
Title: Co -president
Date: 1/6/2023
Norma Orozco V
Acting Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
BranTon Salvatierra
Deputy City Attorney
9of9
CITY OF SANTA ANA
Name:
Kristine Ridge
Title:
Date:
City Manager
REC/% TENDED APPROVAL:
Brian Sternberg K J
Executive Director,
Library Services Agency
0001 Bendable Labs, Inc. Confidential
EXHIBIT A
Exhibit A
Prior to undertaking performance of work under this Agreement, BENDABLE, INC. shall
procure and maintain for the duration of the contract insurance against claims for injuries to
persons or damages to property that may arise from or in connection with the performance of the
work hereunder and the results of that work by BENDABLE, INC., their agents, representatives,
employees or subcontractors.
a. Minimum Scope and Limit of Insurance
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an "occurrence" basis, including products and completed operations,
property damage, bodily injury and personal & advertising injury with limits no less
than $1,000,000 per occurrence. If a general aggregate limit applies, either the general
aggregatelimit shall apply separately to this proj ect/location (ISO CG 25 03 or 25 04)
or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
BENDABLE, INC. has no owned autos, hired, (Code 8) and non -owned autos (Code
9), with a limit no less than $1,000,000 per accident for bodily injury and property
damage.
3. Workers' Compensation: as required by the State of California, with Statutory Limits,
and Employer's Liability Insurance with limit of no less than $1,000,000 per accident
for bodily injury or disease.
4. Cyber Liability Insurance and/or Technology Professional Liability Errors &
Omissions Insurance: with limits not less than $2,000,000 per occurrence or claim,
$2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties
and obligations as is undertaken by BENDABLE, INC. in this agreement and shall
include, but not be limited to, claims involving seemity breach, system failure, data
recovery, business interruption, cyber extortion, social engineering, infringement of
intellectual property, including but not limited to infringement of copyright, trademark,
trade dress, invasion of privacy information, and alteration of electronic information.
The policy shall provide coverage for breach response costs, regulatory fines and
penalties as well as credit monitoring expenses.
5. Broader Coverage: if BENDABLE, INC. maintains broader coverage and/or higher
limits than the minimums shown above, the City requires and shall be entitled to the
broader coverage and/or the higher limits maintained by BENDABLE, INC.. Any
available insurance proceeds in excess of the specified minimum limits of insurance
and coverage shall be available to the City.
b. Other Insurance Provisions
1. Additional Insured Status: The City, its officers, officials, employees, and volunteers
are to be covered as additional insureds on the CGL policy with respect to liability
arising out of work or operations performed by or on behalf of BENDABLE, INC.
including materials, parts, or equipment furnished in connectionwith such work or
operations. General liability coverage can be provided in the form of an endorsement
to BENDABLE, INC.'s insurance (at least as broad as ISO Form CG 20 10 11 85 or if
notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20
38; and CG 2037 if a later edition is used).
2. Primary Coverage: For any claims related to this contract, BENDABLE, INC.'s
insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13
as respects the City, its officers, officials, employees, and volunteers. Any insurance
or self-insurance maintained by the City, its officers, officials, employees, or volunteers
shall be excess of BENDABLE, INC.'s insurance and shall not contribute with it.
3. Notice of Cancellation: Each insurance policy required above shall provide that
coverage shall not be canceled, except with notice to the City.
4. Waiver of Subrogation: BENDABLE, INC. hereby grants to City a waiver of any
right to subrogation that any insurer of said BENDABLE, INC, may acquire against
the City by virtue of the payment of any loss under such insurance. BENDABLE,
INC. agrees to obtain any endorsement that may be necessary to affect this waiverof
subrogation, but this provision applies regardless of whether or not the City has
received a waiver of subrogation endorsement from the insurer.
5. Self -Insured Retentions: Self -insured retentions must be declared to and approved by
the City. The City may require the BENDABLE, INC. to purchase coverage with a
lower retention or provide proof of ability to pay losses and related investigations,
claim administration, and defense expenses within the retention. The policy language
shall provide, or be endorsed to provide, that the self -insured retention may be satisfied
by either the named insured or City.
6. Acceptability of Insurers: Insurance is to be placed with insurers authorized to
conduct business in the state with a current A.M. Best's rating of no less than AXII,
unless otherwise acceptable to the City.
7. Claims Made Policies: If any of the required policies provide claims -made coverage:
The Retroactive Date must be shown, and must be before the date of the contract
or the beginning of contract work.
ii. Insurance must be maintained and evidence of insurance must be provided for
at least five (5) years after completion of the contract of work.
iii. If coverage is canceled or non -renewed, and not replaced with another clalms-
made policy form with a Retroactive Date prior to the contract effective date,
BENDABLE, INC, must purchase "extended reporting" coverage for a
minimum of five (5) years after completion of work.
8. Verification of Coverage: BENDABLE, INC. shall furnish the City with original
Certificates of Insurance including all required amendatory endorsements (or copies of
the applicable policy language effecting coverage requiredby this clause) and a copy of
the Declarations and Endorsement Page of the CGL policy listing all policy
endorsements to City before work begins. However, failure to obtain the required
documents prior to the work beginning shall not waive BENDABLE, INC.'s obligation
to provide them.
The City reserves the right to require complete, certified copies of all required insurance
policies,including endorsements required by these specifications, at any time.
9. Subcontractors: BENDABLE, INC. shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and BENDABLE, INC.
shall ensure that City is an additional insured on insurance required from
subcontractors.
10. Special Risks or Circumstances: City reserves the right to modify these requirements,
including limits, based on the nature of therisk, prior experience, insurer, coverage, or
other special circumstances.
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
Bendable Labs, Inc.
Name:
Project
N-2023-006
Number:
Project
Participation Services Agreement - Bendables
Name:
The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the
insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
EXPIRATION COI
TYPE OF INSURANCE POLICY NUMBER FILE NAME
DATE DATE
Automobile
Liability Insurance
AUTOMOBILE LIABILITY WAIVER 03/02/2024 03/09/2023 Release
Document_Bendable
Labs.pdf
COI - City of Santa
CYBER LIABILITY C4MA1245182CYBER2023 01/01/2024 03/11/2023
Ana.pdf
COI - City of Santa
GENERAL LIABILITY 6803W0805392342 01/01/2024 03/11/2023
Ana.pdf
WORKERS COMPENSATION AND COI - City of Santa
UB3W0827542342G 01/01/2024 03/11/2023
EMPLOYERS' LIABILITY Ana.pdf
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
3/10/2023 7:04 PM
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
Bendable Labs, Inc.
Name:
Project
N-2023-006
Number:
Project
Participation Services Agreement - Bendables
Name:
The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the
insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
EXPIRATION
TYPE OF INSURANCE POLICY NUMBER COI DATE FILE NAME
DATE
City of Santa
Ana, WOS,
20 Civic
AUTOMOBILE LIABILITY 6803W080539 01/01/2025 12/28/2023 Center Plaza,
Santa Ana,
CA,
92702.pdf
Bendable
Labs -
CYBER LIABILITY C4MA1245182CYBER2024 01/01/2025 12/28/2023
Renewal
COIs.pdf
City of Santa
Ana, WOS,
20 Civic
GENERAL LIABILITY 6803W080539 01/01/2025 12/28/2023 Center Plaza,
Santa Ana,
CA,
92702.pdf
City of Santa
Ana, WOS,
20 Civic
WORKERS COMPENSATION AND
UB3W082754 01/01/2025 12/28/2023 Center Plaza,
EMPLOYERS' LIABILITY
Santa Ana,
CA,
92702.pdf
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team 1/10/2024 11:58 AM