SUBSCRIPTION
Element LIMS
®
Laboratory Information Management
Prepared for:
City of Fresno Wastewater Laboratory
2600 F
resno Street
Fresno, CA 93721
Jeremy Yarbrough
Prepared by: Rick Persichitte
Da
te: May 1, 2023
Order number: C022020a
Promium, LLC
3350 Monte Villa Parkway, #220
Bothell, WA 98021-8963
1.877.PROMIUM
www.promium.com
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 2
HOSTED SERVICES AGREEMENT
3350 Monte Villa Parkway #220 Bothell, WA 98021 1.877.PROMIUM Order # C022020a
Prepared by: Rick Persichitte
Fresno CA
US 93721
Jeremy Yarbrough 559-621-5160 [email protected] Element LIMS® version 7 Currency: USD Effective: 4/13/2023 SOFTWARE License: Subscription Qty Price Subscription
BASE SOFTWARE Annual
Configuration: Environmental/Water Testing
Application Components Concurrent Users 12 2,600$ -$ 31,200$
-
Project Management Included
-
Sample Control Included
-
Laboratory Analysis Included
-
Quality Assurance Included
-
Reporting (Basic reports & EDDs) Included
Number of years 1 Subtotal -$ 31,200$
Element ClientConnect Annual
Promium Hosting Subscription 1 2,500$ -$ 2,500$
-$
Number of years 1 Subtotal -$ 2,500$
IMPLEMENTATION SERVICES Qty Price Total
Standard
1 35,360$ 35,360$
Subtotal 35,360$
Training
Administrator Training Onsite 1 6,320$ 6,320$
User Training Onsite 1 8,260$ 8,260$
Subtotal 14,580$
Additional Services
Outputs: EDDs, Reports, DMRs
1 2,340$ 2,340$
Subtotal 2,340$
Campus Online Resources Included - no charge -$ -$ Legacy Data Migration
Data Migration 10,000$
Subtotal Data Migration 10,000$
$ 62,280 $ 33,700
NOTES:
TERMS AND CONDITOINS This proposal expires after: 12/29/2023 Payment for Element LIMS software is billed at shipment/download and is due upon receipt of invoice.
Payment due net 30 days unless otherwise specified.
Delay in payments can result in discontinuation of services. Late payments may be subject to a 1 1/2% monthly late fee.
Element LIMS maintenance renewal periods for license upgrades may be pro-rated to reconcile the renewal period of all users.
A 3% processing fee may be applied to credit card transactions for Element LIMS.
Rev: AML072822
*Quoted reports includes these six reports: 13COF Bacti WMDLab Report, 13COF Nitrate WMDLab Report, 13PD Bacti WMDLab Report, 15COF Nitrate WMDLab Report, Daily Sewage WMDLab Report, & Digester Soild WMDLab Report.
Confidential - Not to be shared with any other parties.
TAXES: Even if we do not collect sales tax from you, your state may still require you to pay tax. Promium collects sales tax in WA, AZ, CA, FL, HI, IL, IN, MD, MI, NM, MO, NJ, NY, PA, RI, TN, TX, WI. A sales tax is not collected if we have your tax exemption certificate on file.
TOTAL SOFTWARE AND SERVICES
*See Notes Below
City of Fresno Wastewater Laboratory
On-site Assessment, other on-site/off-site hours defined at planning stage.
Promium Hosted
2600 Fresno Street
- Move to production and ready for go-live
- Parallel testing and validation
- Initial system testing
- Configuration and development
- Project initiation and assessment
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 3 Hosted Service Agreement
This Hosted Software Service Agreement ("Agreement") is a legal agreement between the City of Fresno, a California municipal Corporation, as applicable ("you" or "Customer") and Promium, L.L.C. ("Promium"). It governs the use of the online, hosted service versions of Element LIMS computer software, and any related documentation or downloadable applications provided to you by Promium (collectively, the "Software"). The term "Software" shall also include any printed documentation that may be provided to you.
By entering an order for a subscription to one or more of the Software products or using any part of them, you agree to be bound by the terms of this Agreement.
PROMIUM IS WILLING TO GRANT YOU A RIGHT TO USE ITS SOFTWARE ONLY IF YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. If you do not agree to these terms, do not use the Software.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or the entity to this Agreement; and (ii) you agree, on behalf of the party that you represent, to be bound by this Agreement. If you do not have such legal authority to bind your employer or the applicable entity, please contact Promium and do not access, download (as applicable), or use the Software.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
1. USE OF SOFTWARE.
a. Unless otherwise specified in writing by Promium, you may access and use the hosted version of the Software on an unlimited number of computers; provided however, that they may be used by a single business or government entity only.
b. For the Element LIMS product, the number of concurrent users of the Software shall be limited as described in your Promium Quotation form. Laboratory facilities sharing a single Element LIMS Production Database may share a single license, as long as all such facilities are both owned and operated by a single business or government entity. c. The Software may not be loaned or shared with any other business or government entity, including any affiliated companies, either by sharing log-in credentials or otherwise. Any such entity would need to purchase its own subscription to use the Software.
d. If you enable the Element ClientConnect viewing and reporting functionality, you may allow your laboratory clients to access appropriate data and reports via the Internet reporting features of the Software. If you enable the sample submission functionality, you may allow your sample generators to submit chain-of-custody records online or through the application, subject to any applicable terms of use for such usage.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
www.promium.com
1.877.PROMIUM
Promium, LLC Element LIMS® Subscription Contract V7-r010422 4 e. You agree that Promium may audit and inspect your use of the Software for compliance with these terms within thirty (30) days of a request. In the event that such audit reveals any use of the Software by you other than full compliance with the terms of this Agreement, you shall take immediate steps and provide payment as appropriate, to come into compliance.
f. To ensure optimal performance and security of the hosted Software, Promium will routinely perform maintenance on a regularly scheduled basis within its published maintenance windows. This may require specific services to be suspended during the maintenance period. Promium schedules maintenance windows outside of generally accepted business hours. As applicable, Promium will use commercially reasonable efforts to notify you in advance of any scheduled maintenance that may adversely affect hosted services. Under certain circumstances Promium may need to perform emergency maintenance, such as security patch installation or hardware replacement.
2. MAINTENANCE AND SUPPORT.
a. Maintenance and support is in effect for the duration of your Software subscription. The maintenance and support covers the current version of the Software product.
b. Unless otherwise communicated, telephone support is available Monday through Friday, 5:00am to 5:00pm Pacific Time, not including holidays recognized by Promium. At other times, a telephone or email message may be left and Promium personnel will respond within one business day. Emergency technical assistance provided outside of normal business hours may incur additional charges. Online documentation and other support materials may be available at www.promium.com/support or accessible directly through the product. Promium website is available twenty-four hours per day, seven days per week unless undergoing maintenance or repair. c. Each customer requiring support must designate a primary contact person to manage technical support requests.
Support requests should be directed to:
Promium Customer Support (Help Desk)
425.286.9200 phone
425.286.9201 fax
[email protected]
d. Promium may offer certain features, functions, reports, and other input or output which are not considered part of core software or services offered by Promium. These items are considered custom work. Deliverables including but not limited to, custom programming, custom reports, proprietary electronic deliverable programs, other special program functions on behalf of the user, and other custom services, outside the original purchase agreement, may incur additional charges as quoted by Promium.
e. Promium reserves the right to charge for support or programming services that are unrelated to the direct operation of its software products. This includes conflicts that may cause software failure due to firmware or device drivers or micro code problems introduced by the manufacturer or other parties. This also includes other software programs that may interfere with its software products.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 5
3. PAYMENT
Software Subscription and Maintenance
Invoice #1: Software subscription, including maintenance, is invoiced after access to the software is granted.
Payment is due upon receipt.
Installation Services (including outputs, training, development, and other services) The remaining portion of this order includes installation services and other deliverables as described in this contract and will be billed in three increments per the schedule below unless otherwise specified in the contract. Payment is due net thirty days.
Invoice #2: 35% billed at delivery of Administrator Training.
Invoice #3: 50% billed at delivery of User Training.
Invoice #4: 15% billed “Ready for Go-Live” stage.
For installations converting from a license purchase or lease (non-subscription) to a SaaS hosted subscription-based license, implementation payment terms are as follows:
• Implementation/Training of conversion to SaaS will be billed upon completion of conversion and due net 30 days. • Subscription and ClientConnect set up, if applicable, is billed upon order receipt.
Services for customers whose account includes invoices 30 days past due may be suspended until written payment arrangements have been made and accepted by Promium. Payments not made on or before the payment deadline shall be subject to a one-and-one-half percent (1½%) per month interest charge. In the event that Customer fails to make timely payment under this Agreement, Promium reserves the right to terminate this Agreement by providing Customer written notice of its election to do so.
Promium may revise subscription fees and per-unit charges from time to time upon 30-day written notice to Customer. For subscriptions, such revisions shall be effective upon the renewal date of Customer's subscription.
4. OWNERSHIP.
a. Title. Use of the Software is licensed to you for use via the internet only under the terms of this Agreement. Except as expressly licensed to you herein, Promium reserves the right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. Promium retains all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether made by Promium or any third party. You shall own all right, title and interest to the information contained in any database created by you for use with the Software. You shall not, however, own any right, title or interest to the schema, structure or design of any databases developed for use with the Software by Promium and may not disclose such schemas, structures or designs to a third party without the expressed written consent of Promium.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 6 b. Confidentiality. You acknowledge that the Software contains confidential, proprietary information and trade secrets of Promium. You agree, and shall take all appropriate steps, to ensure that the Software, or any portion thereof, is not disclosed or made available by you or anyone in your organization to any other unauthorized person, firm or organization without the prior written consent of Promium. You agree to properly restrict any persons permitted access to the Software so as to enable you to satisfy your obligations under this Agreement. c. Ownership and Retrieval of Data. All data created by you and residing in your database and records in the Software is fully owned by you. During the term of your subscription and for at least 30 days afterwards, a download of your data can be provided by Promium if requested. Additional fees may apply. After that time, your data will be deleted according to Promium's data purge policy.
d. Storage Size of Data. Promium imposes a maximum storage limitation for each of its products per its then-current storage policy, and it reserves the right to collect additional fees for or decline to accept excessive storage beyond the storage limitations.
5. OTHER RIGHTS AND LIMITATIONS.
a. Restrictions on Use. You agree to use the Software only for your own business or organization. You shall not (i) permit any parent, subsidiaries, affiliated entities or third parties to use the Software unless otherwise specifically agreed in writing by Promium, (ii) use the Software to process or permit to be processed the data of any other party, including any of your affiliates or related companies, (iii) use the Software in the operation of an ASP service, service bureau or similar services, or (iv) allow access to the Software through any computers located outside of your main facility or your designated remote facilities (this does not preclude laboratory clients from accessing appropriate data and reports and submitted chain-of-custody data via the features of the Software as discussed above). b. Limitations on Downloading, Copying, Reverse Engineering, and Similar Activities. You may not download, copy, reverse engineer, decompile, or disassemble the Software. For purposes of this Agreement, "reverse engineering" shall mean the examination or analysis of the Software or Proprietary Information to determine its source code, sequence, structure, organization, internal design, algorithms or encryption devices, and "Proprietary Information" shall mean all data, material, text, software, scripts, processes, graphics, other information or materials or portions thereof that are built into the Software.
c. Unauthorized Use. You may not distribute, rent, lease or sublicense the Software. d. Non-Competition. In no event may you use the Software or Proprietary Information to provide services similar to the Software in competition with Promium. In order to protect Promium's confidential information and trade secrets, you may not develop, provide, sell, rent, or resell any product or service which competes with the Software, or create or implement any such product or service for the purpose of competing with the Software provided hereunder while this Agreement is in effect and for a period of one (1) year following termination of this Agreement.
6. RESPONSIBILITY FOR USE.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 7 a. Responsibility for Use. You assume sole responsibility for the use of the Software and for any results obtained by you from the Software. You shall be solely responsible for necessary audit and verification of the sufficiency and accuracy of all reports, documents and other information prepared using the Software. You shall also be solely responsible for the nature and content of all data, information, materials or any other content submitted by you or your users through the Software.
b. Responsibility for Content -- You acknowledge and agree that: (i) Promium does not screen content from the sample generator users or any other content entered or imported into the Promium software, and it does not guarantee or warrant the accuracy, integrity, or quality of any such content; (ii) you will evaluate and bear all risks associated with the use by you or third parties of any such content, including any reliance on the accuracy, completeness, or usefulness of any chain-of-custody information or any other information or data; and (iii) Promium shall not be liable in any way for any such content, including, but not limited to, any errors or omissions in it, or for any loss or damages of any kind incurred as a result of the use of any such content by you or any third party. You acknowledge and agree that nothing in this Agreement or related to your use of the Software shall make Promium a party to any chain-of-custody document or similar.
c. Compliance with Laws -- All Products. You agree not to use the Software to violate any applicable local, state, national or international law or regulation. Although Promium does not actively monitor use of or data uploaded into the Software by its clients or their users, Promium reserves the right to suspend any use of the Software or any part thereof, or to remove or disable any content, which it reasonably believes violates this Agreement or any applicable law or regulation.
d. Indemnification -- All Products. Customer shall indemnify and defend Promium and hold it harmless from and against any loss, damage, or expense, including reasonable attorney’s fees, arising out of: (i) claims by third parties relating to analytical results, reports or other output provided to third parties by Customer from Customer’s use of the Software (unless such claim is due to Promium’s willful misconduct); (ii) unauthorized use of the Software by Customer as described in Sections 1 (Use of Software) and 6 (Other Rights and Limitations); (iii) any data, information or other content processed through the Software by Customer or Customer's sample generators or other users; or (iv) the failure of Customer to meet any of its obligations as described in this Agreement.
7. LIMITED SOFTWARE PRODUCT WARRANTY.
Promium warrants, for a period of ninety (90) days after access is first provided to you, that the Software will operate in conformance with the documentation supplied with the Software. Promium's sole obligation under this warranty is to, at Promium's sole option, correct or replace the Software so that it will perform as above warranted or refund a prorated portion of the related service fee. This warranty is void if any unauthorized modifications are made to the Software or if the Software is not used in compliance with its documentation.
8. DISCLAIMER OF WARRANTY AND LIMITATION OF REMEDIES AND LIABILITY. a. THE LIMITED WARRANTY PROVIDED HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.
OTHER THAN THIS LIMITED WARRANTY, THE SOFTWARE AND ANY ASSOCIATED SERVICES ARE DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 8 PROVIDED "AS IS," AND PROMIUM MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND. PROMIUM HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND/OR
REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, THAT MAY ARISE EITHER BY THE
PARTIES' AGREEMENTS OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
PROMIUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION,
REPRESENTATIONS OR WARRANTIES THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B)
THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR (C) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. This disclaimer shall not apply to the extent that it is prohibited by applicable law.
b. Promium will not be liable for any loss or damage caused by delay in furnishing the Software or any other performance under this Agreement.
c. Promium's entire liability and your exclusive remedies for liability of any kind (excluding liability for negligence as detailed in Exhibit A) related to the Software covered by this Agreement and all other performance or nonperformance by Promium under or related to this Agreement are limited to the remedies specified by this Agreement. REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE, THE LIABILITY OF PROMIUM SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE
AMOUNT OF THE SERVICE FEES PAID TO PROMIUM FOR USE OF THE SOFTWARE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM. IN NO EVENT SHALL PROMIUM BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, RELATED TO THE SOFTWARE OR ANY
ASSOCIATED SERVICES THAT PROMIUM MAY PROVIDE, EVEN IF PROMIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d. Some states or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for consequential or incidental damages, so the above exclusion may not apply to you. In such situations, Promium's liability shall be limited to the extent permitted by law. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
9. U.S. GOVERNMENT END-USERS.
For U.S. government end-users, Promium's Software and its documentation constitute a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. §227.7202. All U.S. government end- users acquire the Software with only those rights set forth herein, consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable. Manufacturer/contractor is Promium, L.L.C., 3350 Monte Villa Parkway, Suite 220, Bothell, Washington 98021.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D
www.promium.com
1.877.PROMIUM
Promium, LLC Element LIMS® Subscription Contract V7-r010422 9
10. TERM and TERMINATION.
a. This Agreement shall continue for the period of your Software subscription, unless terminated earlier as provided in this Agreement. Promium reserves the right to update or change it from time to time, effective upon the renewal of your subscription. The initial term of this agreement will be for a subscription term of one (1) year. For purposes of this agreement, the subscription term will commence once Customer confirms that it has been granted access to the Software. Thereafter, Customer, at its sole discretion, may renew its subscription for five one (1) year terms.
Any revised Agreement shall have no force and effect unless in writing and signed by the Customer and Promium. b. Without prejudice to any other rights, Promium may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement, including failing to make payments as due, by giving you written notice of such termination. After any termination of this Agreement, you must cease all use of the Software and immediately return any copies of the Software in your possession or under your control to Promium.
11. MISCELLANEOUS
a. In any suit, proceeding or action to enforce this Agreement, the substantially prevailing party shall be entitled to recover from the other party reasonable attorneys' fees and costs and expenses in connection with such suit, proceeding or action, including appeal. This Agreement shall be governed by and construed under the laws of the State of California without regard to its conflict of laws principles. The jurisdiction and venue for any suit or action between the parties shall be the state and federal courts of Fresno County, California. b. Failure to enforce any rights granted herein shall not be deemed a waiver as to subsequent enforcement of such rights. If any part of this Agreement is found void and/or unenforceable, it shall be modified in such manner as to be valid and enforceable but so as to most nearly retain the intent of the parties; and if such modification is not possible, it shall be deemed severed from this Agreement and shall not affect the validity and enforceability of the balance of the Agreement. If any material limitation or restriction on the grant of any license or restrictions on use of the Software under such license by Customer under this Agreement is found to be void or unenforceable, such license shall immediately terminate.
c. This Agreement is not assignable by Customer and the licenses granted hereunder may not be sublicensed, assigned or transferred by Customer in any manner without the prior written consent of Promium. Any such attempted sublicense, assignment or transfer shall be void. d. This Agreement, together with any accompanying Price quotation and Order, constitute the entire understanding and agreement of the parties with respect to its subject matter. Any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. The terms and conditions of this Agreement prevail over the terms and conditions of any other order (such as a purchase order) submitted by Customer for the Software. This Agreement may be amended only by written instrument signed by both parties subsequent to the date hereof. Any terms of this Agreement which by their nature extend beyond the Agreement termination or expiration shall remain in effect until fulfilled. These include Sections 5, 6, 7, 9 and 12.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 10 e. Should you have any questions concerning this Agreement or its associated documents, or if you desire to contact Promium for any reason, please contact:
Promium, L.L.C.
3350 Monte Villa Parkway, Suite 220
Bothell, Washington 98021
425.286-9200 Phone
425-286-9201 Fax
Master: 010120 Customer Revision:
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D w ww.promium.com
1.877.PROMIUM
Promium, LLC E lement LIMS® Subscription Contract V7-r010422 11 Order
INSTALLATION LOCATION BILLING INFORMATION (if different) Organization O rganization
Street S treet
City Ci ty
State/Province St ate/Province
Postal Code P ostal Code
Country C ountry
County C ounty
Contact: C ontact
Title T itle
Phone P hone
Email E mail
Fax F ax
Purchase Order Number: PO attached Not required PO Number only Tax Exempt Yes Certificate attached
For GSA qualified labs: Use GSA Decline GSA
Maintenance Billing (if different)
Contact name:
Title:
Phone:
Email:
Fax:
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written.
CITY OF FRESNO,
A California municipal corporation
By:
Brock D. Buche, PE, PLS
Director
Department of Public Utilities
APPROVED AS
TO FORM:
ANDREW JANZ
City Attorney
By:
Jennifer M. Quintanilla Date
Senior Deputy City Attorney
ATTEST:
TO
DD STERMER, CMC
City Clerk
By:
Deputy Date
Promium, L.L.C.
a Limited Liability Corporation
By:
Name:
Title
:
(If corporation or LLC., Board Chair, Pres. or
Vice Pres.)
By:
Name:
Title
:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
CONSULTANT:
Promium LLC
Attention: Rick Persichitte
Regional Account Manager
3350 Monte Villa Parkway, Suit 220
Bothell, WA 98021
Phone: (425) 318-6854
E-mail: [email protected]
12 Addresses:
CITY:
City of Fresno
Attention: Peter A. Maraccini, PE, PhD
Public Utilities Manager
1626 E Street
Fresno, CA 93706
Phone: (559) 621-1603
E-mail: [email protected]
Exhibit A – Indemnification and Insurance Requirements
Peter A Maraccini, PE, PhD
Public Utilities Manager
Department of Public Utilities
Michael Simpson
President
Andrew Branski
Chief Financial Officer and Treasurer
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D 6/6/2023
6/6/2023
6/6/2023
6/6/2023
Exhibit A
Indemnification and Insurance Requirements
To th
e furthest extent allowed by law, Promium shall defend, indemnify and hold harmless Customer from and against any and all direct and indirect claims, losses, liabilities, damages, costs and expenses (including including losses and costs incurred by You and any reasonable attorney's fees and costs) which arise from Promium’s negligence or willful misconduct; a breach of Promium’s confidentiality (information not of public record) obligations arising from Promium’s negligence or willful misconduct; or Promium’s violation of a law applicable to Promium’s performance under the contract. Customer must notify Promium promptly in writing of the claim and give Promium control over its defense or settlement with Customer’s approval, reasonable approval will not be withheld. Customer agrees to provide Promium with reasonable assistance, cooperation, and information in defending the claim at Promium’s expense. Promium will defend, indemnify, and hold harmless Customer from third‐party claims that the software and/or documentation infringes an intellectual property.
Th
is section shall survive termination or expiration of this Agreement.
Th
roughout the life of this Agreement, Promium shall procure and maintain the following insurance:
Cov
erage shall be at least as broad as:
1. The
most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The m
ost current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).
3. Wor
kers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
4. Technology Professional Liability (Errors and Omissions) insurance appropriate to PROMIUM’S profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by PROMIUM in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations.
MINIMUM LIMITS OF INSURANCE
PROMIUM, or any party the PROMIUM subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CUSTOMER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits.
4. EMPLOYER’S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. TECHNOLOGY PROFESSIONAL LIABILITY (Errors and Omissions) appropriate to the Promium’s profession:
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D In the event PROMIUM purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CUSTOMER, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
PROMIUM shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and PROMIUM shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CUSTOMER’S Risk Manager or his/her designee. At the option of the CUSTOMER’S Risk Manager or his/her designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CUSTOMER, its officers, officials, employees, agents and volunteers; or
(ii) PROMIUM shall provide a financial guarantee, satisfactory to CUSTOMER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CUSTOMER be responsible for the payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions:
1. CUSTOMER, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. PROMIUM shall establish additional insured status for the CUSTOMER and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection afforded to CUSTOMER, i ts officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, PROMIUM’S insurance coverage shall be primary insurance with respect to the C USTOMER, its officers, DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D officials, employees, agents and volunteers. Any insurance or self - insurance maintained by the CUSTOMER, its officers, officials, employees, agents and volunteers shall be excess of PROMIUM’S insurance and shall not contribute with it. PROMIUM shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13.
The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: PROMIUM and its insurer shall waive any right of subrogation against CUSTOMER, its officers, officials, employees, agents and volunteers.
If the Technology Professional (Errors and Omissions) insurance policy is written on a claims-made form:
1. T
he retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by PROMIUM.
2. I
nsurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.
3. I
f coverage is canceled or non- renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by PROMIUM , PROMIUM must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first.
4. A
copy of the claims reporting requirements must be submitted to CUSTOMER for review.
5. T
hese requirements shall survive expiration or termination of the Agreement.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non- renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CUSTOMER. PROMIUM is also responsible for providing written notice to the CUSTOMER under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non- renewal, or reduction in coverage or in DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D limits, PROMIUM shall furnish CUSTOMER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CUSTOMER, PROMIUM shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
S
hould any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
T
he fact that insurance is obtained by PROMIUM shall not be deemed to release or diminish the liability of PROMIUM, includin g, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by PROMIUM. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of PROMIUM, its principals, officers, agents, employees, persons under the supervision of PROMIUM, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
VERIFICATION OF COVERAGE
P
ROMIUM shall furnish CUSTOMER with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CUSTOMER’S Risk Manager or his/her designee prior to CUSTOMER’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CUSTOMER, PROMIUM shall immediately furnish CUSTOMER with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
DocuSign Envelope ID: 7510E3C5-BC9F-458C-80F8-02E2C3365D7D