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21-052 Bang the Table USA Inc, Technology Software-as-a-Service (SaaS) Agreement
Page 1 of 9 TECHNOLOGY SOFTWARE-AS-A-SERVICE (SaaS) AGREEMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND BANG THE TABLE USA LLC FOR SOFTWARE-AS-A-SERVICE THIS AGREEMENT (“Agreement”), by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and BANG THE TABLE USA LLC a Corporation whose address is P.O Box 1028, Boulder, CO 80306 ("Software Provider") (collectively referred to as the “Parties”). RECITALS: The following Recitals are a substantive portion of this Agreement: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California. B. Software Provider is specially trained, experienced, and competent to perform the special services which will be required by this Agreement. C. City and Software Provider desire to enter into an agreement for Software Provider’s provision of software-as-a-service (SaaS) pertaining to City’s online systems. Through this Agreement, Software Provider shall provide to City Bang the table, for Web Hosting relating to the City’s network. The full scope of services covered by this agreement is described in the attached Exhibit A: Service Level Agreement (the “SLA”). NOW, THEREFORE, the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on the last date signed below (“Effective Date”). The term of this Agreement is 1 Year, unless the Agreement is terminated prior thereto under the provisions of Section 16, below. The City’s appropriate department head or the City Manager may extend the Term through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 2. SCOPE OF SERVICES AND CONDITIONS THEREOF Subject to the terms and conditions set forth in this Agreement, Software Provider shall perform each and every service to the schedule of performance set forth in the SLA (collectively “Services”), as described below. 1. Responsibilities of Software Provider. Software Provider shall provide the software services as further described in the SLA. The Services provided under this Agreement shall include (a) any software, plug-ins, or extensions related to the Services or upon which the Services are based including any and all updates, upgrades, bug fixes, dot releases, version upgrades, or any similar changes that may be made available to the Software Provider from time to time (the “Software”), (b) any and all technical documentation necessary or use of the Services, in hard copy Page 2 of 9 form or online (the “Documentation”), (c) regular maintenance of Software Provider’s system, and (d) other technology, user interfaces, know-how, and other trade secrets, techniques, designs, inventions, data, images, text, content, APIs, and tools provided in conjunction with the Services. 2. Equipment. If necessary to enable Software Provider to fulfill its obligations under the SLA, Software Provider shall, at its sole cost and expense, furnish all facilities, personnel and equipment to City necessary to provide the Services (the “Equipment”). City agrees, if necessary, to install the Equipment at the location(s) and in the manner specified by Software Provider and as directed by Software Provider. Any Equipment installed by City is a part of the Service and loaned to City by Software Provider, not sold. City agrees to return the Equipment to Software Provider at the termination of this Agreement in an undamaged condition, less ordinary wear and tear. 3. Registration. Prior to using the Services, City shall identify the administrative users for its account (“Administrators”). Each Administrator will be provided an administrator ID and password. 4. License Grant. Software Provider hereby grants City a license to use the Software and the Documentation for the permitted purpose of accessing the Services. 5. Reservation of Rights and Data Ownership. City shall own all right, title, and interest in its data that is related to the services provided by this contract. Software Provider shall not access City user accounts or City data, except (1) as essential to fulfillment of the objectives of this Agreement, (2) in response to service or technical issues, or (3) at City’s written request. 6. Data Protection. In carrying out the Services, Software Provider shall endeavor to protect the confidentiality of all confidential, non-public City data (“City Data”) as follows: 1. Implement and maintain appropriate security measures to safeguard against unauthorized access, disclosure, or theft of City Data in accordance with recognized industry practice. 2. City Data shall be encrypted at rest and in transit with controlled access. Unless otherwise stipulated, Software Provider is responsible for encryption of the City Data. 3. Software Provider shall not use any City Data collected by it in connection with the Service for any purpose other than fulfilling the obligations under this Agreement. 7. Software Ownership. Software Provider owns the Services, Software, Documentation, and any underlying infrastructure provided by Service Provider in connection with this Agreement. City acknowledges and agrees that (a) the Services, any Software, and Documentation are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws, (b) Software Provider retains all right, title, and interest (including, without limitation, all patent, copyright, trade secret, and other intellectual property rights) in and to the Services, the Software, any Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, (c) the Software and access to the Services are licensed on a subscription basis, not sold, and City acquires no ownership or other Page 3 of 9 interest in or to the Services, the Software, or the Documentation other than the license rights expressly stated herein, and (d) the Services are offered as an on-line, hosted solution, and that City has no right to obtain a copy of the Services. 8. Restrictions. City agrees not to, directly or indirectly,: (i) modify, translate, copy, or create derivative works based on the Service or any element of the Software, (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein or block or disrupt any use or enjoyment of the Services by any third party, (iii) attempt to gain unauthorized access to the Services or their related systems or networks or (iv) remove or obscure any proprietary or other notice contained in the Services, including on any reports or data printed from the Services. 9. Security Incident. In the event a data breach occurs with respect to City Data, Software Provider shall immediately notify the appropriate City contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security incident. Software Provider shall (1) cooperate with City to investigate and resolve the data breach, (2) promptly implement necessary remedial measures, if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the services, if necessary. 10. Notification of Legal Requests. Software Provider shall contact City upon receipt of any electronic discovery, litigation holds, discovery searches, and expert testimonies related to City Data. Software Provider shall not respond to subpoenas, service of process, and other legal requests related to City without first notifying City, unless prohibited by law from providing such notice. 11. Access to Security Logs and Reports. Software Provider shall provide reports to City in a format as specified in the SLA agreed to by both Software Provider and City. Reports shall include latency statistics, user access, user access IP address, user access history, and security logs for all City files related to this Agreement. 12. Responsibilities and Uptime Guarantee. Software Provider shall be responsible for the acquisition and operation of all hardware, software, and network support related to the services being provided. The technical and professional activities required for establishing, managing and maintaining the environments are the responsibilities of Software Provider. The system shall be available for City’s use on a 24/7/365 basis (with agreed-upon maintenance downtime). 13. Subcontractor Disclosure. Software Provider shall identify all of its strategic business partners related to services provided under this Agreement, including all subcontractors or other entities or individuals who may be a party to a joint venture or similar agreement with Software Provider, and who shall be involved in any application development and/or operations. 14. Business Continuity and Disaster Recovery. Software Provider shall provide to City a written business continuity and disaster recovery plan prior to or at the time of execution of this agreement and shall ensure that it meets City’s recovery time objective (RTO) of four (4) hours or less. 15. Compliance with Accessibility Standards. Software Provider shall comply with and adhere to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101). Page 4 of 9 16. Web Services. Software Provider shall use Web services exclusively to interface with City Data in near real time when possible. 17. Encryption of Data at Rest. Software Provider shall ensure hard drive encryption consistent with validated cryptography standards as referenced in FIPS 140-2, Security Requirements for Cryptographic Modules for all personal data, unless City approves the storage of personal data on Software Provider’s portable device in order to accomplish work as defined in the statement of work. 3. COMPENSATION TO SOFTWARE PROVIDER Software Provider shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed ($4,500.00)dollars. The payments specified in this section shall be the only payments to be made to Software Provider for services rendered pursuant to this Agreement. Software Provider shall invoice City according to the following schedule of milestones/deliverables: Milestone/Deliverable Total Amount Upon contract execution 4,500 City shall pay Contractor within thirty (30) days after receipt of Service Provider’s invoice. City shall return to Contractor any payment request determined not to be a proper payment request as soon as practicable, but not later than seven (7) days after receipt, and shall explain in writing the reasons why the payment request is not proper. 4. TIME IS OF THE ESSENCE Software Provider and City agree that time is of the essence regarding the performance of this Agreement. 5. LICENSES; PERMITS; ETC. Software Provider represents and warrants to City that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required to carry out the purposes of this Agreement. 6. ASSIGNMENTS. Software Provider may assign, sublease, or transfer this Agreement, or any interest therein, to a third party with the prior written co nsent of City. Such consent shall not be unreasonably withheld. City’s withholding of consent shall be deemed reasonable if it appears that the intended assignee in question is not financially or technically capable of performing Software Provider’s obligations under this Agreement, or if City has reason to conclude that the proposed assignee is otherwise incapable of fulfilling Software Provider’s duties hereunder. 7. INDEPENDENT PARTIES City and Software Provider intend that the relationship between them created by this Agreement is that of independent contractor. No civil service status or other Page 5 of 9 right of employment will be acquired by virtue of Software Provider's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation, and sick leave are available from City to Software Provider, its employees, or agents. Software Provider is not a "public official" for purposes of Government Code §§ 87200 et seq. 8. IMMIGRATION REFORM AND CONTROL ACT (IRCA) Software Provider assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal or state rules and regulations. Software Provider shall indemnify and hold City harmless from and against any loss, damage, liability, costs, or expenses arising from any noncompliance of thi s provision by Software Provider. 9. NON-DISCRIMINATION Consistent with City's policy prohibiting harassment and discrimination, Software Provider agrees that neither it nor its employee or subcontractors shall harass or discriminate against a job applicant, a City employee, or a citizen on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, sexual orientation, or any other protected class status. Software Provider agrees that any and all violations of this provision shall constitute a material breach of this Agreement. Software provider agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 10. INTELLECTUAL PROPERTY INDEMNIFICATION Software Provider agrees to, at its expense, defend and/or settle any claim made by a third party against City alleging that the City's use of the Services infringes such third party’s United States patent, copyright, trademark, or trade secret (an “IP Claim”), and pay those amounts finally awarded by a court of competent jurisdiction against City with respect to such IP Claim. 11. DUTY TO INDEMNIFY AND HOLD HARMLESS Software Provider shall indemnify, defend, and hold harmless City and its officers, officials, agents, employees, and volunteers from and against any and all liability, claims, actions, causes of action, or demands whatsoever against any of them, including for any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential, or otherwise, arising out of, pertaining to, or related to the performance of this Agreement by Software Provider or Software Provider’s employees, officers, officials, agents, or subcontractors, except where such liability arises solely as a result of the active negligence or willful misconduct of City. Such costs and expenses shall include reasonable attorneys’ fees of counsel of City’s choice, expert fees, and all other costs and fees of litigation. Provider agrees to obtain executed indemnity agreements with provisions identical Page 6 of 9 to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. The provisions of this Section 11 survive the completion of the Services or termination of this Agreement. 12. INSURANCE: A. General Requirements. On or before the commencement of the term of this Agreement, Software Provider shall furnish City with certificates showing the type, amount, class of operations covered, effective dates, and dates of expiration of insurance coverage in compliance with the requirements listed in Exhibit B. Software Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement. B. Subrogation Waiver. Software Provider agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Software Provider shall look solely to its insurance for recovery. Software Provider hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Software Provider or City with respect to the services of Software Provider herein, a waiver of any right to subrogation which any such insurer of said Software Provider may acquire against City by virtue of the payment of any loss under such insurance. 13. RECORDS Software Provider shall maintain internal records reflecting that the Services were performed by Software Provider hereunder in accordance with customary recordkeeping practices in the software development industry. Software Provider shall provide free access to such records to the representatives of City or its designee’s at all reasonable and proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary. No such examination and audit shall give City the right to access records relating to other Software Provider customers. The City shall receive instructions to download and maintain its data upon termination of Services, and must do so within 60 days. 14. NONAPPROPRIATION This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code, and this Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. Page 7 of 9 15. NOTICES All notices, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Bill Mitchell TO SOFTWARE PROVIDER: Bang the Table USA LLC P.O Box 1028 Boulder, CO 80306 Attention: Michelle Stephens 16. TERMINATION A. Basis for Termination. In the event Software Provider fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Software Provider shall be deemed in default in the performance of this Agreement. If Software Provider fails to cure the default within the time specified and according to the requirements set forth in City’s written notice of default, and in addition to any other remedy available to the City by law, the City Manager or her designee may terminate the Agreement by giving Software Provider written notice thereof, which shall be effective immediately. The City Manager or her designee shall also have the option, at her sole discretion and without cause, of terminating this Agreement by giving seven (7) calendar days' prior written notice to Software Provider as provided herein. Upon receipt of any notice of termination, Software Provider shall immediately discontinue performance. B. Pro Rata Payments. City shall pay Software Provider for services satisfactorily performed up to the effective date of termination. In such event, a calculation of the amounts due shall be deemed correct as computed on a pro rata basis with compensation provided for the period of service paid as a percentage of the total contract amount. C. Handling of City Data. In the event of a termination of this Agreement, Software Provider shall implement an orderly return of City data in a CSV or another mutually agreeable format at a time agreed to by the parties and the subsequent secure disposal of City data. During any period of service suspension, Software Provider shall not take any action to intentionally erase any City data for a period of thirty (30) days after the effective date of termination, unless authorized by City. City shall be entitled to any post-termination assistance generally made available with respect to the Services; unless a unique data retrieval arrangement has been established as part of the SLA. Software Provider shall securely dispose of all requested data in all of its forms, including disk, CD/DVD, backup tape, and Page 8 of 9 paper, when requested by City. Data shall be permanently deleted and shall not be recoverable, according to National Institute of Standards and Technology (NIST)- approved methods. Certificates of destruction shall be provided to City. 17. WARRANTY AND WARRANTY DISCLAIMER Software Provider warrants that, (i) the Services shall be provided in a diligent, professional, and workmanlike manner in accordance with industry standards, (ii) the Services provided under this Agreement do not infringe or misappropriate any intellectual property rights of any third party, and (iii) the Services shall substantially perform in all material respects as described in the SLA. In the event of any breach of section (iii), above, Software Provider shall, as its sole liability and as City’s sole remedy, repair or replace the Services that are subject to the warranty claim at no cost to City, or if Software Provider is unable to repair or replace, then it will refund any pre-paid fees for services not rendered. Except for the warranty described in this section, the Services are provided without warranty of any kind, express or implied, including, but not limited to, the implied warranties or conditions of design, merchantability, fitness for a particular purpose, and any warranties of title and non-infringement. 18. COMPLIANCE Software Provider shall comply with all state or federal laws and all ordinances, rules, policies, and regulations enacted or issued by City. 19. CONFLICT OF LAW This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any suits brought pursuant to this Agreement shall be filed with the Superior Court for the County of Santa Clara, State of California. 20. ADVERTISEMENT Software Provider shall not post, exhibit, or display, or allow to be posted, exhibited, or displayed, any signs, advertising, show bills, lithographs, posters, or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, 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 modification of this Agreement will be effective only by written execution signed by both City and Software Provider. In the event that any Service Level Agreement, Exhibit, associated instrument, or agreement executed by the Parties in conjunction with this Agreement or prior thereto contains a term that conflicts with the terms of this Agreement, the terms of this Agreement shall govern and supersede any other document or Exhibit. Page 9 of 9 22. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed. CITY OF CUPERTINO A Municipal Corporation By ___________________ Title ___________________ Date __________________ APPROVED AS TO FORM: _________________________ City Attorney Heather M. Minner ATTEST: __________________________ City Clerk SOFTWARE PROVIDER Bang the Table USA LLC By ___________________ Title ___________________ Date __________________ Contracts & Invoicing Specialist May 5, 2021 Heather M. Minner May 10, 2021 CTO Kirsten Squarcia May 10, 2021 Service Level Agreement Name of Customer City of Cupertino, California Customer Address Torre Avenue Cupertino California 95014 Customer Phone 408‐777‐1333 Primary Contact Bill Mitchell billm@cupertino.org Contract Contact Marilyn Monreal marilynm@cupertino.org Term See SaaS Master Agreement Service Details Site Build Onboarding Deliverables ●EngagementHQ 6‐Month Trial Unlimited license ●Project Finder ●30 mins kick off meeting ● 90 min site scoping session ● Site build up to 5 projects on receipt of approved content (includes site settings, homepage mapping and all tool setup), ● 2 x 90 mins online accelerators for platform training, regular progress check‐ins, access to help desk resources, accessibility audit, pre‐launch quality assurance and testing Trial Essentials EngagementIQ Support Package ●Up to 10 Hours of strategic advice ●Up to 1 x 60 min instructor-led online refresher training ●24/7 Moderation in English & French o Spanish Moderation 8 a.m. ‐ 5 pm. MST ●Customer Experience support commitment of: o 24/5 chat & email support o 15 min first response chat o 2 hr first response email o 24/7 self‐service knowledge base Helpdesk access Total Fees See SaaS Master Agreement EngagementHQ Package Annual License ‐ Trial EngagementIQ Package Essentials Additional Services & Integrations Site Build Onboarding; Project Finder Integrations require the cooperation of third parties. We enter into a contract to provide integrations on the basis of ‘best endeavors’ if, for reasons beyond our control, an integration ceases to work we will refund pro rata the integration portion of the contract. This has no impact on the software package and service components of the contract. The Master Terms and Conditions set forth below (the "Terms”, and together with this Service Agreement, collectively, the “Agreement”) are a binding agreement between you ("you" “or “Customer”) and Bang the Table, (“BTT”, "us" or "we") governing your use of the Services ordered above. The Terms are hereby incorporated into this Service Agreement. By signing below, each party agrees to comply with the terms and conditions set forth in this Service Agreement and in the Terms. Master Terms and Conditions These master terms and conditions (the "Terms”), and together with your Service Agreement (“Service Agreement”), and any attached Proposal are a binding agreement (the “Agreement”) between you ("you" or “Customer”) and Bang The Table, (“BTT”, "us" or "we") governing your use of the services ordered on your Service Agreement (the “Services”) This Agreement is effective as of the date you entered into your Service Agreement (“Effective Date”). 1 Access Grant & Restrictions 1.1 Subscription to the Service. Subject to the terms of this Agreement, BTT hereby grants to the Customer a limited, non‐sublicensable, non‐transferable, non‐exclusive subscription during the term of the Service Agreement for the Customer to access and use the specific services and feature sets of the Service specified in the applicable Service Agreement by up to the number of users identified in that Service Agreement, and solely for the Customer’s business purposes as outlined on the Service Agreement and these Terms. BTT and its licensors reserve all rights not expressly granted to the Customer in this EXHIBIT A - SLA pg. 2 Agreement. BTT upgrades its software on a continuous basis and, while we strive to minimize the impact on the customer of any upgrades (our policy is not to change the public facing appearance of your site without your permission), BTT reserves the right to make necessary changes or modifications to the Service. 2 Customer Responsibilities. The Customer is responsible for ensuring the compliance with these terms of each of the Customer’s authorized users (“Administrators”) and is liable for all activity under the Customer’s Administrator accounts. The Customer shall use best efforts to prevent unauthorized access to, or use of, the Service, and will notify BTT promptly of any unauthorized use of any password or account or any other known or suspected breach of security. The Customer will not attempt to or use the Customer’s access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein. The Customer shall not allow Administrator credentials to be shared. You must ensure that we receive, in a timely manner, all information we need to enable us to supply the Services. 3 Support; Hosting. BTT will host the Website as set forth in the Service Agreement and applicable Proposal document. BTT will, where practicable, answer questions and help troubleshoot. To the extent set forth on the Service Agreement, BTT will also provide hosting and support services as set forth in Proposal, attached hereto, which is hereby incorporated hereto. 4 Termination. Customer may terminate this Agreement upon at least thirty (30) days written notice to BTT for any or no reason. BTT will not terminate this Agreement (but may non‐renew as outlined in the Service Agreement) except where Customer has breached this Agreement and such failure continues for thirty (30) days after Customer receives written notice of same. Upon the termination of this Agreement for any reason: (a) any amounts owed to BTT by the Customer under this Agreement before such termination will become immediately due and payable, (b) Customer will cease using the Service and Website; and (c) BTT will shut down the Website. The rights and duties of the parties that are designed to survive termination or expiration will survive. 5 Acknowledgments. Each party acknowledges and agrees that it has the legal power and authority to enter into this Agreement. The Customer acknowledges and agrees that: (a) Customer shall abide by all applicable laws and regulations in connection with the Customer’s business operations and the use of the Service, Website, and Website Visitor information, and (b) Customer owns or has obtained all rights, consents, permissions, or licenses necessary to allow the Service access to, or possession, manipulation, pr ocessing, or use of the Customer’s Data and any data from Website Visitors; and (c) the Customer shall ensure that its collection, use, and sharing of information (including data from Website Visitors) is in accordance with applicable law, and its privacy policy; and (d) Customer owns or has sufficient rights to any Customer content displayed on the Website. Should you wish to change the terms of use on the Website you can do so but (as these terms are between BTT and the website visitors) in so doing you accept all responsibility for any content provided by users and website visitors. 6 Disclaimer of Warranties. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, BTT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO ANY CONTENT (INCLUDING ANY CONTENT FROM WEBSITE VISITORS), THE SERVICE, OR WEBSITE. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY DISCLAIMED. 7 Ownership. BTT and its licensors own all rights, title and interest, including all related intellectual property rights, in and to the Services, BTT content, platform, and technology, including all enhancements, modifications or derivative works to the foregoing, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Services. The BTT name, the BTT logo, and the product names associated with the Services are trademarks of BTT or third parties. All rights not expressly granted are hereby retained by BTT. BTT does not own the information submitted by Customer or its Website Visitors (the “Customer’s Data”). The Customer retains all right, title and interest in and to the Customer’s Data. The Customer grants to BTT all necessary licenses and rights in and to the Customer’s Data as necessary for BTT to provide Services to the Customer. The Customer is responsible for the Customer’s Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any intellectual property rights ownership or right to use the foregoing. BTT reserves the right to de‐identify or aggregate (or both) any data (including Customer Data), information or content obtained by BTT relating to Customer, its Administrator’s, or Website Visitors use or receipt of Services, including without limitation information about how the Services are used by such users (“De‐identified Data”). BTT may use De‐identified Data for product optimization and development, benchmarking, and internal research but will not share any information that identifies Customer or any Website Visitor by name with any third party, except as strictly necessary to provide the Services. 8 Responsibility. If any action is instituted by a third party against the Customer based upon a claim that the Service, as provided, infringes a copyright or trademark, then BTT will defend such action at its own expense on behalf of the Customer and will pay all damages attributable to such claim which are finally awarded against the Customer or paid in settlement of such claim. BTT may, at its option and expense, and in addition to defending the Customer as set forth in the previous sentence, as the Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and the Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then‐current term of this Agreement. BTT will have no liability to the Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by the Customer or of the use of the Service (i) after it has been modified by the Customer or a third party without BTT’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by BTT where the combination is the basis for the infringing activity. THIS PARAGRAPH SETS FORTH THE ENTIRE OBLIGATION OF BTT AND THE CUSTOMER’S EXCLUSIVE REMEDY AGAINST BTT OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM. 9 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND, OR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BTT’S CUMULATIVE LIABILITY FOR ANY CLAIM, LOSS, ACTION, FEE, OR DAMAGE OR ANY OTHER DISPUTED UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO BTT IN THE 12 MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY INSURANCE PROCEEDS OTHERWISE PAYABLE TO BTT OR CUSTOMER AS ADDITIONAL INSURED UNDER THE INSURANCE COVERAGES DESCRIBED IN EXHIBIT B. pg. 3 10 Confidentiality. Neither party will use the confidential information of the other party for any purpose other than exercising its rights or obligations under this Agreement, and will disclose the confidential information only to those of its employees or contractors who have a need to know for purposes of the Agreement. Notwithstanding, either party may disclose the other party’s confidential information as required by law so long as, if permitted by law, such party notifies the disclosing party prior to disclosure and uses reasonable efforts to limit disclosure to only what is required by law. 11 General Terms. This Agreement may not be assigned by the parties without the prior written approval of the other party, although BTT may use subcontractors so long as it remains responsible for such subcontractors. Any purported assignment in violation of this section shall be void. BTT shall not be liable for any failure by it to perform its obligations under this Agreement because of circumstances beyond the reasonable control of BTT. No text or information set forth on any other purchase order, preprinted form or document (other than an associated BTT quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between the Customer and BTT. The failure of BTT to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by BTT in writing. These Terms, together with any associated Service Agreement, Proposal, or invoice, comprises the entire Agreement between the Customer and BTT and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. 1369046.1 Contract No. ________ Exhibit B: Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit, with City named as additional insured. 1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES Additional Insureds: The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s Commercial General Liability and Cyber Liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage: Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self - insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Software Provider’s insurance and shall not contribute to it. Notice of Cancellation: Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Software Provider, its employees, agents, and subconsultants. General Liability: For bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Software Provider’s policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13). Contract No. ________ c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Agreement. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. Automobile Liability ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. Cyber Liability: Insurance, with limits not less than: $2,000,000 each occurrence $2,000,000 aggregate - all other Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Software Provider 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, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. If the Software Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Software Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 2. ABSENCE OF INSURANCE COVERAGE. City ma y direct Software Provider to immediately cease all activities with respect to this Agreement if it determines that Software Provider fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Agreement. At the City’s discretion, under conditions of lapse, Cit y may purchase appropriate insurance and charge all costs related to such policy to Software Provider. 3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION. A Certificate of Insurance, on an Accord form, and completed coverage verification shall be provided to City by each of Software Provider's insurance companies as evidence of the stipulated coverages prior to the C ommencement Date of this Agreement , and annually thereafter for th e term of this Agreement. All of the insurance companies providing insurance for Software Provider shall be licensed to do insurance business in the State of California and shall have, and provide evidence of, a Best Rating Service rate of A:VII or above. Contract No. ________ 4. SUBCONTRACTORS Software Provider shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. 5. HIGHER INSURANCE LIMITS If Software Provider maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Software Provider. 6. ADEQUACY OF COVERAGE City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 2/26/2021 19070 Bang The Table USA, LLC 2400 Spruce Street, Suite 204 Boulder, CO 80302 A X UB1N332448 6/15/2020 6/15/2021 1,000,000 1,000,000 1,000,000 Waiver of Subrogation is granted in favor of the certificate holder with regards to the workers compensation policy. The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers 10300 Torre Ave. Cupertino, CA 95014 BANGTHE-01 TONEIL AP Intego Insurance Group, LLC 1601 Trapelo Rd Suite 280 Waltham, MA 02451 support@apintego.com The Standard Fire Insurance Company X ENDORSEMENT WC 00 03 13 (00) - POLICY NUMBER: EMPLOYERS LIABILITY POLICY AND WORKERS COMPENSATION WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 001 ONE TOWER SQUAREHARTFORD CT 06183 UB-1N332448-20-42-G We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED ORGANIZATION: DESIGNATED PERSON: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. DATE OF ISSUE:PAGEST ASSIGN:OF04-21-20 1 1 Signature: Email:kirstens@cupertino.org Bang the table, for Web Hosting Final Audit Report 2021-05-10 Created:2021-05-05 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAALHyzEuoNXmDwDjdWlbMCzviqPQ1dxg3D "Bang the table, for Web Hosting" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-05-05 - 11:23:11 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-05-05 - 11:27:51 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-05-05 - 11:31:58 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Michelle Stephens (michelle@bangthetable.com) for approval 2021-05-05 - 11:32:00 PM GMT Email viewed by Michelle Stephens (michelle@bangthetable.com) 2021-05-06 - 0:08:51 AM GMT- IP address: 74.125.212.10 Document approved by Michelle Stephens (michelle@bangthetable.com) Approval Date: 2021-05-06 - 2:52:04 AM GMT - Time Source: server- IP address: 76.120.36.175 Document emailed to Jaime Holloway (jaime@bangthetable.com) for signature 2021-05-06 - 2:52:07 AM GMT Email viewed by Jaime Holloway (jaime@bangthetable.com) 2021-05-06 - 3:24:25 AM GMT- IP address: 74.125.212.12 Document e-signed by Jaime Holloway (jaime@bangthetable.com) Signature Date: 2021-05-06 - 3:29:19 AM GMT - Time Source: server- IP address: 98.38.247.68 Document emailed to Heather M. Minner (minner@smwlaw.com) for signature 2021-05-06 - 3:29:22 AM GMT Email viewed by Heather M. Minner (minner@smwlaw.com) 2021-05-10 - 4:18:15 PM GMT- IP address: 104.143.198.230 Document e-signed by Heather M. Minner (minner@smwlaw.com) Signature Date: 2021-05-10 - 4:18:50 PM GMT - Time Source: server- IP address: 52.39.49.65 Document emailed to Bill Mitchell (billm@cupertino.org) for signature 2021-05-10 - 4:18:53 PM GMT Email viewed by Bill Mitchell (billm@cupertino.org) 2021-05-10 - 4:24:34 PM GMT- IP address: 104.47.74.126 Document e-signed by Bill Mitchell (billm@cupertino.org) Signature Date: 2021-05-10 - 4:25:25 PM GMT - Time Source: server- IP address: 73.63.186.99 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-05-10 - 4:25:27 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-05-10 - 4:25:45 PM GMT- IP address: 69.110.137.176 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-05-10 - 4:44:43 PM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2021-05-10 - 4:44:43 PM GMT