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PERFORMA SOFTWARE‐AS‐A‐SERVICE AGREEMENT
THIS PERFORMA SOFTWARE‐AS‐A‐SERVICE AGREEMENT (together with all attachments hereto, the "Agreement"), is made effective as of February 28, 2023 (the "Effective Date") and supersedes any previous agreements regarding PERFORMA SOFTWARE‐AS‐A‐SERVICE, by and between PERFORMA LABS, INC., a Delaware corporation having its principal place of business at 19900 Fairchild Road, Suite 300, Irvine, CA 92612 ("PERFORMA") and the City of Anaheim, a municipal corporation having its principal place of business at 200 S. Anaheim Blvd., Anaheim, CA 92805 ("Client").
Recitals
WHEREAS, PERFORMA's mobile device application (“App,” as further defined below) and proprietary training material provides self‐study training to California peace officers that is approved and recognized by the California Commission on Peace Officer Standards and Training (“POST”);
WHEREAS, the App allows law enforcement agencies to train peace officers using realistic scenarios based on actual Body Worn Camera footage; allows users flexibility to train on their own schedule; and allows agencies to monitor the progress and completion of training; and
WHEREAS, Client desires to utilize the App in conjunction with in‐person and other training programs to comply with POST requirements and to simplify and decrease the effort, time, and cost of training, and to increase the efficacy of its training program.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PERFORMA and Client agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms have the meanings set forth below:
“Admin Console” is a function provided in connection with the App to allow designated Client Admin(s) to access Admin Reports electronically.
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“Admin Report” means data provided in electronic form created and compiled by PERFORMA for the Client Admin(s) concerning progress and completion of Module(s) by Users. “App” means the IOS and Android application that PERFORMA provides in order for Client Admins and Users to access the Service.
“Client Admin(s)” is/are the person(s) employed by the Client who shall be PERFORMA’s primary point(s) of contact regarding the Service. Client shall have at least one designated Client Admin. If there is more than one Client Admin, the Client shall designate one or more Client Admin to access Admin Reports.
“Module” means a proprietary self‐study training module created by PERFORMA for utilization solely by authorized Users through the App. “Seat” means access to the Service via the App for one User for the completion of up to the number of hours of training per year purchased (as stated in Attachment A, “Price List and Service Fee Calculation”) during the Term of this Agreement. "Service" means providing training in Module(s) to Users via the App and Admin Reports to the Client Admin(s) via the App or electronically. The Service includes PERFORMA’s storing, hosting, managing, maintaining, and supporting the Software, App and Admin Console. “Service Fees” are the total annual fees charged based on the number of Seats and the number of hours of training purchased.
"Software" means PERFORMA's proprietary software (including algorithms and domain expertise) and associated third party software used by PERFORMA to provide the Service. “Term of this Agreement” means the one (1) year period commencing on the Effective Date.
"Users" means Client's personnel authorized to use the App and the Service. "User Data" means a User’s name, rank and responses to the Modules. All User Data exported by PERFORMA is aggregated and anonymized.
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2. Provision of the Service. PERFORMA shall make the Service available to Client and Users pursuant to the terms and conditions set forth in this Agreement. During the Term of this Agreement, PERFORMA shall provide the Service as described in in this Agreement, including fourteen (14) hours of POST‐accredited training videos, on subjects agreed to by Client.
3. Use of the Service.
3.1 POST Reporting. When a User completes and passes any training Module, Client authorizes PERFORMA to submit electronically to POST the name of the User and the specification of the Module passed.
3.2 Client Responsibilities.
3.2.1 Client shall notify PERFORMA in writing of the name(s), title(s), telephone number(s) and email address(es) of its Client Admins.
Client shall keep this information up to date during the Term of this Agreement. Client shall have at least one designated Client Admin during the Term of this Agreement.
3.2.2 Client shall provide the names and email addresses (departmental or Client web domain email addresses only) of the persons who it authorizes to be Users of the Service. Client shall submit User information in an electronic format provided or specified by PERFORMA.
3.2.2.1 Client is responsible for determining the eligibility of persons who it designates as Users under this Agreement.
Users shall be employees of the Client and at least 18
years of age.
3.2.2.2 Client shall be responsible for any conduct or actions of its Users that violates this Agreement.
3.2.2.3 Client shall notify PERFORMA within five (5) days of any User who is no longer eligible or authorized to be a User, Execution Version
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including but not limited to ineligibility by reason of termination of employment with the Client.
3.3 Use Guidelines.
3.3.1 Client and Users shall use the Service solely for training Users and monitoring the progress of training of Users through the Admin Console as contemplated by this Agreement.
3.3.2 Client, Client Admins, and Users shall not copy, reverse engineer, license, sublicense, sell, resell, rent, transfer, lease, assign, distribute, time share, or otherwise commercially exploit or make the Service, App, Admin Console, and Modules available to any third party.
Without limiting the generality of the foregoing, Users and Client Admins may not take screenshots or screen captures or any other reproduction of the App or Modules. This provision does not apply to disclosures required by the California Public Records Act, including disclosures required by California Penal Code section 13650.
3.3.3 Client, Client Admin(s), and Users shall not attempt to gain unauthorized access to the Service, App Modules, Admin Console, and related systems or networks.
3.3.4 Client, Client Admin(s), and Users shall not share their login information to access the App, including User IDs and passwords, with any other persons or display any content of the Modules to any other persons; provided, however, that User IDs and passwords may be shared with Client’s information technology personnel as needed for Client Admin(s) or Users to obtain App technical support.
3.3.5 Client shall be responsible for ensuring that all Client Admins and Users comply with the use guidelines set forth in this Section 3.3, as well as any additional reasonable guidelines and policies established by PERFORMA for the Client regarding use of the App and Service.
PERFORMA reserves the right to block access to the Service by any Execution Version
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person who violates these use guidelines or otherwise interferes with PERFORMA’s ability to provide the Service to any Client, Client Admin, or User.
3.3.6 Client, Client Admins, and Users shall download the App using a private link provided by PERFORMA. Client, Client Admins, and Users shall provide their own Internet service and mobile devices operating on either IOS or Android operating systems. No other operating systems are supported at this time. The Service is not available through a web browser.
3.3.7 PERFORMA only supports use of the App on devices using the most current version of the IOS or Android operating systems and the prior two versions of those systems. New releases of the IOS or Android operating systems will not be supported for up to three months after public release.
4. Service Fees and Payments.
4.1 Minimum Purchase. Promptly after the Effective Date, Client shall pay in full the Service Fees specified in Attachment A ("Price List and Service Fee Calculation") Client may purchase Seats in addition to those set forth in Attachment A at the same rate specified in Attachment A to accommodate anticipated hiring during the Term of this Agreement.
4.2 Refunds. Service Fees are not refundable (in whole or in part) in the event that Users do not use or complete or pass all of the Modules or hours for which Client has contracted.
4.3 Invoicing & Payment. The Service Fees shall be invoiced by PERFORMA as per Attachment A. Payments are due within 30 days of receipt of the invoice.
4.4 Suspension of Service. If Client's account is 45 days or more overdue under any agreements with PERFORMA (except with respect to charges then under reasonable and good faith dispute) in addition to any of its other rights or Execution Version
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remedies, PERFORMA reserves the right to suspend the Service provided to Client, without liability to Client, until such amounts are paid in full.
4.5 Taxes. Unless otherwise stated, PERFORMA's fees do not include any local, state, federal, or foreign taxes, levies or duties of any nature ("Taxes"). Client is responsible for paying all Taxes, excluding only taxes based on PERFORMA's income. If PERFORMA has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client unless Client provides PERFORMA with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights.
5.1 Reservations of Rights. Client acknowledges that in providing the Service, PERFORMA utilizes (i)the PERFORMA name, the PERFORMA logo, the PERFORMA‐LABS.com domain name, the product and service names associated with the Service, and other registered or unregistered trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know‐how, and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "PERFORMA Technology") and that the PERFORMA Technology is covered by intellectual property rights owned or licensed by PERFORMA (collectively, "PERFORMA IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the PERFORMA Technology or PERFORMA IP Rights are granted to Client, Client Admins, or Users, and all such licenses and rights are and shall remain with PERFORMA and its licensors and are hereby expressly reserved.
5.2 License Grant. PERFORMA grants Client and its Users a worldwide, non‐ exclusive, non‐transferable, non‐ sublicensable right to access and use the App and Software hosted by PERFORMA in connection with PERFORMA's provision of the Service in accordance with the terms of this Agreement.
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5.3 Restrictions. Client and Users shall not (i) modify, copy, or create derivative works based on the Service or the PERFORMA Technology; (ii) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service; (iii) bypass or breach any security device or protection used by the Service or access or use the Service other than by a User through the use of his or her own then‐valid access credentials; (iv) remove, delete, alter, or obscure any trademarks, specifications, documentation, end‐user license agreement, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service; or (v) disassemble, reverse engineer, decode, or decompile the Service or PERFORMA Technology, or otherwise attempt to derive or gain access to it except as expressly permitted by this Agreement, for any reason whatsoever, including to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. Client, Client Admins, and Users may not create, store, or disseminate screenshots or capture screen images from the App, Module(s), or Admin Console.
5.4 Suggestions. PERFORMA shall have a royalty‐free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its Users relating to the operation of the Service.
5.5 User Data.
5.5.1 Client Admin(s) and User(s) may access electronically certain User Data and aggregations, calculations, and manipulations created from User Data by PERFORMA. The parties agree that all such User Data (including any aggregations, calculations, and manipulations created from User Data) are the exclusive property of PERFORMA; provided, however, that PERFORMA shall maintain the confidentiality of all User Data and shall not disclose User Data to any third party without Execution Version
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the written consent of Client or in response to a subpoena, discovery request, document request, Public Records Act request, or any other valid court order.
5.5.2 Compelled Disclosure. In the event PERFORMA is required by law, regulation, or a valid and effective subpoena or order issued by a court of competent jurisdiction to disclose User Data or any other information related to this Agreement (any such request, a “Required Disclosure”), PERFORMA shall promptly notify Client in writing of the existence, terms and circumstances surrounding such Required Disclosure so that Client may take any measures, at Client’s expense, that it deems appropriate to oppose or respond to the request. At Client’s request, PERFORMA shall provide all cooperation and assistance as may reasonably be requested by Client in responding to the Required Disclosure or seeking a protective order or other appropriate remedy to prevent or limit the scope of any such Required Disclosure. Client shall reimburse PERFORMA for its reasonable personnel costs, reasonable attorneys’ fees, court costs and expenses, and court sanctions or penalties incurred by PERFORMA if Client request PERFORMS to respond to any Required Disclosure.
6. Warranties, Limitations, and Disclaimers.
6.1 PERFORMA Warranty. PERFORMA warrants that it will provide the Service in a manner consistent with this Agreement, industry standards, and any documentation provided by PERFORMA in connection with the Service.
6.2 Authorization. PERFORMA is either (i) the owner of the Software, App, Admin Console, and Module(s) or (ii) authorized to provide the Service pursuant to the terms of this Agreement, and has sufficient right, title, and interest in the Software, App, Admin Console, and Module(s) to grant the license contemplated by this Agreement, and (iii) PERFORMA is not currently engaged in any litigation Execution Version
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or legal proceeding of any kind, the subject of which is the Service, Software, App, Admin Console, and Module(s); and to the knowledge of PERFORMA, no legal action pertaining in any manner to the Service, Software, App, Admin Console, and Module(s) is threatened.
6.3 Open‐Source Software. The Service, Software, and App do not make use of Open‐Source Software in any way that would otherwise make the Service, Software, or App Open‐Source Software.
6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE SERVICES ARE PROVIDED BY PERFORMA AND ITS THIRD‐PARTY SOFTWARE AND SERVICE PROVIDERS WITH NO WARRANTIES OF ANY KIND EXCEPT THOSE EXPRESSLY SET FORTH IN THIS SECTION 6, AND PERFORMA AND ITS THIRD‐PARTY SOFTWARE AND SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PERFORMA DOES NOT WARRANT THAT THE SERVICE, MODULE(S), APP, AND ADMIN CONSOLE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE.
7. Limitation of Liability.
7.1 Limitation of Action. Except for actions for non‐payment or breach of intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
7.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR RELIANCE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, UNDER ANY CLAIM OR CAUSE OF ACTION, WHETHER BASED ON LEGAL OR EQUITABLE DOCTRINES. IN NO EVENT WILL PERFORMA’S LIABILITY TO CLIENT ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND Execution Version
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UNDER ALL THEORIES OF LIABILITY, EXCEPT THOSE ARISING OUT OF PROFESSIONAL SERVICES, EXCEED TWO TIMES (2X) THE ACTUAL AMOUNT PAID TO PERFORMA BY CLIENT IN THE 12 MONTHS PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION THAT GIVES RISE TO THE CLAIM.
7.3 In no event shall PERFORMA be liable for data or connection charges incurred by the Client, Client Admin(s), and Users to download, access, or use the App, Admin Console, or Service.
8. Indemnification.
8.1 Client Indemnification. Subject to PERFORMA’s indemnification obligations in Section 8.2, Client shall indemnify PERFORMA against, and hold PERFORMA harmless from, any third‐party claim, demand, cause of action, damage, liability, or expense, including reasonable attorneys’ fees incurred by PERFORMA arising out of: (i) Client’s, Client Admins’ or Users’ use of the Service and App, or (ii) the acts or omissions of Client and its Client Admins, Users, employees, or agents.
8.2 PERFORMA Indemnification.
As respects acts, errors or omissions in the performance of professional services, PERFORMA agrees to indemnify and hold harmless Client, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, arising directly out of the negligent acts, errors or omissions of PERFORMA or any SUB‐AGENT in the performance of professional services under this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, PERFORMA agrees to indemnify, defend (at Client's option), and hold harmless Client, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with PERFORMA’s (or PERFORMA's AGENT or SUB‐AGENT, if any) Execution Version
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acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of Client.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not Client, PERFORMA, or any other person maintains, or fails to maintain, insurance coverage, or a self‐insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
Notwithstanding anything herein to the contrary, PERFORMA shall not be liable under this Article 8.2 for any claim for infringement based on the following:
8.2.1 Client’s modification of the Service, Software, Modules, App, or Admin Console without the written permission of PERFORMA.
8.2.2 Use of the Service, Software, Modules, App, or Admin Console in a manner other than as contemplated by this Agreement, or as authorized in writing by PERFORMA.
9 Insurance.
9.1 Without limiting Client’s right to indemnification, it is agreed that PERFORMA shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
9.1.1 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in a minimum amount of One Million Dollars ($1,000,000) per occurrence.
9.1.2 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractor’s Liability, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written Execution Version
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on an occurrence form. Excess/Umbrella insurance may be used to satisfy this requirement.
9.1.3 Professional Liability Insurance in an amount not less than $2,000,000 per occurrence, and PERFORMA shall maintain such coverage for at least one (1) year from the termination of this Agreement. Such insurance shall be written on a primary basis, but may include a deductible or self‐insurance retention of not more than $10,000 per occurrence, provided that such deductible is disclosed to Client, in writing, at the inception of this Agreement.
9.2 Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions: “This insurance shall not be cancelled, or limited in scope or coverage, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S.
Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non‐ payment of premium which shall provide for not less than ten (10) days’ notice.”
9.3 Each insurance policy required by this Agreement, except those policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
9.3.1 “It is agreed that any insurance maintained by PERFORMA, pursuant to this Agreement, shall be primary to, and not contribute with, any insurance or self‐insurance maintained by the City of Anaheim.”
9.3.2 “The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM‐designated volunteers are added as additional insureds as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to Execution Version
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products supplied to, or work or services performed for, or related to, the City of Anaheim.”
9.4 Prior to commencing any work under this Agreement, PERFORMA shall deliver to Client insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above.
Also, within thirty (30) days of the execution date of this Agreement, PERFORMA shall provide Client: (i) endorsements to the insurance policies which add to these policies the applicable clauses referenced above; or (ii) in lieu of said endorsements, documentation acceptable to Client evidencing that the coverage, terms, and conditions set forth in the above‐referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California; (ii) possessing an A. M. Best’s rating of A VII or higher; or (iii) otherwise acceptable to Client, with prior written permission from Client. In the event that a claim or other legal action is filed against Client, and if Client, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Client has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the Parties agree that PERFORMA shall fully defend, hold harmless, and indemnify Client against any such claim or other legal action.
9.5 In addition to other remedies Client may have if PERFORMA fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Client may, at its sole option:
9.5.1 Instruct PERFORMA to stop work under this Agreement and/or withhold any payment(s) which become due to PERFORMA
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hereunder until PERFORMA demonstrates compliance with the requirements hereof; or
9.5.2 Terminate this Agreement.
9.5.3 Exercise of any of the above remedies, however, is an alternative to other remedies Client may have and is not the exclusive remedy for PERFORMA’s failure to maintain insurance or secure appropriate endorsements.
9.6 Nothing herein contained shall be construed as limiting in any way the extent to which PERFORMA may be held responsible for payments of damages to persons or property resulting from PERFORMA’s (or PERFORMA’s
contractors/subcontractor, if any) performance of the work covered under this Agreement.
9.7 In the event PERFORMA hires other persons or firms to perform some of the work related to this Agreement, PERFORMA shall ensure, and certify to Client in writing that: (i) the acts or omissions of such persons or firms are covered under the above‐referenced liability insurance; or (ii) such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of PERFORMA under this Agreement (except for firms which are not performing professional services‐such firms shall not be required to carry the above‐referenced professional liability insurance); and in either instance, PERFORMA shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Client.
9.8 Client’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event he determines that such reduction is in Client’s best interest. 10 Termination.
10.1 Termination for Convenience. Client shall have the right to partially or completely cancel the Service upon thirty (30) days written notice to PERFORMA.
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Termination for Convenience does not entitle the Client to a refund of any fees paid for the Service, whether or not the Service has been used in full or in part.
10.2 Termination for Cause. Either party may terminate this Agreement upon 30 days' written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. If Client terminates this Agreement for cause pursuant to this Section 10.2, Performa shall refund the fees Client has paid for the Service on a pro‐rata basis for the time remaining on the Agreement.
10.3 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration for a period of three (3) years: Sections 5 (excluding Section 5.2), 7, 8, 9, 10, and 11.
10.4 User Data after Termination. PERFORMA may retain User Data after termination, subject to the provision of Section 5.5 and 5.5.1 above. Client may request to receive an electronic copy of User Data upon termination. 11 Dispute Resolution.
11.1 Negotiation. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation directly between executives of each party who have authority to settle the controversy. Any party may give the other party written notice of any dispute that arises under this Agreement. Within 15 days after delivery of the written notice, the receiving party shall provide a written response. The notice and response shall include with reasonable particularity (a) a statement of each party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party at the negotiation and of any other person who will accompany the executive. Within 30 days after delivery of the initial written notice, the designated executives of both parties shall meet at a mutually acceptable time and place.
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11.1.1 Unless otherwise agreed in writing by the negotiating parties, the above‐described negotiation shall end at the close of the meeting of designated executives (“Meeting”). Ending the Meeting without a resolution shall not preclude further negotiation or mediation, if mutually desired by the parties.
11.1.2 All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation and the Meeting by any of the parties, their agents, employees, experts and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment, in an arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non‐discoverable as a result of its use in the negotiation.
11.1.3 At no time prior to the conclusion of the Meeting shall either side initiate an arbitration or other legal proceeding related to this Agreement except to pursue a provisional remedy that is authorized by law or by the JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph
10.1 above.
11.1.4 All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 10.1 and 10.1.1 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
12 General Provisions.
12.1 Record Requests; Audits. From time to time during the Term of this Agreement Client or its nominee, authorized agent, or representative may, in Client’s reasonable discretion, (a) request documentation or records regarding Client’s or Execution Version
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its Users’ use of the Service or User Data, including for Client to comply with governmental or regulatory requests or requirements (any such request, a “Records Request”); and (b) on at least three (3) business days’ notice, inspect and audit PERFORMA’s records from the preceding 36‐month period solely as they relate to this Agreement (an “Audit” and, together with a Records Request, an “Inspection”). All Audits shall be conducted during regular business hours and no more frequently than once in any 12‐month period (except as otherwise required to comply with applicable law), and in a manner that does not unreasonably interfere with PERFORMA’s business operations. PERFORMA shall make available its books, records, equipment, information, and personnel as may be reasonably necessary to cooperate with any Inspection. Client shall only have access to and examine information directly related to Client’s or its Users’ use of the Service, and shall comply with all reasonable instruction communicated by PERFORMA in completing its Inspection.
12.2 Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, exclusive of conflict or choice of law rules.
12.3 No Benefit to Third Parties. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties, and they are not to be construed as conferring any rights on any other persons.
12.4 Notices. All notices or other written communications required or permitted to be. given sent pursuant to this Agreement shall be sent by overnight delivery, registered, or certified U.S. mail (return receipt requested) and addressed to the parties at the addresses first set forth above (or such other address as may be specified by like notice).
12.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
Other than as expressly stated herein, the remedies provided herein are in Execution Version
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addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objective of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7 Assignment. Neither Party may assign or transfer this Agreement or any right or obligation hereunder without the other party's prior written consent; provided, that PERFORMA may assign this Agreement in connection with a sale or transfer of substantially all of the assets of, or a majority interest in, the voting shares of PERFORMA to, or the merger or consolidation of PERFORMA with or into, any other person or company. Any assignment made in violation of this provision shall be void. Client agrees that PERFORMA may subcontract the hosting and other services to be performed in connection with this Agreement, provided that any such subcontracting arrangement shall not relieve PERFORMA of any of its obligations hereunder.
12.8 Force Majeure. Neither party will be liable for failure or delay in performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, civil or military authority; terrorists, civil disturbance, fire or other catastrophe, parts shortages, governmental act, or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. To the extent there exists an ongoing force majeure event impacting PERFORMA’s ability to render the Services in material compliance with its obligations set forth herein, the Term of this Agreement shall be extended at no cost to Client by the number of days during which Client’s access of the Services remained impaired as a result of such force majeure event.
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12.9 Use of Client’s Name. With Client’s permission, PERFORMA may i) use Client’s name on client lists used for promotional purposes, or ii) issue press releases or press statements concerning Client’s use of the service.
12.10 Entire Agreement. This Agreement and its attachments constitute the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement and all such terms or conditions shall be null and void.
12.11 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
[SIGNATURES ON FOLLOWING PAGE]
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Dated: February ___, 2023 CITY OF ANAHEIM
By: ________________________
Name:
Title:
Dated: February ___, 2023 PERFORMA LABS, INC.
By: ________________________
Name: Anderee Berengian
Title: Chief Executive Officer
APPROVED AS TO FORM:
By: ________________________
Name: Kristin A. Pelletier
Title: Senior Assistant City Attorney
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ATTACHMENT A
PRICE LIST AND SERVICE FEE CALCULATION
Pricing is $550 per year per Seat per 14 hours of Training Module(s).
Number of Seats Purchased: 150
Hours of Training Purchased per Seat: 14
Total Annual Service Fee: $82,500.00