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AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
PLACER LABS, INC.
This Agreement for Services (“Agreement”) is entered into as of _____, 2023 (“Effective Date”) by and between the City of Cathedral City, a municipal corporation (“City” or “Customer”) and Placer Labs, Inc., a California Corporation (“Service Provider” or “Placer”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct negotiation, the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Cathedral City’s Municipal Code, City has authority to enter into this Services Agreement and the City Manager has authority to execute this Agreement.
D. The Parties desire to formalize the selection of Service Provider for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 19 "Termination of Agreement" of this Agreement, the initial term of this Agreement will begin as of the Effective Date, and will continue for 12 consecutive months thereafter (the “Initial Term”). Each renewal or additional term, if any, is referred to as “Additional Term,” and the Initial Term and any Additional Terms are referred to collectively as the “Term.” IRV #4886-8283-7591 v1
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Following expiration of the Initial Term, the City may renew for up to five (5) additional one (1) year periods by providing notice if mutually agreed in writing by both parties not less than thirty (30) days prior to the expiration of the then-current term.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Service Provider agrees to provide the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services” or “Order Form”) and made a part of this Agreement by this reference.
(b) Schedule of Performance. If applicable, the Services shall be completed pursuant to the times or schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Service Provider the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Fifty Thousand and no/100 ths dollars ($50,000.00) for the Initial Term, unless additional compensation is approved in writing in accordance with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement.
SECTION 5. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Service Provider shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
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(b) The personnel performing the Services under this Agreement on behalf of Service Provider shall at all times be under Service Provider’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Service Provider or any of Service Provider’s officers, employees, or agents except as set forth in this Agreement.
Service Provider shall not at any time or in any manner represent that Service Provider or any of Service Provider’s officers, employees, or agents are in any manner officials, officers, employees or agents of City.
(c) Neither Service Provider, nor any of Service Provider’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Service Provider expressly waives any claim Service Provider may have to any such rights.
SECTION 6. STANDARD OF PERFORMANCE; FAMILIARITY WITH
WORK.
(a) Service Provider represents and warrants that it has the qualifications, experience and facilities necessary to properly provide the Services required under this Agreement in a thorough, competent and professional manner. In meeting its obligations under this Agreement, Service Provider shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Service Provider under this Agreement.
SECTION 7. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Service Provider shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Service Provider shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Service Provider to comply with this section.
SECTION 8. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, IRV #4886-8283-7591 v1
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“construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 9. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, in the employment of persons to perform the Services in violation of any federal or state law prohibiting discrimination in employment, including based on the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, of any person, except as provided under California Government Code section 12940.
SECTION 10. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Service Provider’s performance of the Services. Service Provider further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Service Provider agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City may determine that Service Provider must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Service Provider shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowledges that Service Provider is, as of the date of execution of this Agreement, independently involved in the performance of non- related services for other governmental agencies and private parties. Service Provider is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section.
(d) City understands and acknowledges that Service Provider will perform non-related services for other governmental agencies and private Parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 11. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
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(a) All information gained or work product produced by Service Provider in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Service Provider. Service Provider shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of Service Provider, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Service Provider for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Service Provider’s conduct.
(d) Service Provider shall promptly notify City should Service Provider, its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Service Provider or be present at any deposition, hearing or similar proceeding. Service Provider agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Service Provider. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
SECTION 12. INDEMNIFICATION.
(a) Indemnification by Service Provider. To the full extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability to third parties resulting from infringement by Service Provider’s provision of Placer Data of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to any portions or components of Placer Data (i) that are created, compiled, or modified by any party other than Service Provider, (ii) combined with other products, processes, data, or materials where the alleged infringement relates to such combination, (iii) where City continues allegedly infringing activity after being notified thereof or after being informed of alternatives that would IRV #4886-8283-7591 v1
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have avoided the alleged infringement, or (iv) where City’s use of Placer Data is not strictly in accordance with this Agreement. If, due to a claim of infringement, Placer Data are held by a court of competent jurisdiction to be or are believed by Service Provider to be infringing, Service Provider may, at its option (a) obtain for City a license to continue using Placer Data or (b) terminate the Order Form and Customer’s rights thereunder and provide Customer a refund of any prepaid, unused fees for Placer Data..
(b) City’s Negligence. The provisions of this section do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 13. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request.
SECTION 14. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Service Provider under this Agreement. In recognition of that interest, Service Provider shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Service Provider’s duties or obligations under this Agreement without the prior written consent of the City; provided, however, that no consent shall be required for any assignment in connection with a Sale of Business (as defined below). “Sale of Business” means an acquisition of Placer, a merger of Placer with or into another entity, a sale of Placer’s assets, or similar transactions. The Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of the respective parties in the Agreement. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 19 “Termination of Agreement.” City acknowledges, however, that Service Provider, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 15. TERMINATION OF AGREEMENT.
.
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(a) If either Service Provider or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Service Provider, or City may terminate this Agreement upon thirty (30) days’ notice and the breach remains uncured during such thirty (30) days. In addition, Service Provider may immediately suspend Customer’s access to the Services, or terminate the Order Form, in the event of non-payment by the City or breach by City of any restrictions regarding usage of the Services. Should either Service Provider or City terminate this Agreement for any reason except for an event of non-payment or breach by City, Service Provider will remit to City the prorated Fee attributable to the balance of the current Term. (b) Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider’s possession shall be returned to City. Service Provider shall furnish to City a final invoice for work performed and expenses incurred by Service Provider, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 16. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Service Provider for any work performed after the date of default. Instead, the City may give notice to Service Provider of the default and the reasons for the default. The notice shall include the timeframe in which Service Provider may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Service Provider is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Service Provider does not cure the default, the City may take necessary steps to terminate this Agreement under Section 19 “Termination of Agreement.” Any failure on the part of the City to give notice of the Service Provider’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 17. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Service Provider. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
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SECTION 18. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Service Provider in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 19. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Service Provider: Placer Labs, Inc.
440 N Barranca Ave., #1277
Covina, California 91723
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 20. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Service Provider to the performance of its obligations hereunder.
SECTION 21. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 27 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 22. BINDING EFFECT.
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This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 23. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Service Provider and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 24. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Service Provider shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 25. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed, and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 26. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 27. ENTIRE AGREEMENT.
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of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 28. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 29. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
*Signatures on Next Page*
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CITY OF CATHEDRAL CITY PLACER LABS, Inc.
__________________________ _______________________
Charles P. McClendon By:________________________
City Manager Its:________________________
ATTEST:___________________________
By:________________________
Its:________________________
___________________________
Tracey Martinez
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
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EXHIBIT "A"
PLACER LABS, INC.
ORDER FORM
Placer Labs, Inc. will provide the following service to the City of Cathedral City.
City of Cathedral City (“Customer”) Placer Labs, Inc. (“Placer”) Address: 68700 Avenida Lalo Guerrero
Cathedral City, California 92234
Address: 440 N Barranca
Ave., #1277
Covina, California
91723
Contact Person: Stone James Contact Person Chris Duval
Email: [email protected] Billing Contact Person: Melissa Anderson Phone: 760-770-0336 Billing Email*: [email protected]
Billing Contact Email: [email protected] Billing Phone*: 415-228-2444 *Not for use for official notices.
1. Services.
The services provided under this Order Form (the “Services”) include:
•Access, via Placer Venue Analytics Platform (“Placer’s Platform”), to all major venues within the United States
•Access, via Placer’s Platform, to reports, including Visits, Trade Areas, Customer Journey, Customer Insights, Dwell Times, and Visitation by Hour/Day •Actionable insights include:
oAccurate foot traffic counts and dwell time
oTrue Trade Areas displaying frequent-visitors-density by home and work locations
oCustomers’ demographics, interests, and time spent at relevant locations oWhere customers are coming from and going to, and the routes they take oBenchmarking of Foot Traffic, Market Share, Audiences, and other key metrics oCompetitive insights
oVoid Analysis Reports
•Access to Xtra reports per ad hoc needs; in Excel, KML, Tableau, and other formats: Quarterly Maximum of 26 credits; Annual Maximum of 104 credits •Premier Customer Support
oRegular meetings with Placer's Customer Success Team
oLive, Virtual Training support as reasonably needed
•Access to STI Demographics Bundle + Mosaic Data Set. The applicable Advanced Demographics and Psychographics are generated using the Input Datasets from the data vendors as set forth below:
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2. Permitted Uses
The data, information and materials accessible via the Services are referred to as “Placer Data”.
Customer may use Placer Data solely for the following purposes (“Permitted Uses”): (a) Customer may use Placer Data for Customer’s internal business purposes; and (b) Customer may incorporate Placer Data into Research Data, as described and subject to the restrictions below. “Research Data” means datasets and other materials created by Customer that result in any part from Customer’s use of Placer Data. The Customer may share Research Data with current and potential customers, and in marketing materials; provided that the Customer shall cite Placer as a provider of such information (for such purpose only, Placer grants Customer the rights to use the Placer.ai name and logo, provided that any such use of the Placer.ai name and logo must clearly indicate that Placer is the provider of data only, and is not involved in any analysis, conclusion, recommendation).
Customer shall not, directly or indirectly, resell, distribute, sublicense, display or otherwise provide Placer Data to any third parties, except that Customer may display Placer Data as part of Research Data.
3. Support.
Placer will use commercially reasonable efforts to provide customer service and technical support in connection with the Services on weekdays during the hours of 9:00 A.M. through 5:00 P.M.
Pacific Time, with the exclusion of federal holidays. For any such support, please contact us at [email protected].
4. Mutual NDA.
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 Placer includes, without limitation, non-public information regarding features, functionalities and performance of, and pricing for, the Services. 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 by the Agreement) or disclose to any third party any Proprietary Information. The foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in the possession of or known to the Receiving Party, prior to disclosure thereof by the Disclosing Party, without any restrictions or confidentiality obligations, (c) was rightfully disclosed to it, without any restrictions or confidentiality obligations, by a third party, (d) was independently Description Input Datasets Used
PopStats
Spending Patterns
Workplace
STI Demographics Bundle
Market Outlook
Experian Mosaic Mosaic Segmentation
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developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law, including, but not limited to, the California Public Records Act, provided that the Receiving Party provides the Disclosing Party with prompt written notice of such requirement and reasonably cooperates with the Disclosing Party to limit or challenge such requirement. These provisions regarding Proprietary Information shall apply in perpetuity and shall survive any termination of the Order Form or the Agreement.
5. Miscellaneous.
Customer grants Placer the right to use Customer’s company name and company logo, for Placer’s promotional purposes, with Customer prior written approval. License Agreement Terms are hereby added as Exhibit A, Appendix I,; provided, however, that in the event of any conflict between this Scope of Services and the License Agreement, this Scope of Services shall control. Unless otherwise defined in this Scope of Services, capitalized terms herein have the same meaning as in the License Agreement.
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EXHIBIT "A"
SCOPE OF SERVICES
Appendix I
PLACER LABS, INC.
License Agreement
This License Agreement (this “License Agreement”) is entered into by and between Placer Labs, Inc., a Delaware corporation (“Placer”), and the customer (“Customer”) listed on the order form (the “Order Form”) entered into by and between Placer and Customer, effective as of the last signature date set forth on the Order Form (the “Effective Date”). Unless otherwise defined in this License Agreement, capitalized terms herein have the same meaning as in the Order Form.
1. LICENSE
Subject to the terms of this License Agreement and the Order Form (including, without limitation, the payment of fees by Customer), Placer hereby grants to Customer a limited, non-exclusive, non-transferable, non- sublicensable license to access and use the Services (as set forth in the Order Form) solely for the Permitted Uses (as set forth in the Order Form).
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly, or allow any third party to (a) 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 Placer Data or any software, documentation or data related to the Services or Placer Data; (b) attempt to re-identify any anonymized, aggregated, deidentified, obfuscated, or statistical Placer Data, (c) modify, translate, or create derivative works based on Placer Data (except to the extent expressly set forth as Permitted Use in the Order Form), (d) share Placer Data with, or disclose Placer Data to, or use Placer Data for the benefit of, a third party (except to the extent expressly set forth as Permitted Use in the Order Form), (e) remove any proprietary notices or labels, (f) circumvent any security control or access mechanism for the Services or Placer Data, (g) perform systematic and/or bulk downloads of Placer Data, or web scraping of Placer Data/from the Services, or systematic API calling beyond the minimal amount needed for Permitted Uses, or attempt to reconstruct any portion of Placer Data, (h) use the Services or Placer Data in connection with any products, services, or activities that compete with Placer, or (i) attempt to build a user profile for a given individual or device based on Placer Data, or attempt, facilitate, or encourage others to identify a given individual or user or reconstruct user profiles based on Placer Data. Customer shall not, directly or indirectly, resell, distribute, sublicense, display, or otherwise provide to third parties the Services or any Placer Data or any derivatives of Placer Data, except that Customer may display Placer Data as part of Research Data during the Term. For the avoidance of doubt, and without limiting any other restrictions or obligations set forth in this License Agreement, Customer shall not use, license, sub-license or distribute Placer Data or any data derived from Placer Data, for any of the following purposes: (I) in connection with establishing eligibility for employment, health care, credit or insurance; (II) for making decisions solely by automatic means where the decision has a significant effect on the individual to whom the data relates; (III) for any unlawful tracking or unlawful surveillance purposes; or (IV) to market or sell to law enforcement agencies or to any governmental agency to be used for a law enforcement purpose.
2.2 Customer represents, covenants, and warrants that Customer will use the Services and Placer Data and only in compliance with applicable laws and regulations. Furthermore, Customer will ensure all access to Placer (“log in”) shall be done using email addresses of Customer’s email domain, and never any personal email addresses.
Although Placer has no obligation to monitor Customer’s access to and use of the Services or Placer Data Placer may do so and may prohibit any access or use it believes may be (or alleged to be) in violation of the foregoing.
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2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and Placer Data, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Access Equipment”). Customer shall also be responsible for maintaining the security of the Access Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Access Equipment with or without Customer’s knowledge or consent.
2.4 Customer shall maintain information security measures to safeguard Customer’s Access Equipment and Placer Data in Customer’s possession, including appropriate physical, technical, and organizational measures to ensure the security of such data. Such measures shall include, but not be limited to, the same degree of care that Customer utilizes to safeguard its own sensitive data, which shall be no less than industry standard security measures in any event.
2.5 Placer or its designee(s) may, at any time upon not less than ten (10) business days’ notice to Customer, examine records, if any, of Customer (and its affiliates and contractors, if any are permitted to use Placer Data) related to Customer’s and any such parties’ use of Placer Data (“Audit”). Customer will cooperate fully, and cause its affiliates and contractors to cooperate fully, with any such Audit(s) and will provide all records, data, documentation, and other information reasonably requested by Placer. The Audit(s) will be conducted during normal business hours, and at Placer’s expense; provided however if such Audit reveals misuse of Placer Data by Customer, then Customer will bear the cost of such Audit, without limiting any other rights or remedies that Placer may have with respect to any such misuse of Placer Data.
3. PROPRIETARY RIGHTS
3.1 Placer shall own and retain all right, title and interest in and to (a) the Services and Placer Data, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with supporting the foregoing, and (c) all intellectual property rights related to any of the foregoing. No licenses are granted by estoppel or by implication.
3.2 Customer may provide feedback to Placer in respect of the Services or Placer Data. Feedback may include, without limitation, updates to or corrections of Placer Data (e.g., a retail store may have moved or may have been closed). Placer may use any such feedback to improve the Services or for other purposes, without any obligation to Customer.
3.3 In the course of using the Services, Customer may upload data (e.g., Customer’s customer data) to the Services. Such uploaded data is referred to herein as “Customer Data”. Customer hereby grants Placer a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to use, modify, reproduce, distribute, prepare derivative works of, display and perform Customer Data (including all related intellectual property rights) in an aggregated and de-identified format (“Anonymized Customer Data”) in connection with the Services. Customer also hereby grants each user of the Services a non-exclusive license to access Anonymized Customer Data through the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such Anonymized Customer Data as permitted through the functionality of the Services. For clarity, the foregoing license grant to Placer and users of the Services does not affect Customer’s ownership of Customer Data. Placer reserves the right to remove any Customer Data and/or Anonymized Customer Data from the Services at any time for any reason. Customer, not Placer, remains solely responsible for all Customer Data that Customer uploads, posts, emails, transmits, or otherwise disseminates using, or in connection with, the Services, and Customer represents and warrants that Customer possesses all rights necessary to provide such Customer Data to Placer and to grant the rights to use such Customer Data as provided herein.
4. WARRANTY AND DISCLAIMER
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4.1 Placer shall use reasonable efforts consistent with prevailing industry standards to provide access to the Services and Placer Data. Access may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Placer or by third-party providers, or because of other causes beyond Placer’s reasonable control, but Placer shall use reasonable efforts to provide advance notice, by posting in the Services, email, or otherwise, of any scheduled service disruption. PLACER DOES NOT WARRANT THAT ACCESS TO THE SERVICES OR PLACER DATA 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 OR PLACER DATA.
4.2 Placer Data shall not include (i) any personally identifiable data, including but not limited to, name, email address, address or any other personal identifier (“Personal Data”), nor (ii) any sensitive data, including but not limited to Personal Data relating to social security numbers and other government identifiers, information relating to health or medical conditions, and information relating to sex life or sexual orientation, political opinions, and financial account numbers (“Sensitive Data”).
4.3 Placer represents and warrants that to its knowledge the Services and Placer Data do not infringe the intellectual property rights of any third party and comply with applicable laws and regulations. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, THE SERVICES AND PLACER DATA ARE PROVIDED “AS IS” AND PLACER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PLACER DATA ARE COMPILED BASED ON PROPRIETARY
ALGORITHMS, AND PLACER DOES NOT WARRANT THAT ALL DATA SHALL BE COMPLETE AND ACCURATE. FURTHER, PLACER MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR PLACER DATA. Without limiting the foregoing disclaimer, Customer acknowledges and agrees that Placer Data consist of and represent the result of statistical inferences.
Placer is not a backup service, and Customer is solely responsible for creating any backups of data provided by Placer. Placer is not responsible for decisions made by Customer based on Placer Data.
5. INDEMNITY
5.1 Placer shall defend, indemnify and hold Customer harmless from liability to third parties resulting from infringement by Placer’s provision of Placer Data of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to any portions or components of Placer Data (i) that are created, compiled, or modified by any party other than Placer, (ii) combined with other products, processes, data, or materials where the alleged infringement relates to such combination, (iii) where Customer continues allegedly infringing activity after being notified thereof or after being informed of alternatives that would have avoided the alleged infringement, or (iv) where Customer’s use of Placer Data is not strictly in accordance with this License Agreement. If, due to a claim of infringement, Placer Data are held by a court of competent jurisdiction to be or are believed by Placer to be infringing, Placer may, at its option (a) obtain for Customer a license to continue using Placer Data or (b) terminate the Order Form and Customer’s rights thereunder and provide Customer a refund of any prepaid, unused fees for Placer Data.
5.2 In the event of a claim, Customer shall (a) provide the Placer with prompt written notice of any claim, (b) providing Placer with sole control over the defense and settlement of the applicable claim and (c) reasonably cooperating with Placer in defending such claim. Subject to the foregoing, the City may be represented in any proceeding by counsel of its own choosing at its own expense.
6. LIMITATION OF LIABILITY
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IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, OR
PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE ORDER FORM, THIS AGREEMENT, THE
SERVICES OR PLACER DATA, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR NON-PAYMENT OF FEES, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN
CONNECTION WITH THE ORDER FORM, THIS AGREEMENT, THE SERVICES OR PLACER DATA OR
FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL NOT EXCEED THE FEES PAID TO PLACER UNDER THE ORDER FORM DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING ANY CLAIM GIVING RISE TO ANY LIABILITY HEREUNDER. NOTWITHSTANDING ANY
OTHER PROVISIONS, THE FOREGOING LIMITATIONS WILL NOT APPLY TO BREACH OF CONFIDENTIALITY OBLIGATIONS OR BREACH OF LICENSING RESTRICTIONS.
7. EXPORT CONTROL
Customer may not remove or export from the United States or allow the export or re-export of Placer Data, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
8. MISCELLANEOUS
This License Agreement includes and incorporates Placer’s privacy policy located at https://www.placer.ai/privacy-policy/ platform-services-privacy-policy/ (the “Privacy Policy”). The Order Form, the Privacy Policy, and all other referenced documents, if any, are integral parts of this License Agreement. If any provision of this License Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this License Agreement will otherwise remain in full force and effect and enforceable. This License Agreement is not assignable, transferable or sublicensable by Customer except with Placer’s prior written consent. Placer may transfer and assign any of its rights and obligations under this License Agreement without consent. This License 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 License Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided. No agency, partnership, joint venture, or employment is created as a result of this License Agreement and Customer does not have any authority of any kind to bind Placer in any respect whatsoever. In any action or proceeding to enforce rights under this License Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. This License Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
This License Agreement shall have the same Term as, and shall terminate or expire concurrently with, the Order Form. The following will survive any termination of this License Agreement and Order Form: Sections 2.1, 2.4, 2.5,
3.1, 3.2, 4 through 8 of this License Agreement.
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EXHIBIT "B"
COMPENSATION
City will pay Service Provider a total amount not to exceed $19,500.00 for service provider satisfaction delivery to City of the services set forth in Exhibit “A” for the Initial Term. City shall pay the amount in one payment of $19,500.00, invoiced in full upon execution of this agreement.
Invoice sent electronically to City’s billing contact email via NetSuite.
Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
City is responsible for all applicable taxes arising directly from the Services other than U.S. taxes based on Placer’s net income.
If City believes that Placer has billed City incorrectly, City must contact Placer no later than sixty (60) 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 Placer’s customer support department at [email protected].
Should either Placer or City terminate this Agreement for any reason except for an event of non-payment or breach by City, Placer will remit to City the prorated Fee attributable to the balance of the Initial Term.
Placer may increase the Fees any time following the Initial Term (but not more frequently than once in any twelve (12) month period). The amount of such annual increase will equal the greater of CPI or five percent (5%) per annum. Service Provider shall provide the City with 30 days advance notice of any increase in fees.
All billing will be sent via electronic invoice to the City contact indicated above. City shall pay all fees within thirty (30) days of the invoice date.
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EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Placer shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Placer, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
Placer shall provide the following scope and limits of insurance:
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) Commercial General Liability. Insurance Services Office form Commercial General Liability coverage.
2. Minimum Limits of Insurance. Placer shall maintain limits of insurance no less than:
(1) Commercial General Liability. $1,000,000 general
aggregate for bodily injury, personal injury and property damage.
B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions:
1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
2. Commercial General Liability Coverages.
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contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees. (2) Placer’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Placer’s insurance. (3) Placer’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Placer.
C. Other Requirements. Placer agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Placer furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Placer shall furnish certificates and endorsements from each subcontractor identical to those Placer provides.
2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Placer shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
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3. The procuring of such required policy or policies of insurance shall not be construed to limit Placer’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.