Master SaaS and Services Agreement
This Master SaaS and Services Agreement (this "Agreement") is entered into effective this 1 de. lavender oration harp Perto Moneber, 2025 by and betan ariest Cance day of December, 2024 , until 30 of November ,- Columbia Startup Lab, New York, NY. 10014, and the City of Redondo Beach City of Redondo Beach ("'Customer"). Sharp Performance and Customer are sometimes referred to herein jointly as the "Parties" or singularly as a "Party." RECITALS:
WHEREAS, Customer desires to obtain access to the Services (as defined below) with respect to certain of its information technology needs, and Sharp Performance desires to provide the Services to Customer, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. SERVICES.
1.1 Purpose. This Agreement sets forth the terms and conditions under which Sharp Performance agrees to provide (i) certain hosted "software as a service" (the "Subscription Services") for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a "Platform") to Authorized Users, as further set forth and described on each order form (the "Order Form") attached hereto as Schedule A, and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (collectively the "Professional Services", and together with the Subscription Services, referred to herein as the "Services") related to Customer's access to, and use of, such Subscription Services and each Platform, as further set forth and described on each statement of services (the "Statement of Work") attached hereto as Schedule B, issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a "Statement of Services").
1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Sharp Performance shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to each Platform, and (ii) Customer the Professional Services.
Subject to the terms and conditions of this Agreement, during the Term, Sharp Performance hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16 herein), worldwide license to access and use each Platform, solely for internal business purposes in connection with Customer's use of the Services as set forth herein.
1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. Sharp Performance may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Sharp Performance's products or services to its customers, (b) the competitive strength of, or market for, Sharp Performance's products or services, (c) such Platform's cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USER
2.1 Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer's Sharp Performance account. Sharp Performance reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.2 Authorized Users. Customer may allow such number of Customer's employees and/or independent contractors as is indicated on an Order Form to use the applicable Platform on behalf of Customer as "Customer Users." Additionally, if applicable to a Platform, Customer may allow such number of (i) designees ("Vendor Users", and together with Customer Users, "Authorized Users") and, (ii) subject to Sharp Performance's then-current Vendor Terms of Use, its vendors ("Vendors") as is indicated on an Order Form, and their personnel, to access each Platform in connection with such Vendor's activity with Customer through such Platform. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to a new Authorized User replacing former Authorized Users who no longer require ongoing use of the applicable Platform.
2.3 Authorized User Conditions to Use. As a condition to access and use of a Platform (i) each Authorized User shall agree to abide by the terms of Sharp Performance's end-user terms of use which it may adopt from time to time, 11) Customer Users shall agree to abide by the terms of this Agreement. and (iii) Vendor Users shall agree to abide by the terms of the then-current Sharp Performance Vendor Terms of Service applicable to such Platform, and, in each case, Customer shall ensure such compliance.
Customer shall immediately notify Sharp Performance of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User as provided herein.
2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer's knowledge of such use, and (i) securing its Sharp Performance account, passwords (including but not limited to administrative and user passwords) and files. Sharp Performance is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
2.5 Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or 2 Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Platform; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Platform; (v) use the Services or Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, or (vi) input, upload, transmit, or otherwise provide any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code.
2.6 Reservation of Rights. Sharp Performance reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer property of Sharp Performance.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform ("Software"); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Sharp Performance, and Customer will comply with Section 4 with respect thereto.
3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Platform, Software, and the Services in full compliance with this Agreement, Periscope's end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Platform provided by Sharp Performance, (ii) understands the requirements thereof, and (iii) agrees to comply therewith.
Sharp Performance may suspend Customer's account and access to each Platform and performance of the Services at any time and without notice if Sharp Performance believes that Customer is in violation of this Agreement. Although Sharp Performance has no obligation to monitor Customer's use of a Platform, Sharp Performance may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
3.3 Cooperation. Customer shall provide all reasonable cooperation and assistance as Sharp Performance may reasonably request to enable Sharp Performance to exercise its rights and perform its obligations under, and in connection with, this Agreement. Customer, at its discretion, may provide Sharp Performance with such access to Customer's premises and its information technology infrastructure, as is necessary for Sharp Performance to perform the Services in accordance with this Agreement.
3.4 Training and Education. Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation each Platform such Customer Users utilize, and to ensure that each Platform is used in accordance with applicable 3 manuals, instructions, specifications and documentation provided by Sharp Performance from time to time.
3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining both the functionality and security ofany equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
3.6 Restrictions on Export. Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related to a Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
4. CONFIDENTIALITY.
4.1 Confidential Information. Each Party (the "Receiving Party") understands that the other party (the "Disclosing Party") has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information"). Confidential Information of Sharp Performance includes non-public information regarding features, functionality and performance of each Platform and Software.
Confidential Information of Customer includes non-public data provided by Customer to Sharp Performance to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer ("Customer Data"), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are Sharp Performance's Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality and prevent the unauthorized use or disclosure of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data. Sharp Performance shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, "Services IP"). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to Sharp Performance.
5.2 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6. FEES & PAYMENT
6.1 Fees. Customer shall pay Sharp Performance the then-applicable fees described in an Order Form or Statement of Work, as applicable, in accordance with the terms set forth therein ("Fees"), including, for the avoidance of doubt, any fees incurred through Customer's use of a Platform exceeding a services capacity parameter specified on an Order Form.
6.2 Renewal Fees. Upon the commencement of each Renewal Term, (i) Customer shall be liable to Sharp Performance for payment of a Renewal Fee. Customer hereby consents to Sharp Performance charging any such Renewal Fee to the credit card, or other payment method, associated with Customer's account without need to provide any further notice or receive any further consent.
Each "Renewal Fee" shall equal the Service Fee or Renewal Fee, as applicable, due to Sharp Performance during previous term as may be increased in Sharp Performance's sole discretion by a percentage up to the Fee Increase Percentage specified on the applicable Order Form; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to Sharp Performance for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.
6.3 Payment. Sharp Performance may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Sharp Performance sixty (60) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). In addition to any other remedies available, Sharp Performance may suspend Services in the event of payment delinquency.
6.4 Payment Disputes. If Customer believes that Sharp Performance has billed Customer incorrectly, Customer must contact Sharp Performance no later than thirty (30) days after the closing date on the first billing statement in which the alleged error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Sharp Performance's customer support department or the applicable Account Manager.
5 6.5 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Sharp Performance's income.
6.6 No Deductions or Setoffs. All amounts payable to Sharp Performance hereunder shall be paid by Customer to Sharp Performance in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the "Term"). The term of each Statement of Services shall begin on the applicable "Services Effective Date" and continue for the "Service Term," in each case as specified in such Statement of Services. Each Order Form may be renewed by mutual Amendment to this Agreement for one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a "Renewal Term"), provided that a written notice of intent to renew is received by the other Party at least thirty (30) days prior to the expiration of the then-current term of the Agreement.
7.2 Termination. Sharp Performance may terminate this Agreement upon written notice to Customer if no Statement of Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non- breaching party. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days' written notice to Sharp Performance, or (ii) if adequate funds to pay Sharp Performance all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way. Sharp Performance reserves the right to terminate this contract in the event of a merger, reorganization, consolidation, sale of assets, bankruptcy, and dissolution.
7.3 Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and Sharp Performance shall immediately cease providing the Professional Services. If (i) Sharp Performance terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
7.4 Survival. Sections [3.1, 4 6, 7.2, 7.4, and 9-17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.1 Warranties. Sharp Performance represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by a Platform and the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and each Platform and the Services does not and shall not violate any Customer's privacy policy, terms-of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government- issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children's Online Privacy Protection Act and the Gramm-Leach-Bliley Act.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A
STATEMENT OF SERVICE, SHARP PERFORMANCE DOES NOT WARRANT THAT ACCESS
TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE, NOR DOES SHARP PERFORMANCE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, SHARP
PERFORMANCE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING
TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES,
AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES
SHALL, AS BETWEEN SHARP PERFORMANCE AND SUCH SER VICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED "AS IS," AND SHARP PERFORMANCE DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-
INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNITY.
9.1 Sharp Performance Indemnification. To the maximum extent permitted by law, Sharp Performance hereby agrees, at its sole cost and expense, to defend protect, indemnify, and hold harmless Customer, its elected and appointed officials, officers, employees, volunteers, attorneys, and agents (collectively "Indemnitees") from and against any and all claims, including, without limitation, claims for intellectual property infringement, bodily injury, death or damage to property, demands, charges, obligations, damages, causes of action, proceedings, suits, losses, stop payment notices, judgments, fines, liens, penalties, liabilities, costs and expenses of every kind and nature whatsoever, in any manner arising out of, incident to, related to, in connection with or arising from any act, failure to act, error or omission of Sharp Performance's Services (including any of its officers, agents, employees, Subcontractors) or its failure to comply with any of its obligations contained in the Agreement, or its failure to comply with any current or prospective law, except for such loss or damage which was caused by the sole negligence or willful misconduct of Customer. Sharp Performance's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Sharp Performance or Indemnitees. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required under this Agreement.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Sharp 7 Performance's option, defend Sharp Performance from and against any damages, losses, liabilities, costs and fees (including reasonable attorney's fees) incurred by Sharp Performance resulting from any third- party claim, suit, action, or proceeding that is based on Customer's or any Authorized User's (i) use of the Services in a manner not authorized by this Agreement; (ii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Sharp Performance or authorized by Sharp Performance in writing; or (iii) modifications to the Services not made by Sharp Performance. This section sets forth Customer's sole obligation and liability and Sharp Performance's exclusive remedy with respect to any actions or losses described herein
9.3 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES
AND SHARP PERFORMANCE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL,
THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE,
OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.4 Insurance. Sharp Performance shall comply with the insurance requirements set forth in Exhibit D. Insurance requirements that are waived by the City's Risk Manager do not require amendments or revisions to this Agreement.
10. GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement is governed in all respects by the laws of the State of California, without giving effect to its rules relating to conflict of laws. Any action at law, suit in equity, or judicial proceeding arising out of this Agreement shall be instituted and maintained only in the Superior Court for the County of Los Angeles or the United States District Court for the Central District of California. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section ("Arbitration Notice"). The arbitration will be conducted in California by a single arbitrator knowledgeable in government contracting matters and the commercial aspect of "software as a service" arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories.
The arbitrator will provide detailed written explanations to the parties to support their aware and regardless of outcome, each party shall pay its own costs and expenses (including attorneys' fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
11. SECURITY. Sharp Performance may, from time to time, host and/or maintain a Platform using a third-party technology service provider. Customer acknowledges that Sharp Performance cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
8 12. PUBLICITY. Notwithstanding anything herein to the contrary, Customer acknowledges that Sharp Performance may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
13. NOTICES. All notices, consents, and other communications between the Parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient's address specified thereon.
All communications will be deemed to have been received on the date actually received. Either Party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
14. FORCE MAJEURE. Sharp Performance is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
15. ASSIGNMENT. Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Sharp Performance may only sublicense any or all of its obligations hereunder with prior written consent of Customer. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement. This Agreement is binding upon and insures to the benefit of the Parties and their respective permitted successors and assigns.
16. GENERAL PROVISIONS. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, schedules, annexes, and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words "hereof," "hereby," "herein," "hereto," and "hereunder" and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (i) the words "include," "includes" or "including" are deemed to be followed by the words "without limitation;" (il) references to a "Section" or "Exhibit" are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. 9 IN WITNESS WHEREOF, the undersigned execute this instrument as of the day and date first above written.
SHARP PERFORMANCE, INC. CITY OF REDONDO BEACH
- DocuSigned by
fouled
By: By: - 6BC085388F644F1_
Name: Benjamin Curley Name: James A. Light
Title: CEO/President Title: Mayor
ATTEST:
- DocuSigned by:
Cleanor Manzano
-72F2AC716C214CF.
Eleanor Manzano, City Clerk
12/4/2024 | 4:56 PM PST
APPROVED AS TO FORM:
•Docusigned by.
Michael IN. Well
Michael W. Webb, City Attorney
APPROVED:
— DocuSigned by:
Diane Strickfaden
- ABED8CF35EEF48C...
Diane Strickfaden, Risk Manager
10 Sharp Performance Inc.
2659 State St #100,
Carlsbad, CA 92008
[email protected], [email protected] Schedule A
Order Form
Customer: City of Redondo Beach
roduct: Subscription Services, Professional Services: unlimited access to Sharp coaches and chaplains, Shar elf-paced exercises and trainina, and partnership with Sharp to develop a customized resource director Authorized Users:
Police Department: ~150 users; ~100 sworn, ~50 civilians Fire Department: ~66 users; ~64 sworn, ~2 civilians
Dates: Services Effective Date: TBD
Service Term: 1 year from Contract date
Payment: Due upon delivery
Total Price: $75,600
Total Discount: 30%
Year 1
Police Department Annual Contract Value: $75,000
Discount: ~33% with free civilians
Price per User: $500/sworn
Total Year 1 Cost: $50.000
Fire Department Annual Contract Value: $33,000
Discount: ~20% with free civilians
Price per User: $400/sworn
Total Year 1 Cost: $25,600
11 Sharp Performance Inc.
2659 State St #100,
Carlsbad, CA 92008
[email protected], [email protected] Schedule B
Statement of Services
Customer:_City of Redondo Beach
Subscription Services: Unlimited access to application and all features within for authorized users (see Schedule A Order Form), and ongoing platform upgrades throughout the term of the contract.
Sharp Performance Mobile-App Features
1. Mental Performance Coaching. Connect with Sharp Performance's roster of highly-trained performance coaches.
Each coach has been specially trained to work with high-risk professionals and help them reach their full potential on the job and at home. Work with coaches often focuses on goal-setting and accountability. Users have unlimited access to coaches.
2. Self-Paced Training Modules. Access hundreds of mobile-based training exercises, adapted from training protocols originally developed for the U.S. Military's Special Operations teams. These 2 to 10-minute exercises are designed specifically for high-risk professions and have demonstrated significant improvements in focus, stress endurance, and psychological flexibility.
3. Resource Directory. Access a customized directory of health and wellness resources that is designed in close collaboration with your agency. The directory includes, but is not limited to, internal mental health services, chaplains, health incentives, national hotlines, and commercial partnerships exclusive to Sharp Performance.
Professional Services:
1. In-person onboarding with the Sharp team. Sharp leadership will travel to the agency and work directly with personnel to maximize engagement with the platform. Sharp will consult with agency leadership and determine the most effective way to provide services to the highest number of personnel possible including. Services include, but are not limited to, a platform overview, personalized performance strategies, 1-on-1 coach matching consultations, and testimonials from coaches and existing users.
Anonymized utilization reports. Share anonymized data on utilization and user satisfaction with Department Leadership and/or program point-of-contact on a quarterly basis.
3. Technical support. On-demand customer support.
Sharp Performance Inc. will not charge the customer for travel associated with In-person training overview, onboarding, and 12 EXHIBIT "D"
INSURANCE REQUIREMENTS FOR CONTRACTORS
Without limiting Contractor's indemnification obligations under this Agreement, Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto).
Workers' Compensation insurance as required by the State of California.
Employer's Liability Insurance.
Cyber Liability Insurance.
Minimum Limits of Insurance
Contractor shall maintain limits no less than:
General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. The general aggregate limit shall apply separately to this project.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Cyber Liability Insurance: $2,000,000 per occurrence for data breaches, cyberattacks, and other cybersecurity risks
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees and volunteers or (2) the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 13 Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Endorsement:
General Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of work performed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance, or as a separate owner's policy.
Automobile Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor.
For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, elected and appointed officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
Each insurance policy shall be endorsed to state that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverages afforded shall apply as though separate policies had been issued to each insured.
Each insurance policy shall be in effect prior to awarding the contract and each insurance policy or a successor policy shall be in effect for the duration of the project. The maintenance of proper insurance coverage is a material element of the contract and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract on the Contractor's part.
Acceptability of Insurers
Insurance shall be placed with insurers with a current A.M. Best's rating of no less than A:VII and which are authorized to transact insurance business in the State of California by the Department of Insurance.
14 Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on the City authorized forms provided with the contract specifications. Standard ISO forms which shall be subject to City approval and amended to conform to the City's requirements may be acceptable in lieu of City authorized forms. All certificates and endorsements shall be received and approved by the City before the contract is awarded. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
Subcontractors
Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
Risk Management
Contractor acknowledges that insurance underwriting standards and practices are subject to change, and the City reserves the right to make changes to these provisions in the reasonable discretion of its Risk Manager.
15 EMBROKER
ACORD® DATE (MM/DD/YYYY)
CERTIFICATE OF LIABILITY INSURANCE
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER Julie Noonan
Embroker Insurance Services LLC (AC, No):
(844) 436-2765
5214F Diamond Heights Blvd.øUnit #1261
San Francisco, CA, 94131 [email protected]
INSURERS) AFFORDING COVERAGE NAIC #
INSURER A : HARTFORD UNDERWRITERS INS CO 30104
INSURED INSURER B: HARTFORD ACCID & IND CO 22357
Sharp Performance Inc INSURER C: STATE NATL INS CO INC 12831 175 Varick St INSURER D:
C/o Columbia Startup Lab
INSURER E:
Manhattan New York, NY, 10014
INSURER F:
COVERAGES CERTIFICATE NUMBER: 59bf0af4-6ab9-11ef-b08c-d7f4513bb6d3 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOL NDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
ERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERN XCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIN
INSR TYPE OF INSURANCE DDL SUB POLICY NUMBER LIMITS
LTR SD Wv
X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 DAMAGE TO RENTED $ 1,000,000
CLAIMS-MADE X OCCUR PREMISES (Ea occurrence)
MED EXP (Any one person) $ 10,000
A Y Y 57SBMBD6V90 02/14/2024 02/14/2025 PERSONAL & ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 X POLICY PECT LOC PRODUCTS - COMPOP AGG $ 4.000,000
OTHER:
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 2,000,000
Ea accident
ANY AUTO BODILY INJURY (Per person)
A OWNED SCHEDULED Y Y 57SBMBD6V90 02/14/2024 02/14/2025 BODILY INJURY (Per accident) S
AUTOS ONLY AUTOS
X HIRED X NON-OWNED $
AUTOS ONLY AUTOS ONLY
UMBRELLA LIAB OCCUR EACH OCCURRENCE
EXCESS LIAB CLAIMS-MADE AGGREGATE
RETENTIONS
WORKERS COMPENSATION X STATUTE T
AND EMPLOYERS LIABILITY
57WECBD6V9B 02/14/2024 02/14/2025 E.L. EACH ACCIDENT $ 1,000,000 (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ 1,000,000 SO OPERATIONS blow EL. DISEASE - POLICY LIMIT $ 1,000,000 Tech EO Cyber Liability EHJADM00911437 03/20/2024 03/20/2025 Aggregate 2,000,000
CERTIFICATE HOLDER CANCELLATION
Redondo Beach Police Department NOTICE WILL
401 Diamond St ACCORDANCE WITH THE POLICY PROVISIONS.
Redondo Beach, CA, 90277
AUTHORIZED REPRESENTATIVE
paleronar
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