BetterUp Enterprise Agreement Apr 2020 1
BETTERUP ENTERPRISE AGREEMENT
This BetterUp Enterprise Agreement (“Agreement”) is made and entered into as of^^_________, (the “Effective Date”) by and between the City of Santa Monica, a California municipal corporation (“City”), and BetterUp, Inc. (“BetterUp”) (each a “Party” and collectively “Parties”). In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. The services provided to the City by BetterUp under this Agreement shall be referred to hereinafter as the “BetterUp Services”. BetterUp shall provide City personnel—each of them a “User” and collectively “Users”—with the right to access the BetterUp Platform and BetterUp Services for a specific period of time, each period referred to as a “Subscription Term”. BetterUp will provide the BetterUp Services pursuant to mutually agreed upon orders (each, an “Order”). Each Order will include a description of the BetterUp Services to be provided to the City during the applicable Subscription Term and the associated fees and payment terms for said services. The initial Order to be used by the Parties under this Agreement is attached hereto and is incorporated by reference as Exhibit A (Order One). To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms of this Agreement will govern.
2. Subscriptions. Unless otherwise provided in the applicable Order, BetterUp Services purchased by the City and the corresponding access to the BetterUp Platform, are considered to be subscriptions for the Subscription Term stated in said Order. The City agrees that its purchases of BetterUp Services under this Agreement are not contingent on the delivery of any future functionality, feature or products, or dependent on any oral or written public comments made by BetterUp regarding future functionality, feature or products.
3. User Limits. BetterUp Services and BetterUp Platform are subject to User limits specified in the Order, and the City is not allowed to exceed the User limits. In the event that the City exceeds the User limits specified in the Order, City will notify BetterUp by email or in writing within a reasonable period of time and will execute a new Order for the additional Users and the applicable BetterUp Services and use of the BetterUp Platform. The City shall promptly pay the invoice associated with the new Order following its receipt of a request from BetterUp and shall do so in accordance with Section 8.2.
4. Support. BetterUp shall provide the City with reasonable technical support regarding Users’ access and use of the BetterUp Services. In addition, BetterUp may provide implementation and/or other professional services at City’s request and on mutually agreed upon terms. BetterUp is not responsible for issues resulting from misuse by City Users, connectivity issues unrelated to the BetterUp Platform, or force majeure events. The Parties agree that a force majeure event shall be defined as a circumstance beyond each Party’s reasonable control, including without limitation, acts of God, fires, floods, earthquakes, wars, civil disturbances, terrorism, pandemics, or sabotage. Each Party will have no liability for any such failure or delay caused by a force majeure event to the extent that it promptly uses commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations hereunder.
5. License and Restrictions. Subject to the terms of this Agreement, BetterUp grants to the City a limited, non-exclusive, non-transferable license to access the BetterUp Platform solely for the City’s internal business purposes and not for resale or further distribution. The City’s right to use the BetterUp Platform is limited by all terms and conditions herein. Except for this license granted to City, BetterUp and its licensors retain all right, title and interest in and to the BetterUp Platform and BetterUp Services, DocuSign Envelope ID: 4FCC304F-1A9A-4DAE-B726-202888301AA3 6/30/2020
BetterUp Enterprise Agreement Apr 2020 2
including all related intellectual property rights. The BetterUp Platform is protected by applicable intellectual property laws, including U.S. copyright law and international treaties. The City is responsible for establishing its own policy as to what information is appropriate for Users to share as part of the BetterUp Services. The City and its Users shall not (a) rent, lease, copy, disclose, provide access to or sublicense the BetterUp Platform, (b) use the BetterUp Platform for the benefit of, or to provide any service to, a third party, or (c) publicly disseminate information regarding the performance of the BetterUp Platform without BetterUp’s prior written consent.
6. User Interactions. User interactions with BetterUp in connection with the BetterUp Services are subject to the BetterUp Terms of Service (found at https://www.betterup.co/en-us/terms/) and Privacy Policy (found at https://www.betterup.co/en-us/privacy-policy/) (collectively “BetterUp User Terms”). The following sections of the BetterUp Terms of Service shall not apply to Users and the topics included therein shall be governed by this Agreement: 5 (Fees and Payment Terms), 15 (Limitation of Liability), 16.1 (Governing Law and Venue), and 16.6 (Assignment). BetterUp may use any data, information or materials collected or received from Users through these interactions, in accordance with the BetterUp User Terms and for its internal business purposes. BetterUp shall allow the City’s personnel to access the BetterUp Services pursuant to the terms of this Agreement and the applicable Order, however the City is responsible for establishing, to the extent applicable, its own policy with Users as to what information is appropriate to share as part of the BetterUp Services.
7. BetterUp Analytics. As part of the services provided on the BetterUp Platform, BetterUp will, during the term of this Agreement, provide the City with access to reports outlining (a) which Users have activated with BetterUp, (b) sessions completed, (c) coaching start and end dates, and (d) aggregated and anonymous statistics regarding the BetterUp Services the Users received, such as i) metadata and data related to usage (e.g., average session length, frequency of use), ii) composition of development plans (e.g., top skills chosen by Users, popular learning activities), and iii) User-generated data from learning activities (e.g., results from psychometric assessments) (collectively, “BetterUp Analytics”). The City may only use the BetterUp Analytics for its internal business purposes, in compliance with all applicable laws.
Consistent with the BetterUp User Terms and its confidentiality policies, BetterUp will not disclose Userspecific coaching content or results to the City.
8. Fees and Payment Terms.
8.1 Fees. The fees and compensation to be paid by the City to BetterUp for providing the City with the BetterUp Services under this Agreement is set forth in Exhibit A (Order One). The total amount of compensation paid by the City to BetterUp under this Agreement shall not exceed $112,500, unless said total amount is modified by the Parties in writing. Except as otherwise specified herein or in Exhibit A, (i) fees are based on access rights acquired and not actual usage, (ii) payment obligations are noncancelable and non-refundable, and (iii) access rights purchased for the number of Users cannot be decreased during the relevant Subscription Term.
8.2 Invoicing and Payment. Subscription fees and all other compensation due hereunder shall be invoiced to the City in accordance with the amounts and payment schedule set forth in Exhibit A. All fees due hereunder (except fees subject to good faith dispute) shall be due and payable as set forth in Exhibit A. The City shall provide BetterUp with complete and accurate billing and contact information including valid email and mailing addresses. Upon receipt of an invoice from BetterUp, the City shall make payment on that invoice via electronic bank transfer.
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8.3 Taxes. BetterUp's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). The City is responsible for paying all applicable Taxes associated with its purchases hereunder. If BetterUp has the legal obligation to pay or collect Taxes for which the City is responsible under this Section, BetterUp will invoice the City and the City shall pay the invoiced amount unless the City provides BetterUp with a valid tax exemption certificate authorized by the appropriate taxing authority or applicable legal authority exempting the City from the invoiced tax liability.
9. Inspection of City Records. During the term of this Agreement and for one (1) year thereafter (but not more than once per calendar year), BetterUp, at its expense, may request that an audit and/or inspection be made of City records applicable to the use of, and performance of, services provided and required under this Agreement. BetterUp’s request under this Section shall be treated by City as a request for public records under the California Public Records Act (California Govt. Code § 6250 et seq.) If after review of the records produced in response to BetterUp’s request it discovers a discrepancy with City’s payment obligations under this Agreement, BetterUp shall summarize and present the discrepancy to the City for its review. If it reasonably appears that the City has underpaid for the services provided to it under this Agreement, the City shall pay BetterUp the full amount of the underpayment. Notwithstanding the foregoing, the City agrees that it will make its reasonably best effort to informally provide information related to this Agreement with BetterUp to the extent permitted by applicable law and to address operational issues that may arise during the course of this Agreement.
10.Trademarks. BetterUp’s name, BetterUp’s trademarks, BetterUp’s logos, and any other BetterUp product, service name, or slogan included in the Services are property of BetterUp and may not be copied, imitated, or used (in whole or in part) without BetterUp’s prior written consent. The look and feel of the Services, including all custom graphics, button icons, and scripts constitute service marks, trademarks, or trade dress of BetterUp and may not be copied, imitated, or used (in whole or in part) without BetterUp’s prior written consent. All other trademarks, registered trademarks, product names, and company names or logos mentioned in BetterUp Services or on the BetterUp Platform (“Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks inures to the benefit of each owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute an affiliation by BetterUp and its licensors with such company or an endorsement or approval by such company of BetterUp or its licensors or their respective products or services.
11.Confidentiality.
11.1 Definition of Confidential Information. As used herein, "Confidential Information" means 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. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent that it can be established by written documentation by the Receiving Party that such information: (i) is or becomes generally known to the public without breach of any obligation of confidentiality by the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party and who has a legal right to disclose such information; or (iv) was independently developed by the Receiving Party without the use of the Disclosing Party's Confidential Information. The Parties agree that, during the Term, including any extensions thereto, and for one (1) year thereafter, the Receiving Party shall keep confidential and shall not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written permission.
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11.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to handle, treat, store, access (or limit access), and otherwise protect (including with encryption, as applicable) the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care). The Receiving Party: (i) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of, or as permitted by, this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations to the Receiving Party consistent with this Agreement.
11.3. Compelled Disclosure. If the Receiving Party is required by law to disclose any portion of the Disclosing Party’s Confidential Information in response to a subpoena, court order, or other similar document, including a request under the California Public Records Act, Receiving Party shall give prior timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek a protective or similar order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential Information as is necessary to be disclosed in response to such subpoena, court order, or other similar document, including a request under the California Public Records Act.
11.4 Return or Destruction of Confidential Information. Upon written request, the Receiving Party shall return to the Disclosing Party, or shall destroy, all Confidential Information received by it from the Disclosing Party during the term of this Agreement except for digital backup copies created through automated system processes provided that such backup copies are protected as Confidential Information by the Receiving Party for as long as the information is retained.
11.5 Ownership of Confidential Information. The Receiving Party acknowledges that, except as otherwise provided herein, (a) the Disclosing Party is the exclusive owner of and has all rights to its Confidential Information, including all intellectual property rights therein, such as patents, copyrights, trade secrets, trademarks, moral rights and similar rights of any type under the laws of any governmental authority (collectively, “Intellectual Property Rights”); and (b) no right, title, interest or license to the Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of Confidential Information hereunder.
12.Term, Termination, and Effects of Termination. This Agreement commences upon the Effective Date and shall continue for a term of one (1) year (“Term”) unless terminated earlier by either Party in accordance with this Section. The pricing for each Subscription Term for the duration of the Term of this Agreement is set forth in Exhibit A. Either Party may terminate this Agreement (including all Orders) at any time, for cause, after providing the non-terminating Party with written notice of a material breach, and the non-terminating Party fails to cure said material breach of this Agreement or Order within 30 days of written notice. Upon the expiration or termination of this Agreement or of an Order, (a) BetterUp will cease providing the BetterUp Services under that Order, (b) the City and its Users will cease any access to the BetterUp Platform under such Order, except Users may contract individually with BetterUp for coaching separately from BetterUp’s client relationship with the City, and (c) City may retain and continue use of all BetterUp Analytics provided by BetterUp prior to the effective date of termination or expiration of this Agreement, except if BetterUp terminates this Agreement for cause. If this Agreement is terminated or has expired, and at least one Order remains in effect, then the terms of this Agreement shall continue to apply to any such Orders. Notwithstanding any terms or conditions to the contrary in this Agreement, and in addition to this sentence, Sections 5, 7, 8, 10, 11, 13, 14, and 15 survive any termination or expiration of this Agreement and no refunds will be issued.
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13.Representations and Warranties. Each Party represents and warrants that (a) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, (b) this Agreement is valid, binding and enforceable against it in accordance with its terms, and (c) it will fulfil its obligations under this Agreement in accordance with all applicable laws.
14.Disclaimer. EXCEPT AS SET FORTH IN SECTION 13, BETTERUP MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COACHING DOES NOT CONSTITUTE MEDICAL ADVICE OR THERAPY.
BETTERUP WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER
PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BETTERUP.
15.Limitation of Liability. EXCEPT FOR CITY’S BREACH OF THE RESTRICTIONS IN SECTION 5 OR OTHER MISAPPROPRIATION OF BETTERUP’S INTELLECTUAL PROPERTY, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND (B) EITHER PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY EXCEED THE AMOUNT ACTUALLY PAID BY THE CITY TO BETTERUP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE EVENT OCCURRED GIVING RISE TO THE CLAIM.
16.General Provisions.
16.1 Insurance. Prior to commencing any work or providing any services, BetterUp must procure, maintain, and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the BetterUp Services by BetterUp or its agents, representatives, employees or subconsultants for the duration of this Agreement. BetterUp must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit D (Insurance Requirements and Verifications).
16.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions.
16.3 Ownership. As between the Parties and subject to the grants expressly set forth in this Agreement, BetterUp owns all right, title and interest in and to the BetterUp Services and anonymous/aggregate data, feedback and any and all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights embodied in or related to the foregoing.
16.4 Publicity. BetterUp may disclose the fact that the City has procured a license to use the BetterUp Services and the BetterUp Platform. However, BetterUp shall not, without the City’s prior written approval, use the City’s name or any of the City’s trademarks, service marks or logos. Furthermore, BetterUp shall not make any public announcement of such fact or state or imply that City endorses or recommends the BetterUp Services or the BetterUp Platform without the prior written permission of City.
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16.5 Subcontractors. BetterUp may use the services of Third-Party coaches and other subcontractors and permit them to provide the BetterUp Services.
16.6 Third-Party Tools. The City acknowledges and agrees that Users may choose to utilize certain third-party videoconferencing, communications tools and other services used by Users in connection with BetterUp Services, e.g., Skype or FaceTime (“Third-Party Tools”). While user data provided to BetterUp through Third-Party Tools remains subject to the BetterUp User Terms, use of Third-Party Tools themselves is subject to the terms and conditions of the Third-Party Tool providers. BetterUp is not responsible for the operation of or any changes to the Third-Party Tools or the acts or omissions of ThirdParty Tool providers.
16.7 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated, by operation of law or otherwise, without the prior written consent of the non-assigning Party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the above, either Party may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement without the consent of the non-assigning party to an affiliate, as part of a change of control, or to a successor in interest to all or substantially all of its business or assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
16.8 Notices. Notices will be deemed given as of the day they are received by email, messenger, delivery service, or U.S. mail (postage prepaid, certified or registered, return receipt requested), and addressed as set forth below, or to such other address as the Party to receive the notice so designates by notice.
16.9 Waiver and Severability. A Party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the Parties’ intent with respect to such provision.
16.10 Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and SaaS Provider and approved as to form by the City Attorney. This Agreement is the product of negotiation and compromise between the parties. Accordingly, notwithstanding California Civil Code Section 1654, in the event of uncertainty, the language shall not be construed against the Party causing the uncertainty.
16.11 Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.
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By signing below, each Party acknowledges and agrees to be legally bound by the terms and conditions set forth in this BetterUp Enterprise Agreement.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ____________________________
RICK COLE
City Manager
#VENDOR
By: ____________________________
DocuSign Envelope ID: 4FCC304F-1A9A-4DAE-B726-202888301AA3 George S. Cardona
Interim City Attorney
6/26/2020 BetterUp, Inc.
Vinh Le
CFO
6/29/2020
Interim City Manager
Lane Dilg
6/30/2020
City Clerk
Denise Anderson-Warren
7/8/2020
BetterUp Enterprise Agreement Apr 2020 8
EXHIBIT A - ORDER ONE
This Order is subject to the terms and conditions contained in the BetterUp Enterprise Agreement by and between City of Santa Monica (“City”) and BetterUp, Inc. (“BetterUp”) (the “Agreement”), which is incorporated into this Order by this reference. In the event of any conflict between the Agreement and this Order, the Agreement shall prevail.
Description and Terms
Services BetterUp offers leadership, development, and performance coaching through a variety of behavioral techniques and methods on the BetterUp Platform.
This consists of one-on-one videoconferencing with BetterUp coaches on the BetterUp Platform and may also include other services such as access to ondemand coaching, extended network, assessment and performance tools, BetterUp Analytics, and other learning content. BetterUp provides the City with the right to access BetterUp Platform and to enable its Users with BetterUp Services during the Subscription Term.
Subscription The subscription provides the City with the rights to provide access during the Subscription Term with the following User limits:
Up to a total of 25 Concurrent Users. A Concurrent User is defined as the total number of individual Users who may, at a single point in time, schedule and receive unlimited thirty (30) minute one-to-one coaching sessions (typically one session per week) and full access to all BetterUp Platform features, as well as on-demand coaching and extended network.
For clarity, all access ceases on the Subscription Term end date (unless such term is renewed via separate order form).
Subscription Term Start Date: August 3, 2020
End Date: August 2, 2021
Total Subscription Fee BetterUp Premium Platform Plan: U.S. $112,500 for 1 year Payment Term City to follow invoice schedule below:
Payment # 1 – Due on September 2, 2020 - $28,125
Payment # 2 – Due on November 3, 2020 - $28,125
Payment # 3 – Due on February 3, 2021 - $28,125
Payment # 4 – Due on May 3, 2021 - $28,125
Total amount invoiced: U.S. $112,500.00
Additional Terms
1. Coaching Sessions and Users: Purchases of BetterUp Services are committed as of the Order Effective Date, regardless of whether accounts are activated by Users or coaching time is used. Coaching sessions/time cannot be banked or rolled over to renewals. City shall not be entitled to receive any refund or credit if the total Concurrent Users is fewer than specified above.
2. Payment: All invoices are due and payable within thirty (30) days of the invoice date. If City requires a purchase order (“PO”) as indicated below, City will promptly provide a PO to BetterUp (but City’s failure to provide a timely PO will not affect the payment timing in this Order).
3. City agrees and acknowledges that it has not relied on the future availability of any feature, functionality, or product.
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PO # Required on Invoice: ☐ Yes or ☐ No If yes, PO #: _______________ Billing Information
Billing Contact:
Billing Email:
Billing Address:
Billing Phone:
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EXHIBIT B
Uptime SLA
BetterUp shall use all reasonable commercial efforts, being no less than accepted industry standards, to ensure that BetterUp Services are available to Customer and Users 99% of the time in any calendar month (the "BetterUp Uptime SLA").
Definitions. The following definitions shall apply to the BetterUp Uptime SLA. ● "Downtime" means the period of time in which BetterUp Services are not accessible by Users. ● "Emergency Downtime" means those times where BetterUp becomes aware of a vulnerability which, based on a risk assessment of the vulnerability, BetterUp deems to require immediate remediation and, as a result, BetterUp Services are made temporarily unavailable in order for BetterUp to address the vulnerability. Emergency Downtime is not considered Downtime for purposes of this BetterUp Uptime SLA, and will not be counted towards any Downtime periods. ● "Monthly Uptime Percentage" means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime periods in the calendar month, divided by the total number of minutes in the calendar month. ● "Scheduled Downtime" means those times where BetterUp notifies the City or Users of periods of Downtime prior to the commencement of such Downtime. There will be no more than twelve (12) hours of Scheduled Downtime per calendar year. Scheduled Downtime is not considered Downtime for purposes of this BetterUp Uptime SLA, and will not be counted towards any Downtime periods.
● "Services" means the services provided to City or Users via the BetterUp website located at https://www.betterup.co/.
Right to terminate: In the event the Monthly Uptime Percentage is less than 99% three (3) times in a five (5) month period, the City will have a right to terminate the BetterUp Service order form, with a pro-rated refund of fees paid.
Uptime SLA Exclusions. The Uptime SLA does not apply to any performance issues: (i) caused by factors outside of BetterUp's reasonable control; (ii) that resulted from any actions or inactions of City or any third parties; (iii) that resulted from City’s or User’s equipment and/or third party equipment (not within the primary control of BetterUp), (iv) Emergency Downtime; or (v) Scheduled Downtime. This BetterUp Uptime SLA states City’s sole and exclusive remedy under the Agreement for any failure by BetterUp to provide the Services as a result of Downtime. Notwithstanding, the foregoing shall not be understood as a waiver of any rights or remedies the City may have in law or in equity.
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Exhibit C
Support
BetterUp will provide e-mail support twenty-four (24) hours a day, five (5) days a week for assistance in identifying and resolving Errors in accordance with the Severity Levels and Response Times set forth in this Exhibit D. BetterUp will be available to answer questions related to the operational use of the BetterUp Platform. Weekend support is available for Severity 1 issues.
1. Definitions
For purposes of this Exhibit D, the following definitions apply:
a. “Error” means a defect in the BetterUp Platform that prevents the BetterUp Platform from performing according to Agreement and the applicable Order. Errors include operation and functionality defects, security defects, viruses and bugs. b. “Initial Response” means a written or electronic response from BetterUp to City regarding a reported or discovered Error acknowledging receipt.
c. “Temporary Resolution” means a temporary fix or patch that BetterUp has implemented and incorporated into the BetterUp Platform to restore the BetterUp Platform functionality in accordance until the Final Resolution is available.
d. “Final Resolution” means a permanent fix that BetterUp has implemented and incorporated into BetterUp Platform to restore BetterUp Platform functionality.
2. General Support. BetterUp will provide support as set forth below:
BetterUp will provide all necessary resources to support troubleshooting and implementation of the BetterUp Platform.
3. Severity Levels
When BetterUp initially detects an Error with the BetterUp Platform, or when City reports to BetterUp an Error with the BetterUp Platform, the Error will be promptly classified by BetterUp in accordance with the following severity incident guidelines.
Severity Incident
Level
Definition
Severity 1
A critical problem with the BetterUp Platform in
which any of the following occur: the BetterUp
Platform is down, inoperable, inaccessible or
unavailable or the BetterUp Platform otherwise
materially cease operation.
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4. Incident Response Service Level
BetterUp will respond to City and provide Initial Responses, Temporary Resolutions and Final Resolutions in accordance with the time requirements set forth in the table below.
Severity 2
A problem with the BetterUp Platform in which
any of the following occur:
o the BetterUp Platform is severely limited or
degraded, major functions are not
performing properly; or
o The BetterUp Platform has been
interrupted but recovered, and in
BetterUp’s opinion there is high risk of
reoccurrence;
Severity
Level:
BetterUp’s Initial
Response will be
provided within:
BetterUp’s
Temporary
Resolution will be
provided within:
BetterUp’s Final
Resolution will be
provided within:
1 Two (2) hour from
receipt of initial
notice from City, or
other discovery, of
the Error
Eight (8) hours from
receipt of initial
notice from City, or
other discovery, of
the Error
Seven (7) days
from receipt of initial
notice from City, or
other discovery, of
the Error
2 Six (6) hours from
receipt of initial
notice from City, or
other discovery, of
the Error
Forty-eight (48)
hours from receipt
of initial notice from
City, or other
discovery, of the
Error
Fourteen (14) days
from receipt of initial
notice from City, or
other discovery, of
the Error
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Exhibit D
Insurance Requirements and Verifications
BetterUp shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by BetterUp, its agents, representatives, employees, or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Automobile liability insurance with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance.
If BetterUp maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to the broader coverage or higher limits maintained by BetterUp.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of BetterUp including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to BetterUp’s insurance.
b. Intentionally Omitted
c. Notice of Cancellation: BetterUp shall provide notice to the City of Santa Monica in the event there is a lapse in the coverage of the insurance requirements under this Agreement. d. Intentionally Omitted.
Self-Insured Retentions
DocuSign Envelope ID: 4FCC304F-1A9A-4DAE-B726-202888301AA3 BetterUp Enterprise Agreement Apr 2020 14
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require BetterUp to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the name insured or the City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M.
Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
BetterUp shall furnish the City of Santa Monica with certificates and amendatory endorsements. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive BetterUp’s obligation to provide them.
Failure to Maintain Insurance Coverage
If BetterUp, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from BetterUp resulting from said breach.
Subcontractors
BetterUp shall re maintain insurance covering all subcontractors. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if BetterUp does not have employees.
The BetterUp must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
DocuSign Envelope ID: 4FCC304F-1A9A-4DAE-B726-202888301AA3