HomeMy WebLinkAboutGOVINVESTCity of Santa Ana
INSURANCE NJ ON FILE
WORK M PROCEED
F
j; ILERK OF COUNCIL SaaS Licensing Agreement
DATE-
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Attention: City of Santa Ana
Prepared by: Ted Price, CEO
September 7, 2016
Actuarial Services and Technology
Licensing Agreement
Paae 7
N-2016-144
City of Santa Ana
Summary of Services and Implementation
Contact:
Francisco Gutierrez, Executive Director
20 Civic Center Plaza (M 17)
P.O. Box 1988
Santa Ana, California 92702
(714)647-5420
fgutierrez@santa-ana. org
Services:
Service Capacity: Use of the Standard Pension Module of the Total Liability Calculator (the
"Service(s)").
Service Fees: $5,000, payable in advance subject to the terms of Section 4 herein.
Initial Term: Six months from Effective Date.
SERVICE AGREEMENT
This SaaS Services Agreement ("Agreement") is entered into on this 7"' day of September, 2016 (the
"Effective Date") between GovInvest, Inc. ("Company"), and the Customer listed above ("Customer").
This Agreement includes and incorporates the above Order Form, as well as the attached Terns and
Conditions and contains, among other things, warranty disclaimers, liability limitations and use
limitations. There shall be no force or effect to any different or additional terms of any purchase order,
confirmation or similar form, even if signed by the parties before or after the date hereof.
GovInvest Inc.
By: {�eirrua2 A� Tam woe tea. z,
Name;/ Jasmine Nachtigall-Fournier
Title: President _
Date: 9/7/2016
Approved ��asppto Form:
By: JRf i1L, 7 w �<–
Name: John M. Funk
Title: Assistant City Attorney
City o' eet na
By:
Name: D vid avazos _
Title: City Manager
Date: September 13, 2016
Attest:
[
-
Name
Name
Title:
.'
Maria D. Huizar
Clerk of the Council—
Recommended for Approval: _
By:
Name: Francisco Gutierrez
Title: Executive Director, Finance & Management Services Agency
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Licensing.Igreement
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TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to
provide Customer the Services in accordance with the Service Level Terms attached hereto as
Exhibit A. As part of the registration process, Customer will identify an administrative user name
and password for Customer's Company account. Company reserves the right to refuse
registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support
services in accordance with the terms set forth in Exhibit B.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise
attempt to discover the source code, object code or underlying structure, ideas, know-how or
algorithms relevant to the Services or any software, documentation or data related to or used to
provide the Services ("Software"); modify, translate, or create derivative works based on the
Services or any Software (except to the extent expressly permitted in writing by Company or
authorized within the Services); use the Services or any Software for timesharing or service
bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or
labels.
2.2 Further, Customer shall not export or re-export, either directly or indirectly, the Software or any
copies thereof in such manner as to violate the export laws and regulations of the United States or
any other applicable jurisdiction in effect from time to time (including, without limitation, when
such export or re-export requires an export license or other governmental approval without first
obtaining such license or approval). Without limiting the foregoing, Customer shall not permit
any third parties to access or use the Services in violation of any United States export embargo,
prohibition, or restriction.
2.3 Customer hereby agrees to indemnify and bold harmless Company against any damages, losses,
liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in
connection with any claim or action that arises from Customer's failure to comply with the terms
of this Agreement or otherwise from Customer's use of Services, except if attributable to
negligence or willful misconduct by Company. Although Company has no obligation to monitor
Customer's use of the Services, Company may do so. Company reserves the right, in its sole
discretion, and with reasonable notice to Customer, to prohibit or suspend Customer's use of the
Services, at any time Company believes such use to be in violation of this Agreement or otherwise
harmful to the Service.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services
needed to connect to, access or otherwise use the Services, including, without limitation,
moderns, hardware, servers, software, operating systems, networking, web servers and the like
(collectively, "Equipment"). Customer shall also be responsible for maintaining the security of
the Equipment, Customer account, passwords (including but not limited to administrative and
user passwords) and tiles, and for all uses of Customer account or the Equipment with or without
Customer's knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has
disclosed or may disclose business, technical or financial information relating to the Disclosing
Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party),
Proprietary Information of Company includes non-public information regarding features,
fimctionality and performance of the Service. Proprietary Information of Customer includes non -
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public data provided by Customer to Company to enable the provision of the Services
("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect. such
Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise
permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing
Party agrees that the foregoing shall not apply with respect to any information after five (5) years
following the disclosure thereof or any information that the Receiving Party can document (a) is
or becomes generally available to the public, without any action by, or involvement of, the
Receiving Party or (b) was in its possession or known by it prior to receipt from the Disclosing
Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was
independently developed without use of any Proprietary Information of the Disclosing Party or
(e) is required to be disclosed by law. The Receiving Party acknowledges that in the event of a
breach of Section 3.1 by the Receiving Party, substantial injury could result to the Disclosing
Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event
that the Receiving Party engages in, or threatens to engage in any act which violates Section 3. 1,
the Disclosing Party will be entitled, in addition to all other remedies which may be available to it
under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or
preliminary or permanent injunctions) and specific enforcement of the terms of Section 3.1. The
Disclosing Party will not be required to post a bond or other security in connection with the
granting of any such relief.
3.2 Company shall own and retain all right, title and interest in and to (a) the Services and Software,
together with all improvements, enhancements, modifications, changes, translations, compilation,
and derivative works thereto, (b) any software, applications, inventions or other technology
developed in connection with Implementation Services or support, (c) any analytics generated
through Customer's use of the Services, including but not limited to, any data, materials,
information, and reports ("Analytics") and (d) all intellectual property rights related to any of the
foregoing. Company hereby grants Customer a perpetual, royalty -free, non-exclusive, non-
transferable and non sublicensable license to access and use the Analytics.
3.3 Notwithstanding anything to the contrary, Company shall have the right 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 Inereof) to (i) use such information and data to improve and enhance the Services
and for other development, diagnostic and corrective purposes in connection with the Services
and other Company offerings, (ii) disclose such data solely in aggregate or other de -identified
form in connection with its business, and (iii) disclose, share, license, or resell Analytics to third
parties for consideration. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the
Services and Implementation Services in accordance with the terns therein (the "Fees"). If
Customer's use of the Services exceeds the Service Capacity set forth on the Order Form or
otherwise requires the payment of additional fees (per the terms of this Agreement), Customer
shall be billed for such usage and Customer agrees to pay the additional fees in the manner
provided herein. Company reserves the right to change the Fees or applicable charges and to
institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon
thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that
Company has billed Customer incorrectly, Customer must contact Company no later than 90 days
after the closing date on the first billing statement in which the error or problem appeared, in order
to receive an adjustment or credit. Inquiries should be directed to Company's customer support
department.
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City of Santa Ana
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued
in any given month must be received by Company thirty (30) days upon Customer's receipt of
the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any
outstanding balance, or die maximum permitted by law, whichever is lower, plus all expenses of
collection and may result in immediate termination of Service. Customer shall be responsible for
all taxes associated with Services other than U.S. taxes based on Company's net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, the Initial Term of this Agreement shall be for a
period specified in the Order Form (the "Initial Term"). The Initial Tenn of this Agreement maybe
extended for two additional periods each equal to the Initial Tenn (each, a "Renewal Tenn") by a
writing executed by Customer's City Manager and City Attorney, The Initial Term and the Renewal
Tenn are collectively referred to herein as the "Term."
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon
thirty (30) days' notice (or without notice in the case of nonpayment), if the other party materially
breaches any of the terms or conditions of this Agreement. Customer will pay in full for the
Services up to and including the last day on which the Services are provided. All sections of this
Agreement which by their nature should survive termination will survive termination, including,
without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers,
and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain
the Services in a manner which minimizes errors and interruptions in the Services and shall
perform the Implementation Services in a professional and workmanlike manner as expressed in
Exhibit C. Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency maintenance, either by Company or by third -party providers, or because
of other causes beyond Company's reasonable control, but Company shall use reasonable efforts
to provide advance notice in writing or by e-mail of any scheduled service disruption. However,
Company does not warrant that the Services will be uninterrupted or error free; nor does it make
any warranty as to the results that may be obtained from use of the Services. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, THE ANALYTICS, AND
IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND NON -INFRINGEMENT.
INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting from infringement
by the Service of any United States patent or any copyright or misappropriation of any trade
secret, provided Company is promptly notified of any and all threats, claims and proceedings
related thereto and given reasonable assistance and the opportunity to assume sole control over
defense and settlement; Company will not be responsible for any settlement it does not approve in
writing. The foregoing obligations do not apply with respect to portions or components of the
Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer
specifications, (iii) that are modified after delivery by Company, (iv) combined with other
products, processes or materials where die alleged infringement relates to such combination, (v)
where Customer continues allegedly infringing activity after being notified thereof or after being
informed of modifications that would have avoided the alleged infringement, or (vi) where
Customer's use of the Service is not strictly in accordance with this Agreement. If, due to a claim
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of infringement, the Services tire held by a court of competent jurisdiction to be or are believed by
Company to be infringing, Company may, at its option and expense (a) replace or modify the
Service to be non -infringing provided that such modification or replacement contains
substantially similar features and fimctionality, (b) obtain for Customer a license to continue
using the Service, or (e) if neither of the foregoing is commercially practicable, terminate this
Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid,
unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY
OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO
ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR
OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER
BEYOND COMPANY'S REASONABLE CONTROL, IN EACH CASE, WHETHER OR NOT
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable. This Agreement is not assignable, transferable or
sublicensable by Customer except with Company's prior written consent. Company may transfer
and assign any of its rights and obligations under this Agreement without consent. This
Agreement is the complete and exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements, communications and other
understandings relating to the subject matter of this Agreement, and that all waivers and
modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and
Customer does not have any authority of any kind to bind Company in any respect whatsoever. In
any action or proceeding to enforce rights under this Agreement, the prevailing party will be
entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing
and will be deemed to have been duly given when received, if personally delivered; when receipt
is electronically confirmed, if transmitted by facsimile or a -mail; the day after it is seat, if sent for
next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified
or registered mail, return receipt requested. This Agreement shall be governed by the laws of the
State of California without regard to its conflict of laws provisions. Customer otherwise agrees to
reasonably cooperate with Company to serve as a reference account upon request.
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EXHIBIT A
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and
scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime
calculation will exclude periods affected by such maintenance. Further, any downtime resulting from
outages of third party connections or utilities or other reasons beyond Company's control will also be
excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire
liability, in connection with Service availability shall be that for each period of downtime lasting longer
than 12 hours, Company will credit Customer I % of Service fees for each period of 30 or more
consecutive minutes of downtime; provided that no more than one such credit will accrue per day.
Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime
is taking place, and continues until the availability of the Services is restored. In order to receive
downtime credit, Customer must notify Company in writing within 12 hours from the time of downtime.
Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one
(1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to
the month in which the incident occurred. Company's blocking of data communications or other Service
in accordance with its policies shall not be deemed to be a failure of Company to provide adequate
service levels under this Agreement.
EXHIBIT B
Support Terms
Company will provide Technical Support to Customer via both telephone and electronic mail on
weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal.
Holidays (`Support Hours").
Customer may initiate a help desk ticket during Support Hours by palling 213-534-6898 or any time by
emailingsiipport@govinvest.com.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1)
business day.
EXHIBIT C
Disclaimer of Analysis
Company will provide the software with financially sound projections and analysis, but does not yet
guarantee compliance with actuarial standards for funding and accounting purposes including GASB 68
and GASB 27.
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