CITY OF RICHMOND
STANDARD CONTRACT
Department: Project Manager:
Project Manager E-mail: Project Manager Phone No:
PR No: Vendor No: P.O./Contract No:
Description of Services:
The parties to this STANDARD CONTRACT do mutually agree and promise as follows:
1. Parties. The parties to this Contract are the City of Richmond (herein referred to as the “City”) and the following named Contractor:
Company Name:
Street Address:
City, State, Zip Code:
Contact Person:
Telephone: Email:
Business License No: / Expiration Date:
A California [ ] corporation, [ ] limited liability corporation [ ] general partnership, [ ] limited partnership, [ ] individual, [ ] non-profit corporation, [ ] individual dba as [specify:] , [ ] other [specify:]
2. Term. The effective date of this Contract is and it terminates unless terminated as provided herein.
3. Payment Limit. City’s total payments to Contractor under this Contract shall not exceed $ . City shall not pay for services that exceed the Contract Payment Limit unless a contract amendment has been approved by the City Council or City Manager.
4. Contractor’s Obligations. Contractor shall provide those services and carry out that work described in the Service Plan (Exhibit A) which is attached hereto and is incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
5. City's Obligations. City shall make to the Contractor those payments described in the Payment Provisions (Exhibit B) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
6. Authorized Representatives and Notices. This Contract is subject to the Authorized Representatives and Notices Provisions (Exhibit C) which are attached hereto and are incorporated herein by reference.
7. General Conditions. This Contract is subject to the General Conditions (Exhibit D) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein.
8. Special Conditions. This Contract is subject to the Special Conditions (Exhibit E) (if any) which are attached hereto and are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein. (Note:
other than Public Works contracts, the City will agree to Special Conditions only in unusual circumstances.)
9. Insurance Provisions. This Contract is subject to the Insurance Provisions (Exhibit F) which are attached hereto and are incorporated herein by reference.
10. Signatures. These signatures attest the parties' Contract hereto:
CITY OF RICHMOND CONTRACTOR:
a municipal corporation
By:
(* The Corporation Chairperson of the Board,
President or Vice President should sign below)
Title:
By:
I hereby certify that this Contract Title:
has been approved by City Council.
Date Signed:
B
y :
City Clerk
(* The Corporation Chief Financial Officer,
Secretary or Assistant Secretary should sign below)
Approved as to form:
B
y :
B
y : T
i t l e :
City Attorney
Date
Signed:
(NOTE:
Pursuant to California Corporations
Code Section 313, if Contractor is a corporation
or nonprofit organization, this Contract (1) must
be signed by (a) the Chairperson of the Board,
President or Vice-President and
(b) the
Secretary any Assistant Secretary, the Chief
Financial Officer or any Assistant Treasurer.
LIST OF ATTACHMENTS:
Service Plan
Exhibit A
Payment Provisions Exhibit B
Authorized Representatives and Notices Exhibit C
General Conditions Exhibit D
Special Conditions Exhibit E
Insurance Provisions Exhibit F
Standard Contract/EJ/TE 9-26-07
For the Contract between the City of
Richmond and
EXHIBIT A
SERVICE PLAN
Contractor shall, to the satisfaction of the , perform the following services and be compensated as outlined below:
NEOGOV ORDER FORM
NEOGOV:
GovernmentJobs.com, INC. (dba “NEOGOV”)
2120 Park Place, Suite 100
El Segundo, CA 90245
[email protected]
Customer Name & Address:
Richmond, City of (CA)
450 Civic Center Plaza
Richmond, CA 94804-0046
Quote Creation Date: 12/14/2022 Contact
Name:
Dorothy Mandujano
Quote Expiration Date: 30 days from Quote Creation Contact Email: [email protected] Payment Terms Annual. Net 45 from NEOGOV invoice. FTE:
Subscription Start Date: 01/27/2023
Subscription Term (months): 36
Fee Summary
Service Description Term Term Fees
Insight Enterprise Subscription (IN) 01/27/2023 - 01/26/2024 $13,737.35 GovernmentJobs.com Subscription (GJC) 01/27/2023 - 01/26/2024 $2,340 Insight Enterprise Subscription (IN) 01/27/2024 - 01/26/2025 $14,561.60 GovernmentJobs.com Subscription (GJC) 01/27/2024 - 01/26/2025 $2,340 Insight Enterprise Subscription (IN) 01/27/2025 - 01/26/2026 $15,435.30 GovernmentJobs.com Subscription (GJC) 01/27/2025 - 01/26/2026 $2,480.40 Total 2023 - 2024: $16,077.35
Total 2024 - 2025: $16,991.60
Total 2025 - 2026: $17,915.70
A. Terms and Conditions
1. Agreement. This Ordering Document and the Services purchased herein are expressly conditioned upon the acceptance of this Order Form, the NEOGOV Services Agreement, Service Plan (Exhibit A), Payment Provisions (Exhibit B), Authorized Representatives and Notices (Exhibit C), General Conditions (Exhibit D), Special Conditions (Exhibit E), and the Insurance Provisions (Exhibit F) affixed hereto. Unless otherwise stated, all capitalized terms used but not defined in this Order Form shall have the meanings given to them in the NEOGOV Services Agreement.
2. Effectiveness & Modification. The Effective Date shall be the Subscription Start Date. This Order Form may not be modified or amended except through a written instrument signed by the parties.
3. Summary of Fees. Listed above is a summary of Fees under this Order. Once placed, your order shall be non-cancelable and the sums paid nonrefundable, except as provided in the Agreement.
B. Special Conditions (if any).
1. Section 2(b) Subscription Term is amended to read as: Unless otherwise specified in an applicable Order Form, SaaS Subscriptions shall commence on the Effective Date and remain in effect for thirty six (36) consecutive months, unless terminated earlier in accordance with this Agreement (the “Initial Term”).
IN WITNESS WHEREOF, this Order has been executed by such party’s duly authorized signatory as of the date set forth below, and such duly authorized signatory consents to the Agreement.
Customer
GovermentJobs.com, Inc. (D/B/A/ NEOGOV), on behalf of
itself and its subsidiaries PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC (D/B/A/ PlanIT Schedule), and Design PD,
LLC (D/B/A Agency360)
Entity Name:
Signature: Signature:
Print Name: Print Name:
Date: Date:
City of Richmond
SERVICES AGREEMENT
V032122
You agree that by placing an order through a NEOGOV standard ordering document entitled an “Order Form”, “Service Order,” or “SOW” (each, an “Order Form” for purposes of this Agreement) you agree to follow and be bound by the terms and conditions set forth herein. “Governmentjobs.com”, “NEOGOV”, “we”, and “our” means Governmentjobs.com, Inc. (D/B/A/ NEOGOV),
for
and on behalf of itself and its subsidiaries PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC (D/B/A/ PlanIT Schedule),
and Design PD, LLC (D/B/A Agency360) (collectively, “NEOGOV” and, where applicable, its other affiliates; “Customer”, “you”, “your” means the NEOGOV client, customer, or subscriber identified in the Order Form).
If you are placing an order on behalf of a legal entity, you represent that you have the authority to bind such entity to the terms and conditions of the Order Form and these terms and, in such event, “you” and “your” as used in these agreement terms shall refer to such entity. “Agreement” shall be used to collectively refer to this NEOGOV Services Agreement (the “Services Agreement” or the “Agreement”), documents incorporated herein including the applicable Order Form, Exhibits, Schedule(s), and Special Conditions (if any). “Special Conditions” means individually negotiated variations, amendments and/or additions to this Service Agreement of which are either drafted, or incorporated by reference, into the Order Form.
1. Provision of Services. Subject to the terms of this Agreement NEOGOV hereby agrees to provide Customer with access to its SaaS Applications and Professional Services (each defined below) included or ordered by Customer in the applicable Order Form (collectively referred to as the “Services”). Customer hereby acknowledges and agrees that NEOGOV’s provision and performance of, and Customer’s access to, the Services is dependent and conditioned upon Customer’s full performance of its duties, obligations and responsibilities hereunder. This Agreement entered into as of the date of your signature on an applicable Order Form or use of the Services commences (the “Effective Date”). The Agreement supersedes any prior and contemporaneous discussions, agreements or representations and warranties.
2. SaaS Subscription.
a) Subscription Grant. “SaaS Applications” means each proprietary NEOGOV web-based software-as-a-service application that may be set forth on an Order Form and subsequently made available by NEOGOV to Customer, and associated components as described in any written service specifications made available to Customer by NEOGOV (the “Service Specifications”). Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, NEOGOV hereby grants to Customer a limited, non-exclusive, non-transferable, and non-sublicensable right to (a) onboard, access and use, and to permit Authorized Users to onboard, access and use, the SaaS Applications specified in the Order Form solely for Customer’s internal, non-commercial purposes; (b) generate, print, and download Customer Data as may result from any access to or use of the SaaS Applications; and (c) train Authorized Users in uses of the SaaS Applications permitted hereunder (these rights shall collectively be referred to as the “SaaS Subscription”). “Authorized Users” means (i) Customer employees, agents, contractors, consultants (“Personnel”) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Services Agreement and (ii) for whom access to the Services has been purchased hereunder. You may not access the SaaS Applications if you are a direct competitor of NEOGOV or its affiliates. In addition, you may not access the SaaS Applications for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. You shall be responsible for each Authorized User’s access to and use of the SaaS Applications and compliance with applicable terms and conditions of this Agreement.
b) Subscription Term. Unless otherwise specified in an applicable Order Form, SaaS Subscriptions shall commence on the
Effective Date and remain in effect for thirty six (36) consecutive months, unless terminated earlier in accordance with this Agreement (the “Initial Term”). Thereafter, and subject to Exhibit A, SaaS Subscriptions shall automatically renew for successive twelve (12) month terms (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless a party delivers to the other party, at least thirty (30) days prior to the expiration of the Initial Term or the applicable Renewal Term, written notice of such party’s intention to not renew this Agreement, or unless terminated earlier in accordance with this Agreement. The Term for the Services is a continuous and non-divisible commitment for the full duration regardless of any invoice schedule. The purchase of any Service is separate from any other order for any other Service. Customer may purchase certain Services independently of other Services. Your obligation to pay for any Service is not contingent on performance of any other Service or delivery of any other Service.
3. Customer Responsibilities. Customer will not, and will ensure its Authorized Users do not (a) make any of the Services available to anyone other than Authorized Users or use any Services for the benefit of anyone other than Customer and its 1 Authorized Users, unless otherwise agreed in writing by the parties, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, unless otherwise agreed in writing by the parties, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, (d) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Services (including, without limitation, activities such as security penetration tests, stress tests, and spamming activity), (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) disassemble, reverse engineer, or decompile the Services, or modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (h) remove the copyright, trademark, or any other proprietary rights or notices included within NEOGOV Intellectual Property and on and in any documentation or training materials, or (i) use the Services in a manner which violates the terms of this Agreement, any Order Form or any applicable laws.
4. Professional Services. “Professional Services” shall mean consulting, training services purchased by Customer in an applicable Order Form or detailed in a NEOGOV Scope of Work (SOW) relating to assistance, training, deployment, usage, customizations, accessory data processing, and best practices of and concerning the SaaS Applications. Professional Services may be ordered by Customer pursuant to a SOW and Service Specifications describing the work to be performed, fees, and any applicable milestones, dependencies, and other technical specifications or related information. Order Forms or SOWs must be signed by Customer before NEOGOV shall commence work. If Customer does not execute a separate SOW, the Services shall be provided as stated on the Order Form and this Agreement and documents incorporated herein shall control. All Professional Services purchased by Customer must be utilized within twelve (12) months of the date of the applicable Order Form or SOW.
5. Payment Terms.
a) Fees. Unless otherwise stated in an Order Form, Customer shall pay all Subscription, Onboarding and Set-Up fees (“Subscription Fees”) and Professional Service fees (“Professional Service Fees”, collectively the “Fees”) within thirty (30) days of Customer’s receipt of NEOGOV’s invoice. Fees shall be invoiced annually in advance and in a single invoice for each Term. Invoices shall be delivered to the stated “Bill To” party on the Order Form. Unless explicitly provided otherwise, once placed the Order Form is non-cancellable and sums paid nonrefundable. Any invoiced amount that is not received by NEOGOV when due as set forth in an Order Form will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is lower. If any amount owing by Customer is more than 30 days overdue, NEOGOV may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Subscription Fees are based upon the Authorized User count unless otherwise stated in an Order Form and Customer shall owe NEOGOV supplemental Subscription Fees to the extent Customer exceeds the number of Authorized Users set forth in the Order Form. Except as otherwise specifically stated in the Order Form, NEOGOV may change the charges for the Services with effect from the start of each Renewal Term by providing Customer with a new Order Form at least thirty (30) day notice prior to commencement of a Renewal Term. The new Order Form shall be deemed to be effective if Customer (a) returns the executed Order Form to NEOGOV , (b) remits payment to NEOGOV of the fees set forth in the invoice referencing the Order Form, or (c) the Customer or any of its Authorized Users access or use the Services after the expiration of the previous Term. b) Taxes. Customer will pay all taxes, duties and levies imposed by all federal, state, and local authorities (including, without limitation, export, sales, use, excise, and value-added taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on NEOGOV’s net income or those exempt by applicable state law.
Customer shall provide NEOGOV with a certificate or other evidence of such exemption within ten (10) days of NEOGOV’s request therefor.
c) Customer Purchase Orders. Except as otherwise specified in an Order Form, Customer will not require any purchase order to pay fees due or otherwise to perform its obligations with respect to any Order Form. Any reference to a purchase order in an Order Form or any associated invoice is solely for Customer's convenience in record keeping, and no such reference or any delivery of services to Customer following receipt of any purchase order shall be deemed an acknowledgement of or an agreement to any terms or conditions referenced or included in any such purchase order.
If a
purchase order is delivered by Customer in connection with the purchase of Services, none of the terms and conditions contained in such purchase order shall modify or supersede the terms and conditions of this Agreement. NEOGOV’s failure to object to terms contained in any such purchase order shall not be a waiver of the terms set forth in this provision or in this Agreement.
6. Term and Termination.
2 a) Term. UnlessotherwisespecifiedinanapplicableOrderForm,thisAgreementshallcommenceontheEffectiveDate.ThisAgreementshallremainineffectuntilallSaaSSubscriptionshaveexpiredand/orbothpartieshaveachievedfullperformanceofProfessionalServicesorotherservicesdetailedinaSOW,unlessitisterminatedearlierinaccordancewith this Agreement. b) TerminationforCause;EffectofTermination. EitherPartymayterminatethisAgreementimmediatelyiftheotherisinmaterialbreachofthisAgreementandsuchbreachisnotcuredwithinthirty(30)daysfollowingnon-breachingparty’swrittenspecificationofthebreach.NEOGOVmaysuspendtheServicesorterminatethisAgreementimmediatelyintheeventtheServicesorCustomer’s useoftheServicesprovidedhereunderposea securityrisktotheServices,NEOGOVoranythirdparty, orbecomeillegalorcontrarytoanyapplicablelaw, rule,regulation,orpublicpolicy.UponexpirationoranyterminationofthisAgreement,CustomershallceasealluseandrefrainfromallfurtheruseoftheServicesandotherNEOGOVIntellectualProperty. Additionally, Customershallbeobligatedtopay, asoftheeffectivedateofsuchexpirationortermination,allamountsdueandunpaidtoNEOGOVunderthisAgreement.Unlessotherwisespecified,afterexpirationorterminationofthisAgreementNEOGOVmayremoveCustomerDatafromNEOGOV Services and without Customer consent or notice.
7. AuditRights. Uponreasonablenotice,NEOGOVoritsagentshallhavetherighttoauditCustomer’srecordsrelatingtoitscompliancewiththisAgreement.Customershallcooperatefullywiththisaudit.IfanyauditconductedunderthisSectionindicatesthatanyamountduetoNEOGOVwasunderpaid,Customershallwithinthree(3)businessdayspaytoNEOGOVthe amountdue. Allexpensesassociatedwithanysuchauditshallbe paidby NEOGOVunlesstheauditrevealsunderpaymentinexcessoffivepercent(5%),inwhichcaseCustomershallpaysuchexpensesaswellasanyamountduetoNEOGOV.
8. Maintenance; Modifications; Support Services.
a) Maintenance,Updates,Upgrades. NEOGOVmaintainsNEOGOV’s hardwareandsoftwareinfrastructurefortheServicesandisresponsibleformaintainingtheNEOGOVserveroperationandNEOGOVdatabasesecurity.NEOGOVmayinitssolediscretion,periodicallymodify,Update,andUpgradethefeatures,components,andfunctionalityoftheServicesduringtheTerm. “Update”meansanyupdate,bugfix,patchorcorrectionoftheServicesorunderlyingNEOGOVsoftwarethatNEOGOVmakesgenerallyavailableto its customersof thesamemodule,excludingUpgrades.UpdatesareautomaticandavailableuponCustomer’s nextlogintotheServicesfollowinganUpdateatnoadditionalcosttoCustomer. “Upgrade”meansanyupdateoftheServicesorunderlyingNEOGOVsoftwaresuchasplatformupdates,andmajorproductenhancementsand/ornewfeaturesthatNEOGOVmakescommerciallyavailable.NEOGOVshallhavenoobligationtoprovideUpgradestocustomersandretainstherighttoofferUpgradesfreeofcostor on a percustomerbasisat additionalcost.NEOGOVshallhaveno liabilityfor, or anyobligationsto,investmentsin,ormodificationstoCustomer’s hardware,systemsorothersoftwarewhichmaybenecessarytouseoraccess the Services due to a modification, Update, or Upgrade of the Services. b) ProgramDocumentation;TrainingMaterials. “ProgramDocumentation”shallmeanall userguides,training,andimplementationmaterial,andServicedescriptionsprovidedbyNEOGOVtoCustomerinconnectionwiththeServices.NEOGOVherebygrantstoCustomera non-exclusive,non-sublicensable,non-transferablelicensetouse,print,anddistributeinternallyvianon-publicplatforms,theProgramDocumentationduringtheTermsolelyforCustomer'sinternalbusinesspurposesin connectionwithits useof theServices.PrimarytrainingofNEOGOVServicesisconductedbyself-reviewofonlinematerials.NEOGOV’s pre-built,onlinetrainingconsistsofa seriesoftutorialstointroducethestandardfeaturesandfunctions(the“TrainingMaterials”).TheTrainingMaterialsmaybeusedasreference material by Customer Personnel conducting day-to-day activities. c) Implementation. ForServicesrequiringimplementation,NEOGOVimplementationsupplementstheTrainingMaterialsandisconductedoff-siteunlessotherwiseagreedintheOrderForm.NEOGOVpersonnelwillprovideconsultationonbestpracticesforsettingup theServices,answerCustomerquestionsduringtheimplementationperiod,andusecommerciallyreasonableeffortstoensureAuthorizedUserAdminsgraspthesystem.ThelengthoftheimplementationtimeisdependentonthetypeofServiceandtheCustomer’sresponsiveness.NEOGOVisnotresponsibleorliableforanydelayor failureto performimplementationcausedinwholeorinpartbyCustomer'sdelayinperformingitobligationshereunderand,intheeventofanysuchdelay, NEOGOVmay, initssolediscretion,extendallperformancedates as NEOGOV deems reasonably necessary. d) Support. PhonesupportfortheServicesis availableto CustomerMondaythroughFriday, excludingNEOGOVholidays.CustomermaysubmitarequestforonlinesupportfortheServices24hoursaday,sevendaysaweek,and the 3 NEOGOVsupportdeskwillacknowledgereceiptoftherequestwithina reasonabletime.Thelengthoftimeforaresolution of any problem is dependent on the type of case. e) Limitations. UnlessotherwisespecifiedintheOrderForm,thisAgreementdoesnotobligateNEOGOVtorenderanymaintenanceorsupportservicesthatarenotexpresslyprovidedherein,including,butnotlimitedtodatauploads,manualdataentry, migrationservices,dataconversion,refinement,purification,reformatting,SQLdump,orprocessconsultation.
9. NEOGOVIntellectualProperty. NEOGOVshallexclusivelyownallright,titleandinterestinandtoallpre-existingandfutureintellectualpropertydevelopedor deliveredby NEOGOVincludingall Services,products,systems,software(includinganysourcecodeorobjectcode)orServiceSpecificationsrelatedthereto,UpdatesorUpgrades,trademarks,servicemarks,logosandotherdistinctivebrandfeaturesof NEOGOVandall proprietaryrightsembodiedtherein(collectively, the“NEOGOVIntellectualProperty”).ThisAgreementdoesnotconveyortransfertitleorownershipoftheNEOGOVIntellectualPropertytoCustomeroranyofitsusers.AllrightsnotexpresslygrantedhereinarereservedbyNEOGOV. Otherthanrecommendationuseorasrequiredbylaw,alluseofNEOGOVtrademarksmustbepre-approvedbyNEOGOVpriortouse.Trademarksshallincludeanyword,name,symbol,color, designationordevice,oranycombinationthereofthatfunctionsasa sourceidentifier, includinganytrademark,tradedress,servicemark,tradename,logo,designmark, or domain name, whether or not registered.
10. Data Processing and Privacy.
a) CustomerData. “CustomerData”shallmeanalldatathatisownedordevelopedbyCustomer, whetherprovidedtoNEOGOVbyCustomerorprovidedbyathirdpartytoNEOGOVinconnectionwithNEOGOV’sprovisionofServicesto Customer, includingPersonneldatacollected,loadedinto,or locatedin CustomerdatafilesmaintainedbyNEOGOV. NEOGOVIntellectualProperty, includingbutnotlimitedtotheServicesandallderivativeworksthereof,NEOGOVConfidentialInformation,andPlatformDatadonotfallwithinthemeaningoftheterm“CustomerData”.Customerexclusivelyownsallright,title,andinterestinandtoallCustomerData.CustomergrantsNEOGOValicensetohost,use,process,display, createnon-personalderivativeworksof,andtransmitCustomerDatatoprovidetheServices.NEOGOVreservestherighttodeleteordisableCustomerDatastored,transmittedorpublishedbyCustomerusingtheServicesuponreceiptofa bonafidenotificationthatsuchcontentinfringesupontheIntellectualPropertyRightsof others,or if NEOGOVotherwisereasonablybelievesanysuchcontentis inviolationofthisAgreement. b) PlatformData. “PlatformData”shallmeananyanonymizeddatareflectingtheaccessoruseoftheServicesbyoronbehalfof Customeror anyuser, includingstatisticalorotheranalysisandperformanceinformationrelatedtotheprovisionandoperationoftheServicesincludinganyenduservisit,session,impression,clickthroughorclickstreamdata,aswellaslog,device,transactiondata,orotheranalysis,information,ordatabasedonorderivedfromanyoftheforegoing.NEOGOVshallexclusivelyownall right,titleandinterestin andto all PlatformData.CustomeracknowledgesNEOGOVmaycompilePlatformDatabasedonCustomerDatainputintotheServices.Customeragreesthat NEOGOV may use Platform Data to the extent and in the manner permitted under applicable law. c) Data Processing Agreement. To the extent Customeruses the Services to target and collect personal information fromusers located in the European Union, European Economic Area, or Switzerland (the “EU”) or the United Kingdom(“UK”), or has Authorized Users accessing the Services from the EU or UK, the following NEOGOV Data ProcessingAddendum (“DPA”) is incorporated herein by reference:https://www.neogov.com/hubfs/Legal%20Documents/Customer%20Data%20Processing%20Addendum-signed.pdf. d) Data Responsibilities.
i) NEOGOVwillmaintainadministrative,physical,andtechnicalsafeguardsfor protectionof the security,confidentialityandintegrityoftheCustomerData.Thosesafeguardswillinclude,butwillnotbelimitedto,measuresforpreventingaccess,use,modificationordisclosureofCustomerDatabyNEOGOVpersonnelexcept(a)toprovidetheServicesandpreventoraddressserviceortechnicalproblems,(b)ascompelledbyapplicablelaw, or(c)asCustomerexpresslypermitsinwriting.Customeracknowledgesandagreesthatitiscommerciallyreasonablefor NEOGOVto relyuponthesecurityprocessesandmeasuresutilizedby NEOGOV’s cloudinfrastructure providers. ii) Customerissolelyresponsibleforthedevelopment,content,operation,maintenance,anduseofCustomerData.NEOGOVwillhavenoresponsibilityorliabilityfortheaccuracyoftheCustomerDatapriortoreceiptofsuch 4 data into the Services. Customer shall be solely responsible for and shall comply with all applicable laws and regulations relating to (i) the accuracy and completeness of all information input, submitted, or uploaded to the Services, (ii) the privacy of users of the Services, including, without limitation, providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer Data relates; and (iii) the collection, use, modification, alteration, extraction, retention, copying, external storage, disclosure, transfer, disposal, and other processing of any Customer Data. NEOGOV is not responsible for lost data caused by the action or inaction of Customer or Authorized Users. Unless otherwise mutually agreed in writing, Customer shall not maintain any financial, health, payment card, or similarly sensitive data that imposes specific data security or data protection obligations within the Services.
e) Breach Notice. NEOGOV will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within its custody and control (a “Security Breach”) within 72 hours of NEOGOV’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. If applicable law or Customer’s policies require notification of its Authorized Users or others of the Security Breach, Customer shall be responsible for such notification.
f) Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services at any time during a Subscription Term, using the existing features and functionality of the Services. Customer is solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer cannot export or delete Customer Data stored on NEOGOV’s systems using the then existing features and functionality of the Services, NEOGOV will, upon Customer's written request, make the Customer Data available for export by Customer or destroy the Customer Data. If Customer requires the Customer Data to be exported in a different format than provided by NEOGOV , such additional services will be subject to a separate agreement on a time and materials basis. Except as otherwise required by applicable law, NEOGOV will have no obligation to maintain or provide any Customer Data more than ninety (90) days after the expiration or termination of this Agreement.
11. Third Party Services. The Services may permit Customer and its Authorized Users to access services or content provided by third parties through the Services (“Third Party Services”). Customer agrees that NEOGOV is not the original source and shall not be liable for any inaccuracies contained in any content provided in any of the Third Party Services. NEOGOV makes no representations, warranties or guarantees with respect to the Third Party Services or any content contained therein.
NEOGOV may discontinue access to any Third Party Services through the Services if the relevant agreement with the applicable third party no longer permits NEOGOV to provide such access. If loss of access to any Third Party Services (to which Customer has a subscription under this Agreement) occurs during a Subscription Term, NEOGOV will refund to Customer any prepaid fees for such Third Party Services covering the remainder of the Subscription Term.
12. Nondisclosure.
a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes its Customer Data. NEOGOV Confidential Information includes the NEOGOV Intellectual Property and the Services. The Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
b) Obligations. The Receiving Party will: (i) use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein.
5 c) Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
d) Equitable Relief. The parties recognize and agree there is no adequate remedy at law for breach of the provisions of the confidentiality obligations set forth in this Section 12, that such a breach would irreparably harm the Disclosing Party and the Disclosing Party is entitled to seek equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.
13. Representations, Warranties, and Disclaimers.
a) Mutual Representations. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into this Agreement; and (ii) to its knowledge, the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. b) Service Performance Warranty. NEOGOV warrants that it provides the Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY , AND NEOGOV STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD PARTY SERVICES. c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS WARRANTY SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEOGOV
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ANY ERROR WILL BE CORRECTED. d) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. NEOGOV DOES NOT AND CANNOT
CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL
ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND A VOID SUCH EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY , NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
14. Indemnification.
a) Customer Indemnity. To the extent permitted by applicable law, Customer will defend and indemnify NEOGOV from and against claim, demand, suit or proceeding made or brought against NEOGOV (a) by a third party alleging that any Customer Data infringes or misappropriates such third party's intellectual property rights, (b) in connection with Customer’s violation of any applicable laws, or (c) any claim or allegation by any third party resulting from or related to Customer’s or any of its Authorized User’s breach of Section 3 of this Agreement, in each case provided that Customer is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. b) NEOGOV Indemnity. Subject to subsections 14(b)(i) through 14(b)(iii) of this Section, if a third party makes a claim against Customer that any NEOGOV intellectual property furnished by NEOGOV and used by Customer infringes a third party’s intellectual property rights, NEOGOV will defend the Customer against the claim and indemnify the Customer from the damages and liabilities awarded by the court to the third-party claiming infringement or the settlement agreed to by NEOGOV , provided that NEOGOV is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
6 i) AlternativeResolution. IfNEOGOVbelievesoritisdeterminedthatanyoftheServicesmayhaveviolatedathirdparty’s intellectualpropertyrights,NEOGOVmaychoosetoeithermodifytheServicestobenon-infringingorobtaina licensetoallowforcontinueduse.Ifthesealternativesarenotcommerciallyreasonable,NEOGOVmayendthesubscriptionorlicensefortheServicesandrefunda pro-rataportionofanyfeescoveringthewholemonthsthatwouldhaveremained,absentsuchearlytermination,followingtheeffectivedateofsuchearlytermination. ii) No Dutyto Indemnify. NEOGOVwillnotindemnifyCustomerif CustomeralterstheServiceor ServiceSpecifications,or usesit outsidethescopeof useor if Customerusesa versionoftheServiceorServiceSpecificationswhichhasbeensuperseded,if theinfringementclaimcouldhavebeenavoidedby usinganunalteredcurrentversionoftheServicesorServiceSpecificationswhichwasprovidedtoCustomer, oriftheCustomercontinuestousetheinfringingmaterialafterthesubscriptionexpires.NEOGOVwillnotindemnifytheCustomerto the extentthatan infringementclaimis baseduponanyinformation,design,specification,instruction,software,data,ormaterialnotfurnishedbyNEOGOV. NEOGOVwillnotindemnifyCustomerforanyportionofaninfringementclaimthatisbaseduponthecombinationofServiceorServiceSpecificationswithanyproductsorservicesnotprovidedbyNEOGOV. NEOGOVwillnotindemnifyCustomerforinfringementcausedby Customer’s actionsagainstanythirdpartyif theServicesas deliveredtoCustomerandusedinaccordancewiththetermsoftheAgreementwouldnototherwiseinfringeanythird-partyintellectualpropertyrights. iii) ExclusiveRemedy. ThisSectionprovidestheexclusiveremedyforanyintellectualpropertyinfringementclaimsor damages against NEOGOV.
15. Limitations of Liability.
a) EXCLUSIONOFDAMAGES. TO THEMAXIMUMEXTENTPERMITTEDBYAPPLICABLELAW, INNOEVENTWILLEITHERPARTYBELIABLEUNDERORINCONNECTIONWITHTHISAGREEMENTORITSSUBJECTMATTERUNDERANYLEGALOREQUITABLETHEORY, INCLUDINGBREACHOFCONTRACT,TORT (INCLUDINGNEGLIGENCE),STRICTLIABILITY, ANDOTHERWISE,FORANY: (a) LOSSOFPRODUCTION,USE,BUSINESS,REVENUE,ORPROFITORDIMINUTIONINVALUE;(b)IMPAIRMENT,INABILITYTO USEORLOSS,INTERRUPTIONORDELAY OFTHESERVICES;(c)LOSS,DAMAGE,CORRUPTIONORRECOVERY OFDATA,ORBREACHOFDATA ORSYSTEMSECURITY; (d)COSTOFREPLACEMENTGOODSORSERVICES;(e)LOSSOFGOODWILL,LOSSOFBUSINESSOPPORTUNITYORPROFIT, ORLOSSOFREPUTATION;OR(f)CONSEQUENTIAL,INCIDENTAL,INDIRECT, EXEMPLARY,SPECIAL,ENHANCED,ORPUNITIVEDAMAGES,REGARDLESSOFWHETHERSUCHPERSONSWEREADVISEDOFTHEPOSSIBILITYOFSUCHLOSSESORDAMAGESORSUCHLOSSESORDAMAGESWEREOTHERWISEFORESEEABLE,ANDNOTWITHSTANDINGTHEFAILUREOFANYAGREEDOROTHERREMEDY OF ITS ESSENTIAL PURPOSE. a) CAPONMONETARY LIABILITY. EXCEPTFORDAMAGESARISINGOUTOFLIABILITYWHICHCANNOTBELAWFULLYEXCLUDEDORLIMITED,CUSTOMER’SOBLIGATIONSTOMAKEPAYMENTUNDERTHISAGREEMENT, ORLIABILITYFORINFRINGEMENTORMISAPPROPRIATIONOFNEOGOVINTELLECTUALPROPERTYRIGHTS,THETOTALLIABILITYOFEITHERPARTYFORANYANDALLCLAIMSAGAINSTTHEOTHERPARTYUNDERTHISAGREEMENT, WHETHERARISINGUNDERORRELATEDTOBREACHOFCONTRACT, TORT(INCLUDINGNEGLIGENCE),STRICTLIABILITY, ORANYOTHERLEGALOREQUITABLETHEORY, SHALLNOTEXCEEDTHEAMOUNTOFALLPAYMENTSACTUALLYRECEIVEDBYNEOGOVFROMCUSTOMERINCONNECTIONWITHTHISAGREEMENTINTHE12MONTHPERIODPRECEDINGTHEDATEOFTHEEVENTINITIALLYGIVINGRISETOSUCHLIABILITY. THEFOREGOINGLIMITATIONOFLIABILITYISCUMULATIVEWITHALLPAYMENTSFORCLAIMSOR DAMAGESIN CONNECTIONWITHTHISAGREEMENTBEINGAGGREGATEDTODETERMINESATISFACTIONOFTHELIMIT. THEEXISTENCEOFONEORMORECLAIMSWILLNOTENLARGETHELIMIT. THEPARTIESACKNOWLEDGEANDAGREETHAT THISLIMITATIONOFLIABILITYISANESSENTIALELEMENTOFTHEBASISOFTHEBARGAINBETWEENTHEPARTIESANDSHALLAPPLY NOTWITHSTANDINGTHEFAILUREOFTHEESSENTIALPURPOSEOFANYLIMITED REMEDY.
16. TextMessageCommunications. NEOGOVmayofferPersonneltheopportunitytoreceivetextmessagesregardingjobapplicationorhiringprocessreminders,applicantstatusupdates,orotherhumanresourcerelatednotices.Sincethesetextmessageservicesdependonthefunctionalityofthird-partyproviders,theremaybetechnicaldelaysonthepartofthose 7 providers. NEOGOV may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. NEOGOV shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert. NEOGOV cannot vouch for the technical capabilities of any third parties to receive such text messages. To the extent you utilize text messaging features, NEOGOV shall not be responsible for your use of such features, and you shall indemnify NEOGOV with respect to any damages resulting from your use including but not limited any violations of applicable law. NEOGOV MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY , OR IMPLIED AS TO: (i) THE A V AILABILITY OF TELECOMMUNICATION SERVICES; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.
17. Publicity. Unless otherwise provided in the applicable Order Form, NEOGOV may identify Customer as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements specified by Customer.
18. Force Majeure. Except for Customer’s payment obligations to NEOGOV , neither party shall be liable for any damages, costs, expenses or other consequences incurred by the other party or by any other person or entity for any act, circumstance, event, impediment or
occurrence beyond such party’s reasonable control, including, without limitation: (a) acts of God; (b) changes in or in the interpretation of any law, rule, regulation or ordinance; (c) strikes, lockouts or other labor problems; (d) transportation delays; (e) unavailability of
supplies or materials; (f) fire or explosion; (g) riot, pandemic, military action or usurped power; (h) actions or failures to act on the part of a governmental authority; (i) internet service interruptions or slowdowns, vandalism or cyber-attacks, or (j) any other cause beyond the reasonable control of such party.
19. Independent Contractor; No Third Party Beneficiary; Fulfillment Partners. The relationship of the parties shall be deemed to be that of
an independent contractor and nothing contained herein shall be deemed to constitute a partnership between or a joint venture by the parties hereto or constitute either party the employee or agent of the other. Customer acknowledges that nothing in
this Agreement gives Customer the right to bind or commit NEOGOV to any agreements with any third parties.
This Agreement is
not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not. NEOGOV may designate any third-party affiliate, or other agent or subcontractor (each a “Fulfillment Partner”), without notice to, or the consent of, Customer, to perform such tasks and functions to complete any Services.
20. Entire Agreement; Amendment. This Services Agreement, the Exhibits hereto and documents incorporated herein, the applicable Order Form, and Special Conditions (if any) constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior or contemporaneous oral and written statements of any kind whatsoever made by the parties with respect to such subject matter. This Agreement may not be modified or amended (and no rights
hereunder may be waived) except through a written instrument signed by the parties to be bound.
21. General. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to conflict of law rules. Any legal action or proceeding relating to this Agreement shall be instituted only in any state or federal court in Contra Costa County, California. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement will continue in full force and effect. Provisions that survive termination or expiration are those relating to, without limitation, accrued rights to payment, acknowledgements and reservations of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability, and others which by their nature are intended to survive. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given either when personally delivered, one (1) business day following delivery by recognized overnight courier
or electronic mail, or three (3) business days following deposit in the U.S. mail, registered or certified, postage prepaid, return receipt requested. All such communications shall be sent to (i) Customer at the address set forth
in the Order Form and (ii) NEOGOV at the address specified in the applicable Order Form. The waiver, express or implied, by either party of any breach of this Agreement by the other party will not waive any subsequent breach by such party of the same or a different kind. Delivery of a copy of this Agreement or an Order Form bearing an original signature by facsimile transmission, by electronic mail or by any other electronic means will have the same effect as physical delivery of the paper document bearing the original signature. Customer may not assign this Agreement without the express written approval of NEOGOV and any attempt at assignment in violation of this Section shall be null and void. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. [signature page to follow]
8 Customer
GovermentJobs.com, Inc. (D/B/A/ NEOGOV), on behalf of
itself and its subsidiaries PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC (D/B/A/ PlanIT Schedule), and Design PD,
LLC (D/B/A Agency360)
Entity Name:
Signature: Signature:
Print Name: Print Name:
Date: Date:
City of Richmond
IN WITNESS WHEREOF, this Order has been executed by such party’s duly authorized signatory as of the date set forth below, and such duly authorized signatory consents to the Agreement.
Exhibit A
Government Customer Addendum
If Customer is a Government Customer, the following Government Customer Addendum (“Government Addendum”) forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this Addendum and any other provision of the Services Agreement, the terms of this Government Addendum shall control. For purposes hereof, a “Government Customer” means a Customer which is a (a) U.S. Federal agency, (b) state government, agency, department, or
political subdivision (including a city, county or municipal corporation), or (c) instrumentality of any of the foregoing (including a municipal hospital or municipal hospital district, police or fire department, public library, park district, state college or university, Indian tribal economic development organization, or port authority).
1. Applicability. The provisions of this Addendum shall apply only if Customer is a Government Customer under the Services Agreement.
2. Termination for Non-Appropriation of Funds. If Customer is subject to federal, state or local law which makes Customer’s financial obligations under this Services Agreement contingent upon sufficient appropriation of funds by the applicable legislature (or other appropriate governmental body), and if such funds are not forthcoming or are insufficient due to failure of such appropriation, then Customer will have the right to terminate the Services Agreement at no additional cost and with no penalty by giving prior written notice documenting the lack of funding. Customer will provide at least thirty (30) days advance written notice of such termination. Customer will use reasonable efforts to ensure appropriated funds are available. If Customer terminates the Services Agreement under this Section 2, Customer agrees not to replace the Services with functionally similar products or services for a period of one year after the termination of the Services Agreement.
3. Indemnification. If Customer is prohibited by federal, state or local law from agreeing to hold harmless or indemnify third parties, Section 14(a) of the Services Agreement shall not apply to Customer, to the extent disallowed by applicable law.
4. Open Records. If the Customer is subject to federal or state public records laws, including laws styled as open records, freedom of information, or sunshine laws (“Open Records Laws”) the confidentiality requirements of Section 12 of the Services Agreement apply only to the extent permitted by Open Records Laws applicable to the Customer. This Section is not intended to be a waiver of any of the provisions of the applicable Open Records Laws, including, without limitation, the requirement for the Customer to provide notice and opportunity for NEOGOV to assert an exception to disclosure requirements in accordance with the applicable Open Records laws.
5. Cooperative Purchasing.
If Customer is a Government Customer, but is not a U.S. Federal Agency or subdivision thereof, NEOGOV agrees to allow any other state agency, department, political subdivision or instrumentality of the state but in all cases located in the same state as the Customer (“Related Agency”) to purchase Services under the terms of the Services Agreement, at the Related Agency’s discretion with the following requirements, exceptions and limitations: (a) a
ny purchases made by a Related Agency shall be transactions between the Related Agency and NEOGOV; for clarity, Customer shall not be responsible for any transactions between the Related Agency and NEOGOV , (b) the terms (including pricing) specified in the Order Forms entered into between NEOGOV and Customer shall not be incorporated into the transactions between the Related Agency and NEOGOV , and (c) the Related Agency will confirm in writing it has the authority to use the Services Agreement for the purchase and that the use of the Services Agreement for the purchase is not prohibited by law or procurement regulations or standards applicable to the Related Agency.
10 Exhibit B
PowerEngage Platform Addendum
If Customer is purchasing the PowerEngage Platform pursuant to an Order Form, the following terms are hereby incorporated into the Services Agreement (“PowerEngage Addendum”). This PowerEngage Platform Addendum forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this PowerEngage Addendum and any other provision of the Services Agreement, the terms of this PowerEngage Addendum shall control.
1. Applicability. The provisions of this PowerEngage Addendum shall apply only if Customer has purchased the PowerEngage Platform pursuant to an Order Form.
2. CAD/RMS Assumptions. The parties agree that the fees specified with respect to the PowerEngage Platform on the applicable Order Form do not include any additional fees that the Customer’s CAD or RMS vendor may charge, if any. The Services Agreement and this Exhibit B is entered into with the mutual assumption that the PowerEngage Platform will be able to make a connection to Customer’s CAD or RMS replicated or reporting database directly or will be able to read from a file produced for such a purpose.
3. CAD/RMS Provisions. The definition of Confidential Information in Section 12 of the Services Agreement shall also include any Customer CAD and/or RMS data made available to NEOGOV in connection with the provision of the PowerEngage Platform.
4. SOW. NEOGOV agrees to provide the training, configuration and support services with respect to the PowerEngage Platform, and Customer acknowledges that its cooperation is required for efficient and timely implementation of the PowerEngage Platform, in accordance with the following:
PowerEngage Software
NEOGOV will be used to survey citizens that have interacted with Customer, send messages to citizens or other stakeholders and gather and report on data. Customer will be able to configure the surveys and rules based on data received from the Computer Aided Dispatch System. The results of the surveys will be stored within PowerEngage and available for display in a Feedback Board and within the analytics component called Measure. Other rules and messages can be built to be triggered to send on certain events as driven by the rules engine.
NEOGOV and Customer Responsibilities
The bullet points below outline when NEOGOV , Customer, or both NEOGOV and Customer have responsibility with respect to a particular deliverable.
1. NEOGOV will configure a tenant and telephone number group for the Customer
2. NEOGOV will schedule a 90-minute kickoff call with the Customer to review the objectives, timeline and mutual deliverables ● Configure Customer administrator account - NEOGOV
● Walk Customer through the survey builder - NEOGOV
● Walk Customer through the rules builder - NEOGOV
● Walk Customer through the Feedback Board- NEOGOV
● Walk Customer through Activity /Survey tools- NEOGOV
● Walk Customer through the CueHit CAD Data Agent and what is needed for the connection to CAD - NEOGOV
3. Customer will gather information needed for Surveys, Rules, Tasks and CAD/RMS Data – Customer
4. NEOGOV will coordinate a CAD/RMS Connection Workshop with Customer ● Configure PowerEngage CAD/RMS agent- NEOGOV and Customer ● Connect to Customer CAD/RMS Data – Customer
● Test data – NEOGOV and Customer
5. NEOGOV will coordinate a 2-hour Survey Workshop with Customer ● Consult on the questions to ask in a satisfaction survey (maximum of 3 to 5 questions) = NEOGOV and Customer ● Configure the questions in the survey tool = NEOGOV and Customer 11 ● Configure the acceptable responses in the survey tool = NEOGOV and Customer ● Configure additional criteria (Follow Up question only) = NEOGOV and Customer ● Send sample survey to Customer on text message = NEOGOV and Customer ● Review in Feedback Board and Activity Screens= NEOGOV and Customer
6. NEOGOV will coordinate a 2- 4 hour Rules Workshop with Customer to jointly ● Consult on the rules for surveys and automatic text notifications = NEOGOV and Customer ● Configure the rules and texts = NEOGOV and Customer
● Send example encounters to test rules = NEOGOV and Customer ● Review in Activity= NEOGOV and Customer
7. NEOGOV will coordinate a 2 Hour Task Creation and Notification Workshop with Customer to jointly:
● Configure Tasks and Task Assignments
● Identify Personnel information needed for notifications and digest emails ● Import Personnel information for receiving messages and emails from Customer provided .xls or .csv
8. NEOGOV will schedule a 2-hour Analytics Workshop with the Customer to review the ideas for the Dashboards to reflect the results of the surveys.
● NEOGOV will review standard visualizations and data in the dashboard ● NEOGOV will request from the Customer, input on the data and visualization to be presented in the Measure Tool ● Once agreed, a maximum of 1 custom visualizations will be created by NEOGOV and deployed to the Customer’s environment
9. NEOGOV will train the Customer Administrators on the use of the PowerEngage configuration tools, Measure tools and Activity logs.
Support Services
Telephone Assistance.
Customer will be given the telephone
number for a support line and will be entitled to contact the support line during normal operating hours, (between 7:30am and 5:30pm Central Time) on regular business days, excluding NEOGOV holidays, to consult with NEOGOV technical support staff concerning problem resolution, bug reporting, documentation clarification, and general technical guidance. Assistance may include remote connectivity, modem, or electronic bulletin board.
Software Problem Reporting. Customer may submit requests to NEOGOV identifying potential problems in the PowerEngage software. Requests should be in writing and directed to NEOGOV by e-mail, or through the NEOGOV support website.
NEOGOV retains the right to determine in the final disposition of all requests and will inform Customer of the disposition of each request. If NEOGOV acts upon a request, it will do so by providing a bug fix.
Scheduled Maintenance.
Software may be unavailable
periodically for system maintenance. Regular system maintenance includes installation of the software updates, operating system updates/patches and updates to other third-party applications as needed. Customers are notified of maintenance periods via an email message or via a banner on the main page of the PowerEngage Platform.
Exclusions from Technical Support Services:
NEOGOV shall have no support obligations with respect to any third-party hardware or software product. 12 Exhibit CHRIS Addendum
ThefollowingtermsgoverntheuseoftheHRISServices(the“HRISAddendum”)astheyrelatetospecificHRISServicesorderedbyCustomerinanOrderForm.“HRISServices”referstothefollowingSaaSApplicationsoranyAdd-Ons(definedbelow)orProfessionalServicesrelatedtosuchSaaSApplications:NEOGOVCoreHR,NEOGOVPayroll,andNEOGOVTimeandAttendance.IfanyprovisionwithintheHRISAddendumdirectlyconflictswithanyotherprovisionoftheServicesAgreement, the terms of this Addendum shall control.
Implementation;Add-Ons;andConfigurationLimitation.Implementationof HRISServicesas detailedin thestandardstatementofwork(“SOW”)andthemutuallyagreed-uponscopedocument(“Scope”)willproceedinaccordancewiththeestimatedimplementationscheduleprovidedbyNEOGOVandasfurtherdetailedintheSOWandScope.ImplementationservicesnotincludedintheSOWandScopemaybesubjecttoadditionalfees.Customeracknowledgesthatthetimelinefortheimplementationscheduleisanestimateonlyanddependentona numberofvariables,includingbutnotlimitedtoCustomer’sresponsivenessto NEOGOV’s requestsduringthe implementationprocessandCustomer’s obligationto fill outthe“ImplementationWorkbook”tofacilitatetheimplementationprocess.IntheeventthatCustomerdoesnotorderthefullsuiteofHRISservicesoffered,NEOGOVmayberequiredtogeneratecustomfeedsforCustomerforanadditionalfee. Duringimplementation,Customermayelectoptionaladd-onservicesthatsupplementtheSaaSApplications(the“Add-Ons”).Aftercompletionofimplementation,anysubsequentchangesCustomerrequeststotheconfigurationoftheHRISServiceswillbeatcost.
NEOGOV will havenoresponsibilityfornoranydutytoreview, verify, correctorotherwise perform any investigation astothe completeness, accuracy or sufficiency of anydataor informationinputintotheHRISsystem by or on behalfof theCustomer. Customer issolelyresponsibleforensuringthatalldataenteredintoandstoredintheHRISsystemisaccurateandcomplete, and for correcting any errors or discrepancies in such data.
CORE HR and Benefits – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Core HR, and HRIS Services involving benefitsadministration (the “Benefits Module”):
1. BenefitsModuleRepresentative. Customershalldesignateoneor morepersonswhoshallserveas NEOGOV’sdesignatedcontactfortheBenefitsModule(the“BenefitsRepresentative”).CustomerrepresentsandwarrantstoNEOGOVthatthe BenefitsRepresentativehas,andshallat all timeshave,therequisiteauthorityto transmitinformation,directionsandinstructionsonbehalfofCustomer, each“planadministrator”definedinSection3(16)(A)oftheERISAandSection414(g)oftheCodeand,ifapplicable,each“fiduciary”(asdefinedinSection3(21)ofERISA)ofeachseparateemployeebenefitplancoveredby the BenefitsModule(each,a “BenefitPlan”).TheBenefitsRepresentativealsoshallbedeemedtohaveauthority toissue,execute,grant,orprovideanyapprovals,requests,notices,orothercommunicationsrequiredorpermittedundertheServicesAgreementorrequestedbyNEOGOVinconnection with the Benefits Module.
2. Use of the Benefits Module.
a) HRUsers. Customershallauthorizeanadministratortoinputinformationandaccesscertaininformationrelatingto(i)thebenefitsofferedbyCustomerand(ii)Customer’s employees/planparticipantsandtheirbenefitoptionsandelectionsaswellasviewcertainpersonalandcompanyinformationregardingcompanyemployees.TheBenefitsModulepermitsCustomer’semployees/planparticipantstomakevariousbenefitselectionsandtoviewandupdatecertainpersonalandcompanyinformation.ItisCustomer’s responsibilitytosubmitinstructionsandinformationrelatingtotheBenefitsModuleandtoverifytheaccuracyandcompletenessofallsuchinstructionsandinformationsubmitted by Customer, employees, and plan participants. b) NEOGOVNotFiduciaryAdvisor. Customeracknowledgesandagreesthat,in makingtheBenefitsModuleavailable,NEOGOVisnotactingasaninvestmentadvisor,broker-dealer, insuranceagent,taxadvisor,attorneyorintermediaryor a financialor benefitplanner. NEOGOVis notprovidinganybenefits,taxadvice,or anyinformationrelatedthereto;Customeris responsibleformakingavailableallbenefitsandinformationrelatedthereto referenced or included in the Benefits Module. 13 c) NEOGOV’s HealthCareClearinghouseStatus. CustomerexpresslyacknowledgesandagreesthatNEOGOVisnota “HealthCareClearinghouse”,a “CoveredEntity”ora “BusinessAssociate”withinthemeaningofHIPAA,andCustomershallnotrequestorotherwiserequireNEOGOVtoactassuch.TotheextentthatNEOGOVisrequiredtoenterintoanyadditionalagreementasa resultofCustomer’s useoftheBenefitsmodule,Customershallberesponsible for any liability incurred by NEOGOV thereunder.
3. AdditionalTerminationRights. NEOGOVmayterminateCoreHR,theBenefitsModule,orthisServicesAgreementimmediatelyuponwrittennoticetotheCustomerupon(a)thefailureofCustomertomaintainitsBenefitPlan(s)incompliancewithERISAorotherapplicablelawsorregulationsor(b)NEOGOV’sdeterminationthattheexerciseofanyof therightsgrantedhereunderor thecontinuedperformanceby NEOGOVofitsobligationsunderthisServicesAgreementwouldcauseNEOGOVto violateanyapplicableinternational,federal,stateor locallaw(s)and/orregulation(s).
4. ERISA. ThetermsofthisSectiononlyshallapplytotheextentCustomerusesservicesgoverned,inwholeorinpart,bythe Employee Retirement Income Security Act of 1974, as amended (“ERISA”) a) NEOGOV’s Non-FiduciaryStatus. CustomerexpresslyacknowledgesandagreesthatNEOGOVis notan“Administrator”,“PlanSponsor,”ora “PlanAdministrator”asdefinedinSection3(16)(A)ofERISA,andSection414(g)oftheInternalRevenueCodeof1986,asamended(the“Code”),respectively, norisNEOGOVa“fiduciary”withinthemeaningofERISASection3(21),andCustomershallnotrequestorotherwiserequireNEOGOVtoactas such.NEOGOVshallnotexerciseanydiscretionaryauthorityorcontrolrespectingmanagementofanyofCustomer’s benefitorwelfareplans(“Plan”or“Plans”)ormanagementordispositionofanyofCustomer’sbenefitorwelfarePlanassets.NEOGOVshallnotrenderinvestmentadvicefora feeorothercompensation,directorindirect,withrespecttoanymoniesorotherpropertyofanyPlan,nordoesNEOGOVhaveanyauthorityorresponsibilitytodoso.NEOGOVhasnodiscretionaryauthorityordiscretionaryresponsibilityintheadministrationof the Plan(s). b) UseofNEOGOV’SName. CustomerorthePlanAdministratormustobtainthepriorwrittenconsentofNEOGOVtoinsertanyreferencestoNEOGOVoritsaffiliates,ortoNEOGOVServices,withrespecttoanycommunicationordocumentpertainingtoa PlanpreparedbyCustomer, oronbehalfofCustomer(otherthandocumentspreparedbyNEOGOV),unlessthereferenceonlyidentifiesNEOGOVasaserviceproviderorthereferenceisrequiredinafilingordocumentrequiredbyERISAoranyotherapplicablelaw.Withoutlimitingtheforegoing,innoeventmayCustomeror the PlanAdministratoridentifyor referto NEOGOVas “administrator”,“planadministrator”,“third-party administrator”, “plan sponsor”, “fiduciary”, “plan fiduciary” or similar title.
5. DirecttoCarrierServices. Customermayelectdirecttoinsurancecarrierservices(eacha“CarrierLink”)atitsoption,eachforanadditionalcost.ReconfigurationofexistingCarrierLinks,establishingnewCarrierLinks,andadditionalelectionsareavailableforanadditionalfeeandmaybecompletedbyNEOGOVat NEOGOV’s thencurrentrates.CustomermayaccessandusetheNEOGOVHRISServicesto electronicallytransmitemployeedata,includingemployeebenefitsenrollmentdata,toCustomer’s carriersorotherthirdpartiesauthorizedbyCustomer. NEOGOV’sabilitytotransmitdatais subjecttotheprovisionofa currentfunctionalinterfacebetweenHRISServicesandthecarriers’systems.NEOGOVwillnotbeobligatedtotransmitCustomer’s datatocarriersifatanytimeCustomer’scarriersfailtoprovidetheproperinterfaceassolelydeterminedbyNEOGOV.IfCustomerrequiresdevelopmentofanyspecialorcustomizedinterfacestotransmitsuchdata,allworkperformedbyNEOGOVtocreatesuchinterfaceswillbeatNEOGOV’s thencurrentfeesforsuchservices.NEOGOVmakesnowarrantythateachcarrier’sspecificationswillconformwithNEOGOV’s currentfunctionalinterfaces.Intheeventa carrierprovidesformatsorspecificationsnotsupportedbytheNEOGOVHRISServices,CustomerwillbesolelyresponsiblefortransmittingthedatatosuchcarrierusinganalternativesystemtobedeterminedsolelybyCustomer. CustomershallberesponsibleforpromptlyreviewingallrecordsoftransmissionstocarriersandotherreportspreparedbyNEOGOVforvalidityandaccuracyaccordingtoCustomer’s records, and Customer will notify NEOGOV of any discrepancies promptly after receipt thereof.
Payroll Services – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Payroll Services module:
1. PayrollProcessingandTax Filing. NEOGOVwilldeliver(i) payrolladministrativeservicestoCustomerthroughNEOGOV’s payrollsoftwareas a service(the“PayrollModule”),(ii) at Customer’s election,directdepositadministrationtothoseemployeeselectingsuchserviceviaACHprocessing(collectivelyreferredtoasthe“PayrollServices”),remitpayrolltaxesonCustomer’s behalftothosefederal,state,andlocaltaxingjurisdictionsdesignatedby 14 Customer, andfilerelatedtaxreturns(suchremittingof payrolltaxesandfilingofrelatedtaxreturns,the“TaxServices”).AtNEOGOV’s thencurrentfees,NEOGOVmayalsoprocesscalendaryear-endW-2formsforCustomer’semployeesandForms1099-MISC.NEOGOVwill, andCustomerherebyauthorizesNEOGOVandFulfillmentPartnersto,initiatedebitsorreversewiretransferspriortoeachpaydateforCustomer’spayroll(“Paydate”)andcreditthebankaccountsofCustomer’s employeesandotherstobepaidbyCustomerbydirectdepositpaymentonPaydate(a“Payee”),allincompliancewiththeoperatingrulesoftheNationalAutomatedClearingHouseAssociationandthetermsandconditionshereof.Forpurposeofclarity, thepartiesunderstandandagreethatNEOGOVdoesnotprintand/or send paychecks for or on behalf of Customer.
2. Documentation and Required Information.
a) AuthorizationForms;ProofofName. Customerwillberequiredtocompleteandsubmitthefollowingdocumentsin orderto usethepayrollprocessingcomponentsof PayrollModule:(i) powerof attorneyformsforeachjurisdictioninwhichCustomerwillusetheHRISServices(the“POA”),(ii)AuthorizationtoDebit/CreditBankAccount(s)/ObtainBankAccountInformation(the“AuthorizationForm”),(iii)anIRSproofoflegalname/FEINand (iv) any authorization form for Fulfillment Partner authorizing debiting and crediting Customer’s bank account. b) ProofofExistence. CustomerwillprovideNEOGOV, andauthorizeNEOGOVtoprovidetoFulfillmentPartner,Customer’s (i)legalname,and“doingbusinessas”nameifapplicable,(ii)physicalstreetaddress(notaPOBoxorPMB),(iii)phonenumber, (iv)PrimaryBusinessActivity(NatureofBusiness),(v)DunsNumber(ifoneexists),(vi)TaxIDNumber, (vii)estimatedtransactioncountanddollarvolume,(viii)numberofemployees,and(ix)supportingevidencevia(A)eithercertifiedArticlesofIncorporation,IRSEINLetter, unexpiredgovernmentissuedbusinesslicense,trustinstrumentorothergovernment-issuedevidenceshowinglegalexistence,and(B)eitheravoided business check, copy of utility bill, other evidence of legal name, physical address, DBA Name, or Tax ID. c) PermittedDisclosureAuthorization. CustomerherebyauthorizesNEOGOVto (i) provideCustomer’s datatoFulfillmentPartnerforthepurposesofperformingthePayrollandTaxServices,and(ii)takesuchactionasisnecessary to perform the Payroll and Tax Services. d) TimeandAttendanceInformation. Priorto commencementofTimeandAttendanceServices,Customershallprovideto NEOGOVall necessaryinformationandguidancerelatingtoitstimeandattendancepoliciesandguidelinesandcoordinatewithNEOGOVtoestablishstandardsforNEOGOVinitsexecutionoftheTimeandAttendanceServices.Customeragreesto promptlycomplywithNEOGOV’s requestfor suchadditionaldocumentationandunderstandsthatPayrollorTaxServicesmaybeimpairedordelayedifCustomerdoesnotcomply with such request.
3. CustomerObligations,Representations,andWarranties. CustomeracknowledgesthatNEOGOV'sobligationtoperformtheHRISServicesis subjectto Customer’s obligations,representations,andwarranties.Customerrepresentsandwarrants the following:
a) ProcessingAuthorization. CustomerauthorizesNEOGOVto processpayrollentrieson behalfof Customer.CustomeracknowledgesthatNEOGOVisactingsolelyinthecapacityofdataprocessingagentandisnotasourceoffundsforCustomer. CustomershallbeliableforeachpayrollrelatedtransactioninitiatedbyNEOGOVonbehalfofCustomer, whetherbyelectronicentryorwiretransfer. NEOGOV, oritsFulfillmentPartners,electronicallytransmitemployeedata,includingemployeepayrolldata,todesignatedthirdparties,andCustomerauthorizesNEOGOVanditsFulfillmentPartners,toprovidesuchtransmissiononCustomer’s behalf.CustomeragreesthatNEOGOVmaintainsspecificFulfillmentPartner(s)forNEOGOVPayrollandTaxServicesfulfillmentduringthetermof andin accordancewiththisServicesAgreementandthatCustomershallnot,directlyorindirectly,supplement,substitute,orotherwisemodifytheprovisionofsuchPayrollandTaxServiceswithoutterminatingthis Services Agreement.b) InformationAccuracy;Reliance;ChangeNotice. Customershallinput,maintain,andverifytheaccuracyofanyandall information,includingpayrollandtaxinformation,andCustomershallcontinuallyensurethatsuchinformationiskeptcomplete,accurate,deliveredontime,anduptodateatalltimes.CustomeracknowledgesthatNEOGOVandNEOGOVFulfillmentPartnerswillrelyontheaccuracyofthisinformationasitperformsitsrequestedfunctions.NEOGOVshallnotberesponsibleforanydelaysorinaccuraciesinCustomer’s deliveryofdatato NEOGOV. CustomerwillnotifyNEOGOVimmediatelyofanychangeintheprocessinginformation,includingtheAuthorizationForm.CustomerwillalsoobtainavoluntarywrittenauthorizationfromanyPayeepriortotheinitiationofthefirstcredittotheaccountofsuchPayeeandshallprovideupondemanda copyofsuchwritten authorization to NEOGOV. 15 c) ProcessingDeadlines. UnlessotherwiseagreedtobytheParties,Customerwill:(a)completeandexecuteallrequireddocumentationsothatNEOGOVorFulfillmentPartnermaywithdrawfundsfromCustomer’saccounttoprocessdirectdepositpayrolls,(b)inputorreportallrelevantpayrolldataforACHtransmissionstoNEOGOVnolaterthan2:00p.m.PacificStandardTime(PST)three(3)bankingdayspriortoeachPaydate,(c)inputorreportallotherrelevantpayrolldatatoNEOGOVnolaterthan2:00p.m.PacificStandardTime(PST)twobankingdayspriortoeachPaydate,(d)haveavailableinCustomer’sbankaccountgood,collectablefundsinasufficientamounttocoverfundingdisbursements,checks,directdeposits,taxpayments,orrecurringpaymentstothirdpartiesnolaterthantheopeningofbusiness(i)twobankingdayspriortoeachPaydatefordebitsbyelectronicentry,and(ii)twobankingdayspriortoeachPaydateforfundingbywiretransfer,and(e)compareallreportsoncreditsordebitsinitiatedbyCustomertoNEOGOV’s recordsandpromptlynotifyNEOGOVofanydiscrepancies.IntheeventCustomerdoesnotmeetthedeadlinesspecifiedherein,NEOGOVshallmakereasonableeffortstocompleteprocessingpriortothePaydate;however, NEOGOVmakesnorepresentationorwarrantythatpayrollwillprocessbythePaydatewhereCustomerfailstoprovideallrequireddocumentationbythedeadline.AdditionalFeesmayapply for expedited processing. d) CustomerReview. Withinseven(7)businessdaysafterreceiptfromNEOGOV,CustomerwillpromptlyconductadetailedreviewofallpayrollandtaxregistersproducedbyNEOGOVorFulfillmentPartnersforaccuracy,validityandconformitywithCustomer’s records.CustomerwillpromptlynotifyNEOGOVofanyerrororomissiondiscoveredby Customerin anypayrollregisters,disbursementrecords,payrollortaxreportsanddocumentsproducedbyNEOGOVorFulfillmentPartners,oranydiscrepancybetweentheinformationprovidedbyNEOGOVor FulfillmentPartners,andCustomer’s records.Customerwillnotrelyon anyrecord,reportor documentcontaininganydiscoverederror, omissionor discrepancyuntilsucherror, omissionordiscrepancy, hasbeencorrected.CustomerwillberesponsibleforanyconsequencesresultingfrominstructionsCustomermaygivetoNEOGOVorFulfillmentPartnerswithregardtoHRISServicesoranypayrollregisters,disbursementrecords,reports and documents prepared by NEOGOV based on information provided by Customer. e) DocumentRetention. CustomerwillretaincopiesofallinformationenteredintoorgeneratedbytheHRISServicesand Customershallbesolelyresponsibleformaintainingsuchdata,andalltaxrecords,inaccordancewithanylegal obligations. f) SpecialProcessing. Customerunderstandsandacknowledgesthatadministeringprocessingdatesbeyondstandardpayrolldates,andcorrecting,amending,orcancellingpayrollentriesormistakenreversals(collectively“SpecialProcessing”),arecomplicated,highlymanual,andmayresultin additionalexpenses,taxconsequences,andpenalties. Therefore, Special Processing may be subject to additional NEOGOV Fees. g) RecoveryCooperation. CustomeragreestoundertakereasonableeffortstocooperatewithNEOGOVandanyotherpartiesinvolvedinprocessinganytransactionshereundertorecoverfundscreditedtoanyemployeeasaresultofanerrormadebyCustomer, NEOGOV,orFulfillmentPartners,oranyotherlossrecoveryeffortsandinconnectionwithanyactionsthattherelevantpartyNEOGOVmaybeobligatedtodefendorelectstopursueagainstanythird-party. h) CompliancewithLaws. Customeracknowledgesthat,inordertoputintoeffectthePayrollServiceswhichincludeACHtransactions,CustomerwillbetheOriginatoroftheACHtransactionsandwillfollowandbeboundbytherulesforACHOriginatorsasadoptedfromtimetotimebytheNACHA.Customeragreesthatithasassumedtheresponsibilities ofanOriginatorundertheACHRulesandacknowledgesthatentriesmaynotbeinitiatedinviolationofthelawsoftheUnitedStates.Customeragreestobecompliantwithlaws.Customerwillcomplywithalllawsincluding,butnotlimitedto,theU.S.PatriotAct,theUnlawfulInternetGamblingEnforcementAct,theBank Secrecy Act, and Anti Money Laundering laws.
4. EffectofFailedFunds. IfCustomerfailstopaythetaxes,directdeposits,employeepaymentsorothercharges,includingfees,thenCustomeragreestopayNEOGOVforallcostsofcollection,includingreasonableattorneyfees,whichmaybeassociatedwithcollectionoftheamountsdue.NEOGOValsomay, atitssoleoption,terminatethisServicesAgreementandwithholdorsuspendanyworkinprogress.ThisisinadditiontoanyotherrightsNEOGOVmayhaveunderthiscontractorunderlaw. NEOGOValsoreservestherightstoreverseemployeetransactionsand/ortaxpaymentsforwhich funds have not been received from Customer.5. RejectionofEntries. NEOGOVshallrejectanyfileorentrythatdoesnotcomplywiththerequirementsofthisServicesAgreement,theNACHARules,orusesanimproperSECCode,orifNEOGOVsuspectsfraudorillegalorimproperactivity. NEOGOV shall have no liability. 16 6. ResolutionofErrorExceptions. ForthepurposesofthisSection,theterm“errorexception(s)”shallmeananydatarequirementswithintheHRISServicesthat,basedonCustomer’s configuration,havebeenassigneda severityleveldesignationof“error”;suchdesignationshallcreatea requirementforanoperationaltasktobecompletedbyCustomerinordertoproceedwithCustomer’s processing,includingprocessingofCustomerpayrollforthedesignatedperiod.FailuretoresolveanerrorexceptionwillpreventCustomer’s payrollfrombeingprocessedasscheduled.NEOGOVisnot obligated to clear any such error on behalf of Customer.
7. NEOGOVErrorsandOmissionsWarranty. NEOGOVwarrantsitwillusecommerciallyreasonableeffortstoproperlytransmittheappropriatereports,data,orfilingsbasedontheinformationprovidedinCustomer’s HRISServices.Inaddition,NEOGOVwillusecommerciallyreasonableeffortstorectifyanyCustomerreport,data,orfilingerror,includinganydeposit, correctedorreversaldebitorcreditentry, forwhichNEOGOVissolelyresponsible;providedthat,ineachcaseCustomeradvisesNEOGOVnolaterthanten(10)businessdaysaftertheoccurrenceofsucherrorsoromissions.Thisis Customer’s soleremedyintheeventofa breachoftheforegoingwarranty. Notwithstandingtheforegoing,Customerwillbesolelyresponsibleforpaymentofalltaxpenalties,interest,andadditionalNEOGOVfeesif:(i)thepenaltyistheresultofincorrect,inaccurate,orincompleteinformationCustomerprovidestoNEOGOV, (ii)CustomerhasinsufficientfundsinCustomer’s designatedbankaccounttoprocessHRISServices,or(iii)apartyotherthan NEOGOV, or a NEOGOV Fulfillment Partner, fails to perform services in a timely manner.
8. AdditionalLiabilityandWarrantyLimitations. NEOGOV,ITSPROVIDERS,ANDFULFILLMENTPARTNERS,ANDTHEOFFICERS,DIRECTORS,EMPLOYEES,ANDSUPPLIERSOFEACHWILLNOTBELIABLEUNDERANYCIRCUMSTANCESORUNDERANYTHEORY OFRECOVERY (WHETHERINCONTRACTORTORT OROTHERWISE)FOR(i)ANYFEES,COSTS,CHARGES,ORANYDAMAGESCAUSEDBYLOSTSHIPMENTORTRANSMISSIONOFCHECKSORANYFORMOFDISBURSEMENTINCLUDING,BUTNOTLIMITEDTO,STOP PAYMENTFEES,REPRINTINGOR RETRANSMISSIONCOSTS,SHIPPINGCHARGES,ORCONSEQUENTIALEXPENSESANDDAMAGE,(ii)ANYCHARGES,FEES,OREXPENSESINCURREDBYCUSTOMER,CUSTOMER’SAGENTS,OR EMPLOYEESWHICHAREDUETO LATE PAYCHECKS,REGARDLESSOFWHETHERSUCHPAYCHECKSARETOBEPREPAREDANDDELIVEREDBYNEOGOV,FULFILLMENTPARTNERS,ORBYCUSTOMER,(iii)NON ‐ PERFORMANCEOFHRISSERVICESWHICHHAVEBEENSUSPENDEDDUETO FAILUREORDELAY INPAYMENTOFFEESOWEDUNDERTHISSERVICESAGREEMENT, AND(IV) FORANYDAMAGESTO CUSTOMERARISINGFROMOR INCONNECTIONWITHADECISIONBYNEOGOVTOSUBMITFILESFORPROCESSINGAFTERCUSTOMERHAS FAILED TO CLEAR OUTSTANDING ERROR EXCEPTIONS WITHIN THE SPECIFIED DEADLINE.
9. Additional Termination Rights.
a) TerminationforDefault. Customer’s breachoftheNACHARules,violationofanyapplicablefederalorstateregulation,orfailuretomaintainaccountfundingasrequiredbythisServicesAgreement(andasaresultanydebittoCustomer’s accountisreturned),shalleachconstituteadefault.Upondefault,NEOGOVmaysuspendtheHRISServicesorterminatethisServicesAgreementina mannerthatpermitsNEOGOVtocomplywiththeNACHARules.Terminationis effectiveimmediatelyuponwrittennoticeofsuchterminationtoCustomer. TherighttosuspendtheHRISServicesand/orterminatethisServicesAgreementisinadditiontoanyotherrightsandremediesprovided under this Services Agreement or otherwise under law. b) EffectofTermination. NoterminationofthisServicesAgreementshallreleaseCustomerfromanyobligationtopayNEOGOVanyamountthathasaccruedor becomespayableat or priorto thedateof termination.NosuspensionofHRISServicesshallreleaseCustomerfromanyobligationtopayNEOGOVanyamountsdueunderthisServicesAgreement.CustomershallnotbeentitledtoanyrefundofanyamountspaidtoNEOGOVasaresultofa terminationbasedonCustomer’s default.NotwithstandingtheterminationofthisServicesAgreement,thepartiesshallcontinuetocomplywiththeNACHARuleswithrespecttotransmissionspursuanttothisServicesAgreement. 17 Exhibit DIntegration Terms Addendum
NEOGOVoffersintegrationsandplatformAPIsforintegrationstothirdpartysystems(“IntegrationServices”).CustomermayuseonlythoseIntegrationServicespurchasedorsubscribedtoaslistedwithintheNEOGOVOrderForm.Thefollowingterms(the“IntegrationTermsAddendum”)shallapplytotheextentthatCustomerutilizesasystemintegrationbetweenthe Servicesand either: (a) an affiliated integratedservice,includingthose found athttps://api.neogov.com/connect/marketplace.htmland/orhttps://apidocs.powerdms.com(“AffiliatedAPI”)ortotheextentthatCustomerutilizesa systemintegrationbetweentheServicesandan unaffiliatedthird-partyservice(“CustomerApplication”)integratedusingNEOGOV’s openAPI(“OpenAPI”).IntegrationServicesarenotavailableforHRISServices and this Exhibit D shall not apply to HRIS Services.
1. ProvisionofIntegrations. SubjecttoandconditionedoncompliancewithalltermsandconditionssetforthinthisAgreement,NEOGOVhereby grants Customera limited,revocable,non-exclusive,non-transferable,non-sublicensablelicenseduringtheapplicableTermtouseand/oraccesstheAffiliatedAPIasdescribedinthisAgreement,ortheOpenAPIforcommunicationbetweenCustomer’shumanresourcerelatedthirdapplication(s)thatwillinteroperatewithNEOGOVServices(collectivelytheseusesshallbereferredtoasthe“API”or“Integration”).CustomeracknowledgestherearenoimpliedlicensesgrantedunderthisAgreement.NEOGOVreservesallrightsthatarenotexpresslygranted.CustomermaynotusetheAPIforanyotherpurposewithoutourpriorwrittenconsent.CustomermaynotsharetheAPIwithanythirdparty, mustkeeptheAPIandalllog-ininformationsecure,andmustuse the API key as Customer sole means of accessing the API.
2. IntegrationIntellectualProperty. Allright,title,andinterestintheAPIandanyandallinformation,data,documents,materials,inventions,technologies,know-how, descriptions,requirements,plans,reports,works,intellectualproperty,software,hardware,systems,methods,processes,andinventions,customizations,enhancements,improvementsandothermodificationsbasedonorderivedfromtheAPIareandwillremain,asappropriate,withNEOGOV.Allright,title,andinterestinandtothethird-partymaterials,includingallintellectualpropertyrightstherein,areandwillremainwiththeirrespectivethird-partyrightsholderssubjecttothetermsandconditionsoftheapplicablethird-partylicenseagreements.Customerhasnorightorlicensewithrespecttoanythird-partymaterialsexceptasexpresslylicensed under such third-party license agreements.
3. IntegrationTermsofUse. ExceptasexpresslyauthorizedunderthisAgreement,youmaynotremoveanyproprietarynoticesfromtheAPI;usetheAPIinanymannerorforanypurposethatinfringes,misappropriates,orotherwiseviolatesanyintellectualpropertyrightorotherrightofanyperson,orthatviolatesanyapplicablelaw;combineorintegratetheAPIwithanysoftware,technology, services,ormaterialsnotauthorizedbyNEOGOV;designorpermitCustomerApplication(s)to disable,override,or otherwiseinterferewith any NEOGOV-implementedcommunicationsto endusers,consentscreens,usersettings,alerts,warning,orthelike;usetheAPIinanyofCustomerApplication(s)toreplicateorattempttoreplacetheuserexperienceoftheServices;orattempttocloakorconceal Customer identity or the identity of Customer Application(s) when requesting authorization to use the API.
4. CustomerIntegrationResponsibilities. Customer, Customerdevelopedweborothersoftwareservicesorapplications,andCustomerthird-partyvendorsthatintegratewiththeAPI(collectivelythe“CustomerApplications”),shallcomplywithall termsandconditionsof thisAgreement,all applicablelaws,rules,andregulations,andallguidelines,standards,and requirementsthat may be postedon https://api.neogov.com/connect/index.htmland/orhttps://apidocs.powerdms.comfromtimetotime.Inaddition,CustomerwillnotusetheAPIinconnectionwithortopromoteanyproducts,services,ormaterialsthatconstitute,promote,orareusedprimarilyforthepurposeofdealingin spyware,adware,or othermaliciousprogramsor code,counterfeitgoods,itemssubjectto U.S.embargo,unsolicitedmassdistributionof email(“spam”), multi-levelmarketingproposals,hatematerials,hacking,surveillance,interception,or descramblingequipment,libelous,defamatory, obscene,pornographic,abusive,orotherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities.
5. Cooperation. Ifapplicable,Customershalltimelyprovidesuchcooperation,assistance,andinformationasNEOGOVreasonablyrequeststoenabletheAPI.NEOGOVisnotresponsibleorliableforanylatedeliveryordelayorfailureofperformancecausedinwholeorinpartbyCustomer’sdelayinperforming,orfailuretoperform,anyofitsobligationsunderthisAgreement.NEOGOVwillprovideCustomermaintenanceandsupportservicesforAPIissuesarisingfromtheinformationtechnologydesigned,developed,andunderthencurrentcontrolofNEOGOV.NEOGOVshallhavenoobligationtoprovidemaintenanceorsupportforissuesarisingfromtheinactionoractionofCustomerorthird parties of which are outside NEOGOV control.
6. ProvisionofOpenAPI. Intheeventlicensefeesorotherpaymentsarenotdueinexchangefortherighttouseand 18 access the Open API, you acknowledge and agree that this arrangement is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein. Notwithstanding the foregoing, NEOGOV reserves the right to change for access with effect from the start of each Renewal Term by giving Customer at least ninety (90) day notice prior to commencement of a Renewal Term.
7. API Key. In order to use and access the Open API, you must obtain an Open API key through the registration process.
Customer agrees to monitor Customer Applications for any activity that violates applicable laws, rules and regulation, or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior. This Agreement does not entitle Customer to any support for the Open API. You acknowledge that NEOGOV may update or modify the Open API from time to time and at our sole discretion and may require you to obtain and use the most recent version(s). You are required to make any such changes to Customer Applications that are required for integration as a result of such Update at Customer sole cost and expense. Updates may adversely affect how Customer Applications communicate with the Services.
8. Efficient Processing. You must use efficient programming, which will not cause an overwhelming number of requests to be made in too short a period of time, as-determined solely by NEOGOV . If this occurs, NEOGOV reserves the right to throttle your API connections, or suspend or terminate your access to the Open API. NEOGOV shall use reasonable efforts to provide Customer notice and reasonable time to cure prior to taking such actions.
9. Open API Limitations. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT
WILL NEOGOV BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY , OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, LOST
PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF
BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE OPEN API; OR ANY DAMAGES, IN THE
AGGREGATE, IN EXCESS OF FIFTY DOLLARS, EVEN IF NEOGOV HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR NEOGOV WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM
YOU MAY HA VE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
10. Open API Termination. Notwithstanding the additional Termination rights herein, NEOGOV may immediately terminate or suspend Customer access to Open APIs in our sole discretion at any time and for any reason, with or without notice or cause. In addition, your Open API subscription will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. 19 For the Contract between the City of
Richmond and
EXHIBIT B
PAYMENT PROVISIONS
{PLEASE NOTE THAT THE CITY OF
RICHMOND SHALL NOT PAY FOR SERVICES
THAT EXCEED THE CONTRACT PA YMENT LIMIT UNLESS A CONTRACT
AMENDMENT HAS BEEN APPROVED BY THE CITY COUNCIL OR THE CITY MANAGER}
1. Provided Contractor is not in default under this Contract, Contractor shall be compensated as provided below.
2. Any and all payments made pursuant to this Contract shall be subject to the Contract Payment Limit. The Payment Limit includes expenses (phones, photo copying, meals and travel etc). Invoices, shall be adequately detailed, based on accurate records, and be in a form reasonably satisfactory to the City. Contractor may be required to provide back-up material upon request.
3. Contractor shall submit timely invoices to the following address:
Attention: City of Richmond, Finance Department - Accounts Payable Project Manager: Department:
PO Box 4046
Richmond, CA 94804-0046
4. All invoices that are submitted by Contra ctor shall be subject to the approval of the City’s Project Manager, before payments shall be authorized.
5. The City will pay invoice(s) within 45 days a fter completion of services to the City’s satisfaction. The City shall not pay late fees or interest.
6. A Richmond business license shall be obtained before any payment under this Contract shall be authorized and the business license must be kept current during the term of this Contract for payments to continue to be authorized.
7. All insurance coverage required by this Contract shall be provided by the Contractor before this Contract shall be executed by the City. The insurance coverage must be kept current during the term of this Contract for payments to continue to be authorized.
For the Contract between the City of
Richmond and
EXHIBIT C
AUTHORIZED REPRESENTATIVES AND NOTICES
1. Notices . All notices, demands, statements, or communications provided for by this Contract shall be in writing and may be delivered by deposit in the United States mail, postage prepaid. Notices to the City shall be addressed to the Department Head and (as delineated below in section 1.1) to the project manager responsible for the
administration of or the supervision of the scope of work under this Contract. Notices to the Contractor shall be addressed to the party designated by Contractor (as delineated below in section 1.2). Notice shall be deemed delivered (a) upon personal delivery; (b) as of the fifth business day after mailing by United States certified mail, postage prepaid, addressed to the proper party; or (c) as of 12:00 p.m. on the second business day immediately after the day it is deposited with and accepted by Federal Express, or a similar overnight courier service, addressed to the proper party and marked for next business day morning delivery. For the purposes of this Contract, a "business day" means any day Monday through Friday that is not a holiday recognized by the federal government or the State of California.
1. 1 CITY hereby designates as its Authorized Representative the Project Manager whose name and address are as follows:
City of Richmond
Richmond, CA 94804-0046
1. 2 CONTRACTOR hereby designates as its Authorized Representative the Project Manager whose name and address are as follows:
General Conditions/EJ/TE 01-19-11 1 of 13
EXHIBIT D
GENERAL
CONDITIONS
1. Independent Contractor . Contractor acknowledges, represents and warrants that Contractor is not a regular or temporary employee, joint venturer or partner of
the City, but rather an independent Contractor. This
Contract shall not be construed to create an agency, servant, employee, partnership, or joint venture relationship. As an independent Contractor, Contractor shall have no authority to bind City to any obligation or to act as City's agent except as expressly provided herein. Due to the independent Contractor relationship created by this Contract, City shall not withhold state or federal income taxes, the reporting of which shall be Contractor's sole responsibility.
2. Brokers . Contractor acknowledges, represents and warrants that Contractor has not hired, retained or agreed to pay any entity or person any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Contract.
3. City Property . The rights to applicable plans, drawings, reports, calculations, data, specifications, videos, graphics or other materials prepared for or obtained pursuant to this Contract, which, upon request, are to be delivered to City within a reasonable time, shall be deemed assigned to City. If applicable, Contractor shall prepare check prints upon request. Notwithstanding the foregoing, Contractor shall not be obligated to provide to City proprietary software or data which Contractor has developed or had developed for Contractor's own use; provided, however, that Contractor shall, pursuant to Section 15 below, indemnify, defend and hold harmless City from and against any discovery or Public Records Act request seeking the disclosure of such proprietary software or data.
4. Patents, Trademarks, Copyrights and Rights in Data
. Contractor shall not
publish or transfer any materials, discoveries, developments, concepts, designs, ideas, know how, improvements, inventions and/or original works of authorship resulting from activities supported by this Contract without the expres
s prior written consent of the City Manager. If anything resulting from activities supported by this Contract is patentable, trademarkable, copyrightable or otherwise legally protectable, City reserves the exclusive right to seek such intellectual property rights. Notwithstanding the foregoing, Contractor may, after receiving City's prior written consent, seek patent, trademark, copyright or other intellectual property rights on anything resulting from activities supported by this Contract. However, City reserves, and Contractor irrevocably grants, a nonexclusive, fully paid-up, royalty-free, assumable, perpetual, worldwide license, with the right to transfer, sublicense, practice and exploit said license and the right to make, have made, copy, modify, make derivative works of, use, sell, General Conditions/EJ/TE 01-19-11 2 of 13
import, and otherwise distribute under all
applicable intellectual properties
without restriction of any kind said license.
Contractor further agrees to assist City, at City's expense, in every proper way to secure the City’s rights in any patents, trademarks, copyrights or other intellectual property rights relating thereto, including the disclosure to City of all pertinent information and data with respect thereto. Contractor shall also assist City in the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments which City shall deem necessary in order to apply for, obtain, maintain and transfer such rights, or if not transferable, to waive such rights. Contractor shall further assist City in the execution of all applications, specifications, oaths, assignments, recordations and all other instruments which City shall deem necessary in order to assign and convey to City, and any assigns and nominees the sole and exclusive right, title and interest in and to any patents, trademarks, copyrights or other intellectual property rights relating thereto. Contractor further agrees that its obligation to execute or cause to be executed, when it is in Contractor's power to do so, any such instruments or papers shall continue during and at all times after the end of Contractor's services and until the expiration of the last such intellectual property right. Contractor hereby irrevocably designates and appoints City, and its duly authorized officers, agents and servants, as its agent and attorney-in-fact, to act for and in its behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters of patents, copyright and other registrations. This power of attorney is coupled with an interest and shall not be affected by Contractor's subsequent incapacity.
5. Inspection
. Contractor's performance, place of business and records pertaining to this Contract are subject to monitoring, inspection, review and audit by authorized representatives of the CITY, the State of California, and the United States Government.
If the project or services set forth in Exhibit A shall be performed on City or other public property, City shall have the right to inspect such work without notice. If such project or services shall not be performed on City or other public property, City shall have the right to inspect such work upon reasonable notice.
6. Services
. The project or services set forth in Exhibit A shall be performed to the full satisfaction and approval of City. In the event that the project or services set forth in Exhibit A are also itemized by price, City, in its sole discretion, may, upon notice to Contractor, delete certain items or services set forth in Exhibit A, in which case there shall be a corresponding reduction in the amount of compensation paid to Contractor.
General Conditions/EJ/TE 01-19-11 3 of 13
Contractor shall, at its own cost and expens
e, furnish all facilities and
equipment necessary for Contractor to complete the project or perform the services required herein, unless otherwise provided in Exhibit A.
7. Records . Contractor shall keep and make available for inspection and copying by authorized representatives of the City, the State of California, and the United States Government, the Contractor's regular business records and such additional records pertaining to this Contract as may be required by the City.
Contractor shall retain all documents pertaining to this Contract for a period of five (5) years after this C ontract's termination (or for any further period that is required by law) and until all Fede ral or State audits are complete and exceptions resolved for this contract's funding period. Upon request, CONTRACTOR shall make these records available to authorized representatives of the CITY, the State of California, and the United States Government.
Contractor shall keep full and detailed accounts, maintain records, and exercise such controls as may be necessary for proper financial management under this Contract. The Contractor’s accounting and control systems shall be satisfactory to City. Contractor's accounting systems shall conform to generally accepted accounting principles and all records shall provide a breakdown of total costs charged under this Contract, including properly executed payrolls, time records, utility bills, invoices and vouchers. The City shall be afforded prompt access to Contractor's records, books, and Contractor shall preserve such project records for a period of at least five (5 years after the termination of this Contract , or for such longer period as may be required by law.
Contractor shall permit City and its authorized representatives and accountants to inspect, examine and copy Contractor's books, records, accounts, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the project or services set forth in Exhibit A, and any and all data relevant to this Contract at any reasonable time for the purpose of auditing and verifying statements, invoices, or bills submitted by Contractor pursuant to this Contract and shall provide such assistance as may be reasonably required in the course of such inspection. Contractor shall also allow City access to the record keeping and accounting personnel of Contractor.
City further reserves the right to examine and re-examine said books, records, accounts, and data during the five (5 year period following the termination of this Contract; and Contractor shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any manner whatever for five (5 years after the termination of this Contract.
General Conditions/EJ/TE 01-19-11 4 of 13
Pursuant to California Government Code § 10527, the parties to this Contract shall be subject to the examination and audit of representatives of the Auditor General of the State of California for a period of three (3) years after final payment under this Contract. The examination and audit shall be confined to those matters connected with the performance of this Contract including, but not limited to, the cost of administering this Contract.
8. Changes and Extra Work . All changes and/or extra work under this Contract shall be performed and paid for in accordance with the following:
Only the City Council or the City Manager may authorize extra and/or changed work. Contractor expressly recognizes that other City personnel are without authorization to either order extra and/or changed work or waive contract requirements. Failure of Contractor to secure the authorization for such extra and/or changed work shall constitute a waiver of any and all right to adjustment in contract price due to such unauthorized work and Contractor thereafter shall be entitled to no compensation whatsoever for performance of such extra and/or changed work.
If Contractor is of the opinion that any work which Contractor has been directed to perform is beyond the scope of this Contract and constitutes extra work, Contractor shall promptly notify City of the fact. The City shall make a determination as to whether or not such work is, in fact, beyond the scope of this Contract and constitutes extra work. In the event that City determines that such work does constitute extra work, City shall provide extra compensation to Contractor on a fair and equitable basis. A change order or Contract Amendment providing for such compensation for extra work shall be negotiated between City and Contractor and executed by Contractor and the appropriate City official.
In the event City determines that such work does not constitute extra work, Contractor shall not be paid extra compensation above that provided herein and if such determination is made by City staff, said determination may be appealed to the City Council; provided, however, a written appeal must be submitted to the City Manager within five (5) days after the staff's determination is sent to Contractor. Said written appeal shall include a description of each and every ground upon which Contractor challenges the staff's determination.
9. Additional Assistance
. If this Contract requires Contractor to prepare
plans and specifications, Contractor shall provide assistance as necessary to resolve any questions regarding such plans and specifications that may arise during the period of advertising for bids, and Contractor shall issue General Conditions/EJ/TE 01-19-11 5 of 13
any necessary addenda to the plans and specifications as requested. In the event Contractor is of the opinion that City's requests for addenda and assistance is outside the scope of normal services, the parties shall proceed in accordance with the changes and extra work provisions of Section 8 of these General Conditions.
10. Professional Ability. Contractor acknowledges, represents and warrants that Contractor and its employees are skilled and able to competently provide the services hereunder, and possess all professional licenses, certifications, and approvals necessary to engage in their occupations.
City has relied upon the professional ability and training of Contractor as a material inducement to enter into this Contract. Contractor shall perform in accordance with generally accepted professional practices and standards of Contractor's profession. In the event that City, in its sole discretion, desires the removal of any person employed or retained by Contractor to perform services hereunder, such person shall be removed immediately upon receiving notice from City.
11. Business License
. Contractor shall obtain a Richmond Business License
before performing any services required under this Contract. The failure to so obtain such license shall be a material breach of this Contract and grounds for immediate termination by City; provided, however, that City may waive the business license requirement in writing under unusual or extraordinary circumstances without necessitating any modification of this Contract to reflect such waiver.
12. Termination Without Default
. Notwithstanding any provision herein to the
contrary, City may, in its sole and absolute discretion and without cause, terminate this Contract at any time prior to completion by Contractor of the project or services hereunder, immediately upon written notice to Contractor. Contractor may terminate this Contract at any time in its sole and absolute discretion and without cause upon 30 days' written notice to City. In the event of termination by either party, Contractor shall be compensated for: (1) all authorized work satisfactorily performed prior to the effective date of termination; (2) necessary materials or services of others ordered by Contractor for this Contract, prior to receipt of notice of termination, irrespective of whether such materials or services of others have actually been delivered, provided that Contractor is not able to cancel such orders. Compensation for Contractor in such event shall be determined by City in accordance with the percentage of the project or services completed by Contractor; and all of Contractor's finished or unfinished work product through the time of the City's last payment shall be transferred and assigned to City. Additionally, in the event of such termination, the City may proceed with the work in any reasonable manner it chooses.
General Conditions/EJ/TE 01-19-11 6 of 13
13. Termination in the Event of Default. Should Contractor fail to perform any of its obligations hereunder, within the time and in the manner provided or otherwise violate any of the terms of this Contract, City may immediately terminate this Contract by giving written notice of such termination, stating the reasons for such termination. Contractor shall be compensated as provided in Section 12 of these General Conditions; provided, however, there shall be deducted from such amount the amount of damage, including attorney's fees, expert witness fees and costs, if any, sustained by City by virtue of Contractor's breach of this Contract. Additionally, in the event of such termination, the City may proceed with the work in any reasonable manner it chooses.
14. Conflict of Interest. Contractor acknowledges, represents and warrants that Contractor shall avoid all conflicts of interest (as defined under any federal, state or local statute, rule or regulation, or at common law) with respect to this Contract. Contractor further acknowledges, represents and warrants that no City official or employee has any economic interest, as defined in Title 2, California Code of Regulations §§ 18703.1 through 18703.5, with Contractor that would invalidate this Contract. Contractor acknowledges that in the event that Contractor shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Contract, all consideration received under this Contract shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Contract for one (1) year.
15. Indemnification
.
(a) If this Contract is a contract for design professional services subject to California Civil Code Section 2782.8(a) and Contractor is a design professional, as defined in California Civil Code Section 2782.8(b)(2), Contractor shall hold harmless, defend and indemnify the City, its officers, agents, employees, and volunteers from and against any and all claims, damages, losses, and expenses including attorneys’ fees arising out of, or pertaining to, or relating to the negligence, recklessness, or willful misconduct of the Contractor, except where caused by the active negligence, sole negligence, or willful misconduct of the City. To the fullest extent permitted by law, Contractor shall immediately defend and indemnify the City and its officers, agents, employees, and volunteers from and against any and all liabilities, regardless of nature or type, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, or its employees, agents, or subcontractors.
Liabilities subject to the duties to defend and indemnify include, without limitation, any and all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution. Contractor’s obligation to General Conditions/EJ/TE 01-19-11 7 of 13
indemnify applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misc onduct of an
indemnified party.
(b) If this Contract is not a contract for design professional services subject to California Civil Code Section 2782.8(a) or Contractor is not a design professional as defined in California Civil Code Section 2782.8(b)(2), Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees and volunteers from any and all claims, suits, or actions of every name, kind and description, brought forth on account of injuries to or death of any person or damage to property arising from or connected with the willful misconduct, negligent acts, errors or omissions, ultra-hazardous activities, activities giving rise to strict liability, or defects in design by Contractor or any person directly or indirectly employed by, or acting as, the agent for Contractor in the performance of this Contract, including the concurrent or successive passive negligence of the City, its officers, agents, employees or volunteers.
(c) It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Contractor shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, with counsel approved by the City, the City and its officers, agents, employees, and volunteers, immediately upon tender to Contractor of the claim in any form or at any stage of an action or proceeding, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend under this Section 15. The obligation to defend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent counsel if Contractor asserts that liability is caused in whole, or in part, by the negligence or willful misconduct of an indemnified party. (d) The review, acceptance or approval of the Contractor’s work or work product by any indemnified party shall not affect, relieve or reduce the Contractor’s indemnification or defense obligations. This Section 15 survives completion of the services or the termination of this Contract.
The provisions of this Section 15 are not limited by, and do not affect, the provisions of this Contract relating to insurance.
(e) Acceptance of insurance certificates and endorsements required under this Contract does not relieve Contractor from liability under this Section
15. This Section 15 shall apply whether or not such insurance policies are determined to be applicable to any such damages or claims for damages.
16. Safety
. Contractor acknowledges that the City is committed to the highest standards of workplace safety. Contractor shall perform all work hereunder in full compliance with applicable local, state and federal safety requirements including but not limited to Occupational Safety and Health Administration requirements, and shall assume sole and complete General Conditions/EJ/TE 01-19-11 8 of 13
responsibility for the safety of Contractor's employees and any subContractor's employees. If a death, serious personal injury or substantial property damage occurs in connection with the performance of this Contract, Contractor shall immediately notify the City by telephone.
17. Insurance. Insurance requirements are set forth in Exhibit F to this Contract. Contractor shall abide by the insurance requirements set forth in said Exhibit F.
18. Non-Liability of Officials and Employees of the City. No official or employee of the City shall be personally liable for any default or liability under this Contract.
19. Compliance with Laws
. Contractor shall comply with all federal, state and
local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, with respect to this Contract, including without limitation environmental laws, employment discrimination laws and prevailing wage laws. Compliance under this provision includes compliance with all provisions of the Richmond Municipal Code ("Municipal Code"), including Chapters 2.50, 2.52, 2.56, and 2.60, if applicable.
Contractor acknowledges that under § 2.60.070 of the Municipal Code ("Living Wage Ordinance"), Contractor shall promptly provide to City documents and information verifying its compliance with the Living Wage Ordinance. Also as prescribed in § 2.60.070, Contractor shall notify each of its affected employees with regards to the wages that are required to be paid pursuant to the Living Wage Ordinance.
Contractor shall comply with § 2.28.030 of the Municipal Code, obligating every Contractor or subcontractor under a contract or subcontract with the City for public work or for goods or for services to refrain from discriminatory employment or subcontracting practices on the basis of race, color, sex, sexual orientation, religious creed, national origin or ancestry of any employee, any applicant for employment or any potential subcontractor.
Contractor acknowledges that the City’s Drug Free Workplace Policy, Violence in the Workplace Policy and the Policy Against Workplace Harassment, are available on the City’s website at
http://www.ci.richmond.ca.us/workplacepolicies
. Contractor agrees to
abide by the terms and conditions of said policies.
20. Limitations upon Subcontracting and Assignment. This Contract binds the heirs, successors, assigns and representatives of Contractor. The Contractor shall not enter into subcontracts for any work contemplated General Conditions/EJ/TE 01-19-11 9 of 13
under this Contract and shall not
assign this Contract, nor any portion
hereof or monies due or to become due, without the prior written consent of the City Council or its designee.
Contractor acknowledges that the services which Contractor shall provide under this Contract are unique, personal services which, except as otherwise provided herein, Contractor shall not assign or sublet to any other party without the prior written approval of City, which approval may be withheld in City's sole and absolute discretion. In the event that City, in writing, approves any assignment or subletting of this Contract or the retention of subcontractors by Contractor, Contractor shall provide to City upon request copies of each and every subcontract contract prior to the execution thereof by Contractor and subcontractor. Any assignment by Contractor of any or all of its rights under this Contract without first obtaining City's prior written consent shall be a default under this Contract.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor (if applicable), or of the interest of any general partner or joint venturer or syndicate member if Contractor is a partnership or joint-venture or syndicate, which shall result in a change of control of Contractor, shall be deemed an assignment. For this purpose, control shall mean fifty percent or more of the voting power or twenty-five percent or more of the assets of the corporation, partnership or joint-venture.
21. Integration
. This Contract constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any previous oral or written agreement; provided, however, that correspondence or documents exchanged between Contractor and City may be used to assist in the interpretation of the Exhibits to this Contract.
22. Modifications and Amendments. This Contract may be modified or amended only by a change order or Contract Amendment executed by both parties and approved as to form by the City Attorney.
23. Conflicting Provisions. In the event of a conflict between these General Conditions and those of any Exhibit or attachment hereto, these General Conditions shall prevail; provided, however, that any Special Conditions as set forth in Exhibit E shall prevail over these General Conditions. In the event of a conflict between the terms and conditions of any two or more Exhibits or attachments hereto, those prepared by City shall prevail over those prepared by the Contractor, and the terms and conditions preferred by the City shall prevail over those preferred by the Contractor.
24. Non-exclus
ivity. Notwithstanding any provision herein to the contrary, the services provided by Contractor hereunder shall be non-exclusive, and General Conditions/EJ/TE 01-19-11 10 of 13
City reserves the right to employ other Contractors in connection with the project.
25. Exhibits. All Exhibits hereto are made a part hereof and incorporated herein by reference; provided, however, that any language in Exhibit A which does not pertain to the project description, proposal, scope of services, or method of compensation (as applicable) , or any corresponding responsibilities of City, shall be deemed extraneous to, and not a part of, this Contract.
26. Force Majeure. Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that the performance of such an obligation is
prevented or delayed by reason of
acts of God, strikes, boycotts, lock-outs, inability to procure materials not related to the price thereof, failure of power, restrictive governmental laws and regulations enacted after the date of this Contract, riots, civil unrest, acts of terrorism, insurrection, war, declaration of a state or national emergency or other reasons of a like nature not within the reasonable control of such party.
27. Time of the Essence
. Time is of the essence of this Contract. Contractor and City agree that any time period set forth in Exhibit A represents their best estimates with respect to completion dates and both Contractor and City acknowledge that departures from the schedule may occur.
Therefore, both Contractor and City will use reasonable efforts to notify one another of changes to the schedule. Contractor shall not be responsible for performance delays caused by others, or delays beyond Contractor's control, and such delays shall extend the times for performance of Contractor's work.
28. Confidentiality
. Contractor agrees to comply with, and to require its employees, agents and partners to comply with, all applicable State or Federal statutes or regulations respecting confidentially, including but not limited to, the identity of persons served under this Contract, their records, or services provided them, and assures that:
All applications and records concerning any individual made or kept by Contractor or any public officer or agency in connection with the administration of or relating to services provided under this Contract will be confidential, and will not be open to examination for any purposes not directly connected with the administration of such service.
No person will publish or disclose or permit or cause to be published or disclosed, any list of persons receiving services, except as may be required in the administration of such service.
General Conditions/EJ/TE 01-19-11 11 of 13
29. Third
Parties. Nothing herein shall be interpreted as creating any rights or benefits in any third parties. For purposes hereof, transferees or assignees as permitted under this Contract shall not be considered "third parties."
30. Governing Law. This Contract shall be construed in accordance with the law of the State of California without regard to principles of conflicts of law.
This Contract is made in Contra Costa County, California, and any action relating to this Contract shall be instituted and prosecuted in the courts of Contra Costa County, California.
31. Nonrenewal
. Contractor understands and agrees that there is no
representation, implication, or understanding that the services provided by Contractor under this Contract will be purchased or renewed by the City under a new contract following expiration or termination of this Contract, and waives all rights or claims to notice or hearing respecting any failure by City to continue the purchase of all or any failure to continue purchase of all or any such services from Contractor.
32. Claims. Any claim by Contractor against City hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the City shall be waived if not made within six months after accrual of the cause of action.
33. Interpretation. This Contract shall be interpreted as if drafted by both parties.
34. Warranty. In the event that any product shall be provided to the City as part of this Contract, Contractor warrants as follows: Contractor possesses good title to the product and the right to transfer the product to City; the product shall be delivered to the City free from any security interest or other lien; the product meets any specifications contained herein; the product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery; and the product shall be fit for its intended purpose(s). Notwithstanding the foregoing, consumable and maintenance items (such as light bulbs and batteries) shall be warranted for a period of one hundred and eighty (180) days from the date of delivery. All repairs during the warranty period shall be promptly performed by Contractor, at Contractor's expense, including shipping.
35. Severability
. In the event that any of the provisions or portions or applications thereof of this Contract are held to be unenforceable or invalid by any court of competent jurisdiction, City and Contractor shall negotiate an equitable adjustment in the provisions of the Contract with a view General Conditions/EJ/TE 01-19-11 12 of 13
toward effecting the purpose of this Contract, and the validity and enforceability of the remaining pr
ovisions or portions or applications
thereof, shall not be affected thereby.
36. Authority. City warrants and represents that the signatory hereto (the Mayor of the City of Richmond or the City Manager) is duly authorized to enter into and execute this Contract on behalf of City. The party signing on behalf of Contractor warrants and represents that he or she is duly authorized to enter into and execute this Contract on behalf of Contractor, and shall be personally liable to City if he or she is not duly authorized to enter into and execute this Contract on behalf of Contractor.
37. Waiver. The waiver by City of any breach of any term or provision of this Contract shall not be construed as a waiver of any subsequent breach.
Inspections or approvals, or statements by any officer, agent or employee of the City relating to the Contractor’s performance, or payments therefore, or any combination of these acts, shall not relieve the Contractor’s obligation to fulfill this Contract as prescribed; nor shall the City be thereby stopped from bringing any action for damages or enforcement arising from any failure to comply with any of the terms and conditions of this Contract.
38. Possessory Interest. If this Contract results in the Contractor having possession of, claim to or right to the possession of land or improvements, but does not vest ownership of the land or improvements in the same person, or if this Contract results in the placement of taxable improvements on tax exempt land (Revenue and Taxation Code 107), such interest or improvements may represent a possessory interest subject to property tax, and Contractor may be subject to the payment of property taxes levied on such interest.
39. Performance and Final Acceptance
.
Contractor represents that it is experienced, qualified, registered, licensed, equipped, organized and financ
ed to perform the services under this
Contract.
Contractor shall perform the services under this Contract with that degree of skill and judgment normally exercised by professional firms performing services of a similar nature in the State of California, and shall be responsible for the professional quality, technical accuracy and coordination of the services it performs under this Contract. In addition to the other rights and remedies which City may have, Contractor shall, at its own expense, correct any services which fail to meet the above standard.
General Conditions/EJ/TE 01-19-11 13 of 13
City shall provide Cont
ractor an opportunity to cure errors and omission
which may be disclosed during the review of submittals, with no increase in the authorized Contract Payment Limit. Should Contractor fail to make necessary corrections in a timely manner, such corrections shall be made by the City and the cost thereof shall be charged to Contractor.
If warranted, City shall determine, and Contractor may request such determination, that Contractor has satisfactorily completed performance of this Contract. Upon such determination, City shall issue to Contractor a written Notice of Final Acceptance, after which Contractor shall not incur further costs under this Contract. Contractor shall respond to such Notice of Final Acceptance by executing and submitting to City a Release and Certificate of Final Payment.
40. Survival. The rights and obligations of the parties which by their nature survive termination or completion of the services covered by this Contract shall remain in full force and effect after termination or completion.
For the Contract between the City of
Richmond and
EXHIBIT E
SPECIAL CONDITIONS
The General Conditions are hereby amended to include the following modifications and/or provisions (if applicable):
For the Contract between the City of
Richmond and Governmentjobs.com dba NeoGov
EXHIBIT E
SPECIAL CONDITIONS
Paragraph 15 (a) is revised to read: "If this Contract is a contract for design professional services subject to California Civil Code Section 2782.8(a) and Contractor is a design professional, as defined in California Civil Code Section 2782.8(b)(2), Contractor shall hold harmless, defend and indemnify the City from and against third party claims, damages, losses, and expenses including reasonable attorneys' fees actually awarded and arising out of active negligence, recklessness, or willful misconduct of the Contractor, except where caused by the active negligence, sole negligence or willful misconduct of the City. Liabilities subject to the duties to defend and indemnify include, without limitation, any and all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys' fees; reasonable court costs; ....." Paragraph 20. Limitations upon Subcontracting and Assignment first paragraph is revised to read: "This Contract binds the heirs, successors, assigns and representatives of Contractor." Second paragraph of Paragraph 20 is hereby eliminated. Third paragraph of Paragraph 20 is revised to read: " The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor (if applicable), or of the interest of any general partner or joint venturer or syndicate member if Contractor is a partnership or joint-venture or syndicate, which shall result in a change of control of Contractor (collectively referred to as "Change in Control"), shall be deemed an assignment, and Contractor shall not require and any consent from the City in the event of a Change in Control.".....
CITY OF RICHMOND
Sanctuary City
Compliance Statement
Vendor SCCO Compliance Statement (Augt2020)
The undersigned, an authorized agent of (hereafter "Contractor"), has had an opportunity to review the requirements of City of Richmond Ordinance 12-18 (hereafter "Sanctuary City Contracting Ordinance" or “SCCO”). Contractor understands and agrees that the City may choose with whom it will maintain business relations and may refrain from contracting with any person or entity that provides Data Broker or Extreme Vetting services to the U.S. Immigration and Customs Enforcement Division of the United States Department of Homeland Security (“ICE”).
Contractor understands the meaning of the following terms used in the SCCO:
a. "Data Broker” means either of the following:
i. The collection of information, including personal information about consumers, from a wide variety of sources for the purposes of reselling such information to their customers, which include both private-sector business and government agencies;
ii. The aggregation of data that was collected for another purpose from that for which it is ultimately used.
b. “Extreme Vetting” means data mining, threat modeling, predictive risk analysis, or other similar services."
Contractor understands that it is not eligible to receive or retain a City contract if at the time the Contract is executed, or at any time during the term of the Contract, it provides Data Broker or Extreme Vetting services to ICE.
Contractor further understands and agrees that Contractor's failure to comply with the SCCO shall constitute a material default of the Contract and the City Manager may terminate the Contract and bar Contractor from bidding on future contracts with the City for five (5) years from the effective date of the contract termination.
By executing this Statement, Contractor certifies that it complies with the requirements of the SCCO and that if at any time during the term of the Contract it ceases to comply, Contractor will promptly notify the City Manager in writing. Any person or entity who knowingly or willingly supplies false information in violation of the SCCO shall be guilty of a misdemeanor and subject to a $1,000 fine.
Based on the foregoing, the undersigned declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this day of , 20 , at , California.
Printed Name: Title:
Signed: Date:
Business Entity:
For the Contract between the City of
Richmond and
EXHIBIT F
INSURANCE PROVISIONS
During the entire term of this Contract and any extension or modification thereof, the CONTRACTOR shall keep in effect insurance policies meeting the insurance requirements specified in the insurance provisions which are attached hereto and incorporated herein by this reference.
Exhibit F
Section 8
City of Richmond - Insurance Requirements - Type 8:
Automobile Liability
Cyber Liability
Required Policy Conditions
A. M. Best Rating
Additional Insured Endorsement
Additional Insured Endorsement
(continued)
Prlma_ry and Noncontributory
Revised: September 2011
IT and Cyber Risks
I
$1,000,000 per occurrence for bodily Injury and property damage.
Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving Infringement of Intellectual property, including but not limited to Infringement of copyright, trademark, trade dress, Invasion of privacy violations, information theft; dama.ge 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 and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
If the Vendor maintains broader coverage and/or higher limits than the minimL1ms shown above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coveraae shall be available to the Entity.
Same limits as General Liability.
A:VII or Better. If the A.M. Best Rating falls below the required rating, CONTRACTOR must replace coverage immediately and provide notice to City.
Applicable to General Llabillty Coverage.
The City of Richmond, its officers, officials, employees, agents and volunteers are to be named as additional insureds f(lr all liability arising out of the operations by or on behalf of the named insured, including but not limited to bodily Injury, deaths and property damage or destruction arising in any respect directly or indirectly in the performance of this contract.
ISO form CG 20 10 (11/BS) odts equivalent is required. The endorsement must not exclude products and completed operations coverage. If it does, then CG 20 37 (10/01.) is also required.
SAMPLE Endorsements can be found at
htto; llwww.ci.richmond.ea.us/jndex.aspx?nid=61.
The contractor's insurance coverage must be primary coverage as it pertains to the City, its officers, officials,. employees, agents and volunteers. Any Insurance or self insurance maintained by the City is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance.
Type 1 - Page 2 of4
Exhibit F
Section 8
City of Richmond - Insurance Requirements - Type 8:
IT and Cyber Risks
Waiver of Subrogation Contractor's insurer will provide a Waiver of Subrogation in favor of the City Endorsement Form for Workers Compensation and Builder's Risk/ Course of Construction coverage during the life of this contract.
SAMPLE Endorsements can be found at
httQ:llwww.ci.richmond.ca.uslfndex.asux?nid=61
Deductibles and Self-Insured Any deductible or self-insured retention must be declared to and approved Retentions by the City. At the option of the City either the Insurer shall reduce or eliminate such deductibles or self-insured retention as respects the City or the CONTRACTOR shall procure a financial guarantee in an amount equal to the deductible or self-insured retention guaranteeing payment of losses and related investigations, claims administration and defense expenses.
Contractor is responsible for satisfaction of the deductible and/or self-insured retention for each loss.
1. Umbrella/Excess Liability Policies
If an Umbrella or Excess Liability Policy is used to meet the liability limits, coverage shall be as broad as specified for underlying coverages and cover those insured in the underlying pollcies.
Claims-Made Policfos
If any Insurance policy is written on a claims-made form: 1) the retroactive date must be shown, and must be before the date of the contract or the beginning of contract work. 2) Insurance must be maintained and evidence of insurance must be provided for ai: least five (5) years after completion of the contract of work. 3) If coverage is canceled or non renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
Subcontractors
CONTRACTOR shall include all subcontractors as insured under its policies or shall furnish to the City for review and approval, separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein.
CONTRACTOR agrees to defend and indemnify the City of Richmond for any damage resulting to It from failure of either CONTRACTOR or any subcontractor to take out or maintain the required insurance policies. The fact that insurance Is obtained by CONTRACTOR, and/or CONTRACTOR's subcontractors, will not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this contract. Damages recoverable by CITY from CONTRACTOR or any third party will not be limited by the amount of the required Insurance coverage.
Verification of Coverage
All original certificates and endorsements shall be received and approved by the City before work may begin. The City of Richmond reserves the right to require complete, certified copies of all required Insurance policies including endorsements affecting the coverage at any time.
Original insurance certificates and required policy endorsements shall be mailed, or delivered to the Designated Project Manager for the City of Richmond.
Insurance certificates and endorsements rriay be faxed to the Designated Project Manager. However, Contractor must mall the original certificates and endorsements to Designated Project Manager once Faxed.
Continuous Coverage
CONTRACTOR shall maintain the required insurance for the life of the contract. Should the CONTRACTOR cease to have insurance as required during this time, all work by the CONTRACTOR pursuant to this agreement shall cease until Type 1 - Page 3 of4
Revised: September 2011