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WELLBEATS, INC - CONTRACT - AGREEMENT MISC - WELLBEATS INC (2)
Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 1 of 18 SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and WELLBEATS, INC., hereinafter referred to as "Service Provider". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit A, consisting of three (3) pages and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence July 15, 2022, and shall continue in full force and effect until July 14, 2023, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties only at the time of renewal. Written notice of renewal shall be provided to the Service Provider and mailed no later than thirty (30) days prior to contract end. 3. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within ten (10) days from the onset of such condition. 4. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be delivered at least ten (10) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective immediately when emailed or three business days from the date of the notice when mailed to the following addresses: Service Provider: City: Copy to: Wellbeats, Inc. Attn: Legal 1660 S. Highway 100, Ste 590 St. Louis Park, MN 55416 legal@wellbeats.com City of Fort Collins Attn: Lynn Sanchez PO Box 580 Fort Collins, CO 80522 lsanchez@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 2 of 18 In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Service Provider shall submit a final invoice within ten (10) days of the effective date of termination. Undisputed invoices shall be paid Net 30 days of the date of the invoice. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Compensation. The City shall pay the Service Provider for the performance of this Contract, subject to additions and deletions provided herein, Twenty-seven Thousand Five Hundred Dollars ($27,500) as per the attached Exhibit B, consisting of one (1) page, and incorporated herein by this reference. Invoices shall be emailed to invoices@fcgov.com with a copy to the Project Manager. The cost of the work completed shall be paid to the Service Provider following the submittal of a correct itemized invoice by the Service Provider. The City is exempt from sales and use tax. The City’s Certificate of Exemption license number is 09804502. A copy of the license is available upon written request. The City pays invoices on Net 30 days from the date of the invoice. 6. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple fiscal year debt or financial obligation of the City, it shall be subject to annual appropriation by City Council as required in Article V, Section 8(b) of the City Charter, City Code Section 8 -186, and Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to continue this Agreement in any fiscal year for which no such supporting appropriation has been made. 7. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the City Representative. 8. Independent Service Provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 9. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit A, Statement of Work without the prior written consent of the City, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor must be a reputable, qualified firm with an established record of successful performance in its respective trade performing identical or substantially similar work, (b) the subcontractor will be required to comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor will it obligate the DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 3 of 18 City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Service Provider. Irrespective of any subcontractors named in Exhibit A, Service Provider shall be solely responsible for performance of all duties hereunder. 10. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. 11. Acceptance Not W aiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 12. Warranty. a. Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. 13. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default thereof. 14. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail themselves of any other remedy at law or equity. If the non-defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 15. Entire Agreement; Binding Effect; Order of Precedence; Authority to Execute. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties regarding this transaction and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. In the event of a conflict between terms of the Agreement and any exhibit or attachment, the terms of the Agreement shall prevail. Each person executing this Agreement affirms that they have the necessary authority to sign on behalf of their respective party and to bind such party to the terms of this Agreement. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 4 of 18 16. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit C, consisting of one (1) page(s), attached hereto, and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Purchasing Director, purchasing@fcgov.com or P. O. Box 580, Fort Collins, Colorado 80522, one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 17. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution, and enforcement of this Agreement. The Parties further agree that Larimer County District Court is the proper venue for all disputes. If the City subsequently agrees in writing that the matter may be heard in federal court, venue will be in Denver District Court. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18. Prohibition Against Unlawful Discrimination. The City, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the Regulations, affirmatively ensures that for all contracts entered into with the City, disadvantaged business enterprises are afforded a full and fair opportunity to bid on the contract and are not to be discriminated against on the grounds of race, color, or national origin in consideration for an award. The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age 40 years or older, marital status, disability, sexual orientation, genetic information, or other characteristics protected by law. For the purpose of this policy “sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality. The City also strictly prohibits unlawful harassment in the workplace, including sexual harassment. Further, the City strictly prohibits unlawful retaliation against a person who engages in protected activity. Protected activity includes an employee complaining that he or she has been discriminated against in violation of the above policy or participating in an employment discrimination proceeding. The City requires its vendors to comply with the City’s policy for equal employment opportunity DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 5 of 18 and to prohibit unlawful discrimination, harassment and retaliation. This requirement applies to all third-party vendors and their subcontractors at every tier. 19. Governmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the notices, requirements, immunities, rights, benefits, protections, limitations of liability, and other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law. 20. Colorado Open Records Act. The City is subject to Sec. 24-72-201 et seq. of the Colorado Revised Statute (CORA). This Agreement is subject to public disclosure in whole pursuant to CORA. 21. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit D - Confidentiality, consisting of one (1) page; and Exhibit E – Additional Applicable Terms & Conditions, consisting of six (6) pages, attached hereto, and incorporated herein by this reference. [Signature Page Follows] DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 6 of 18 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul, Purchasing Director Date: ATTEST: APPROVED AS TO FORM: WELLBEATS, INC. By: Printed: Title: Date: DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 7/11/2022 Tom Funk Chief Security & Services Officer Assistant City Attorney 7/22/2022 City Clerk Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 7 of 18 EXHIBIT A SCOPE OF SERVICES The City is engaging the Service Provider to provide a virtual wellness platform, which will included but is not limited to fitness, nutrition and mindfulness classes. Service Provider offers high quality content, credentialed instructors and top-tier business compliance, security and strategic client support. The Service Provider will utilize a HTML 5 web portal and app technology, automated in-app messages and turnkey marketing communications in providing these services. Virtual Platform Reliable, easy to use, high-quality video streaming Accessible through industry-leading technology with mobile apps (iOS, Android, Windows, apple TB, Chromecast, Airplay, Roku) or HTML 5 website portal. Recommendation engine personalizes and curates content based on user interests and behaviors. Customizable programs promote goal setting, progress tracking and engagement. Social community feature enables members to schedule a class, view their schedule, add to their calendar, send reminders and invite others to join. Platform adheres to key compliance and security regulatory standards including HIPAA, SOC2, GDPR, AND WCAG 2.1. Streaming Content & Programming Broad variety of 1,000+ fitness, nutrition, and mindfulness classes for all ages, interests, and ability levels. Diverse team of 60+ authentic, approachable and credentialed experts. High-quality production to promote safe, consistent and family-friendly content. Goal-based menu of 35+ programs available to help members stay on track and meet their goals. Corporate Programs Customization – Creating a schedule of classes that fits your population’s demographics, personal preferences, and company initiatives. Non-Wellbeats activities (e.g., go to bed 1 hour earlier, spend at least 20 minutes outside, take 7,000 steps, eat lunch with a coworker) can also be included. Community – Rallying a community of members together to achieve a common goal. Reliability – Providing a set schedule of workouts, taking the guesswork out of exercising – especially during busy seasons. Accountability – Giving members an easy way to track their workouts and progress. Seasonality – Setting a specific start and end date to create a sense of urgency and encourage members to act. Service Provider offers more than 35 multi-week programs which include, but is not limited to, DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 8 of 18 the following themes: Build Strength – 6 weeks Family Fitness Fun – 6 weeks Create Your Calm – 2 weeks Find your Fit – 4 weeks Nourish Your Day – 2 weeks Daily Mobility – 3 weeks Additionally, the Service Provider offers the “Create a Program” tool which allows the City to promote an existing program to its members and/or create its own customized programs. Social Community Feature Service Provider’s invite-a-friend social community features enable members to schedule classes and invite coworkers to join them, helping them feel more engaged and connected with other members. Members can also view their schedule, add to a calendar, set up reminders, and chat with members before, during and after class. Onsite Streaming Service Provider offers commercial onsite licenses to enable streaming in shared environments such as corporate fitness centers or conference rooms. The facility is provided an activation code enabling permanent login in guest mode via the facility’s TV and Windows 10 device. Individual users do not need to log in separately. Client Success & Reporting Marketing Support Service Provider’s marketing team provides a comprehensive library of customizable communication materials and marketing resources available for prelaunch, launch, and post- launch success. Resources include: Email templates, banners and copy Posters and flyers to display in onsite fitness facilities or throughout your company Digital displays to promote online Monthly marketing campaigns to promote a wide variety of wellness topics and trends and drive sustained engagement year-round. Logo files in multiple image formats to customize promotional materials Video tutorials on how to navigate the Wellbeats system and create a class schedule Client Services & Member Support Service Provider’s Client Success team is ready to help every step of the way. The team will guide you starting at implementation, launch and ongoing with your Wellbeats strategy. They will be the City’s source of expertise to help the City make the most of it’s Wellbeats benefits using Service Provider’s best practices for engagement. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 9 of 18 The Implementation Managers serves as a single point of contact for implementation. This includes a scheduled kick off meeting to review the following items: Eligibility file specifications and file upload process Customize and co-brand welcome email campaign Safelisiting instructions Review of the City’s marketing resources Following implementation, the Client Services Team will support the City with: Post launch and ongoing training including challenge features, administration tools, and monthly campaign promotion. Toolkits to support your ongoing promotion of Wellbeats. Toolkits include: Launch, Administrator, Welcome to Wellbeats, Programs, Open Enrollment and Benefits, Incentive Program, and Virtual Group toolkits How-to guides to provide as resources to members Annual program planning meeting for subsequent plan years Client Service Manager and Member Support teams are available as needed via email and telephone. Monthly client newsletter with product updates and best practices Bimonthly client success webinar to share best practices and client case studies Annual relaunch campaign to promote Wellbeats access to employees Reporting Each month the City will receive a report outlining the key metrics of the City’s Wellbeats program and its engagement. With this data, you will have the insights needed to connect Wellbeats directly to the City’s wellness strategy including key goals and incentives. Monthly report available for aggregate participation data Incentive reporting available upon request City funds/fulfills actual incentive (e.g., distribution of rewards to members) Custom Channel A custom channel allows the City to leverage the power of the Wellbeats platform to reach its employees with content specific to your organization and delivered through a custom channel. Content will only be visible to City employees. The City may add on a custom channel for an additional fee. Load up to 20 class videos initially and 5 additional class videos per month Customize with your own class descriptions, metatags and class image DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 10 of 18 EXHIBIT B BID SCHEDULE/COMPENSATION The following pricing shall remain fixed for the initial term of this Agreement. Any applicable price adjustments may only be negotiated and agreed to in writing at the time of renewal. Base Products and Services (as detailed above) Product Type Included in order Estimated # Eligible Base Fee (one-time or recurring fee) Implementation Fee (one-time fee) 1,000 – 4,999 $500 one-time Wellbeats Member Streaming Base Products & Services Member Portal and apps Class Content and Programs Marketing Support Client Services and Support Reporting 2,500 U.S. Based Employees $0.90 per employee per month - Global Employees $1.13 per employee per month - Spouses/Adult Dependents $0.45 per eligible per month Optional Products and Services Custom Channel - Up to 20 classes on initial load and 5 additional classes per month can be added $1000 per channel per month Custom Incentive File Integration - Wellbeats custom incentive file integration to outside non-partner vendor $1000 pe file set up Total Annual Estimate for 2,500 Employees $27,500.00 DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 11 of 18 EXHIBIT C INSURANCE REQUIREMENTS The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. Insurance certificates should show the certificate holder as follows: City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 The City, its officers, agents and employees shall be named as additional insureds on the Service Provider 's general liability insurance policy by marking the appropriate box or adding a statement to this effect on the certificate, for any claims arising out of work performed under this Agreement. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement. Workers' Compensation & Employer’s Liability insurance shall conform with statutory limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee, or as required by Colorado law. B. General Liability. The Service Provider shall maintain during the life of this Agreement such General Liability as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for General Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. C. Cybersecurity. The Service Provider shall maintain during the life of this Agreement cybersecurity coverage which shall not be less than $1,000,000. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 12 of 18 EXHIBIT D CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to this Agreement (the “Agreement”), the Service Provider hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as “information”) that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Service Provider has agreed to perform, the Service Provider hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Service Provider agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City). The Service Provider shall not disclose any such information to any person not having a legitimate need-to-know for purposes authorized by the City. Further, the Service Provider shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Service Provider understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Service Provider shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Service Provider ceases to perform services for the City, or the City so requests for any reason, the Service Provider shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Service Provider understands and agrees that the City’s remedies at law for a breach of the Service Provider’s obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 13 of 18 EXHIBIT E ADDITIONAL TERMS & CONDITIONS 1. DEFINED TERMS a. Actual Launch Date: Is the date when access to the Content is turned on and it is on this date that billing will begin. b. Affiliates: Affiliates means any entity controlling, controlled by, or under common control with, Customer, where “control” means direct or indirect ownership or control of at least fifty percent (50%) of the equity or beneficial interest of such entity, or possession, directly or indirectly, of the power to otherwise direct or cause the direction of the management and policies of the subject entity. c. Change of Control: “Change of Control” means (i) the sale of all or substantially all of our or your assets; or (ii) a merger, consolidation or similar transaction providing for the acquisition of the direct or indirect ownership of more than fifty percent (50%) of all of our or your shares or similar equity interests. d. Content: Wellbeats designs, creates, produces and delivers a wide range of content. Wellbeats also provides a range of related services including, but not limited to, support, reporting and communications connected with the delivery of the content. The videos and related services are defined as our Content. The Content may also include, hardware, software and/or online platforms that deliver the Content. e. Eligibility File: This file contains the list of Members that you desire to have access to the Content. Eligibility File details will be mutually agreed to during the implementation process. f. Eligibility File Periodicity: Wellbeats will assume you will provide us an Eligibility File monthly unless you request a change. Changes to quarterly or annually may be made during your implementation process. g. Estimated Launch Date: The Estimated Launch Date is the mutually agreed upon date when it is anticipated the Content will be made available to your defined Members. Estimated Launch Date is: September 1, 2022 h. Members: Members are those individuals the City includes on its Eligibility File who will be provided access to the Content. If enabled by the City, Members may also be other individuals who are invited by an existing Member to join Wellbeats. These invited individuals are called “Invited Members”. 2. TERMINATION. a. Upon termination, access to any Content will be removed and we will discontinue providing any support or other services to the City. 3. PROPRIETARY RIGHTS. a. The City acknowledges that Wellbeats owns all proprietary rights and copyrights to the Content and all artwork, graphics, advertising, trademarks, video feed, copyrights and names used in conjunction therewith. b. Nothing provided herein shall be construed as an assignment or grant by Wellbeats of any of our proprietary rights or copyrights to the City. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 14 of 18 c. All trademarks, trade names, designs and logos and all associated goodwill existing and arising in the future shall be and remain our property or the property of any third party we licensed with to provide it to the City. 4. CONTENT LICENSE. a. In connection with the Content provided to the City by us, WELLBEATS (“we,” “us” or “our”) grants to the City a limited, non-exclusive, non-transferrable, non- perpetual, license to access the Content described in this Proposal. b. Services provided to the City includes streaming of the Content through an application (“App”) or HTML5 portal (“Website”). City’s Members will be able to access the Content via PC, tablet or other mobile device or smart phone. c. Content may only be used with the Members the City includes in the eligibility file you provide (i.e., employees, dependents and/or any other designated users) and if approved by the City, Invited Members. d. The City may not broadcast or otherwise use the Content commercially. e. Wellbeats reserves all rights to modify, remove or otherwise change any of the content provided through the Content. Depending on the subscription level of Content purchased, we may, from time to time, update classes or packages available through the Content. We, in our sole discretion and at any time, may discontinue certain classes or third-party providers of classes available through the Content. f. Additional fitness and other video packages, including content provided by third parties, may be made available by Wellbeats for additional fees. This additional content will not be provided to the City’s Members and the City will not be charged for this content without the City’s prior written agreement. 5. USAGE RESTRICTIONS. The City shall not (and the City shall not authorize or permit its employees or third parties to do any of the following: (a) translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System; (b) remove, obscure, or alter the titles, copyright notices, trademarks, logos, trademark notices, patent notices or other proprietary or restricted rights, notices, affixed to or contained in the System; (c) make any claim or representation of ownership or deny or challenge our ownership of the Content; (d) use the System in any manner that violates any local, state, federal or international law, rule, regulation or ordinance; (e) use, copy, modify, or prepare derivative works of our software or content, or any part thereof, except as expressly authorized; or (f) disclose, demonstrate, distribute, sell, lease, sublicense, lend, give, share, transfer, assign or otherwise make all or any portion of our software or content available to any natural person, corporation, or other entity, except as expressly authorized. 6. ELIGIBILITY FILES a. Eligibility Files will be sent to Wellbeats as specified in the Defined Terms section of this agreement. b. The Eligibility File must be sent to Wellbeats using the file format mutually agreed upon during the implementation process. c. Any changes made by the City to the agreed upon format without prior review and DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 15 of 18 approval by Wellbeats could result in one-time fees of $250 to fix the files. The City will be given an opportunity to resend any incorrect Eligibility Files to avoid these additional charges. 7. ACCESSING CONTENT. a. Any suspension, interruption, or unavailability of the City’s Member’s internet service will not reduce the City’s monthly fee for access to the Content. b. The City or its Members are responsible for all costs and any other charges or expenses charged by their internet service provider. c. Members will be required to accept the Wellbeats Terms of Service before being allowed to access the Content. The Terms of Service can be found here: www.wellbeats.com/Terms-Of-Service 8. PAYMENT TERMS AND CONTENT SUSPENSION. a. Pricing is based on the total number of estimated Members. b. The City will be billed on the actual number of Members included on the Eligibility File the City provides. i. If enabled by you, Members may also invite other individuals to join Wellbeats. These individuals are called “Invited Members”. ii. You will be billed for any Invited Members who are invited to join Wellbeats. iii. You can turn off invitations or limit the number of Invited Members allowed by a Member. iv. Invited Members can not invite other individuals to join Wellbeats. c. Billing for Members and Invited Members will begin on the Actual Launch Date. i. Fees may be monthly or annually in advance. If paid annually, you may be subject to an annualized true-up. ii. True-ups will be invoiced when annualized variances are +/- 5% or $500 which is ever is greater. iii. True-Ups are at the sole discretion of Wellbeats and will be based on the Eligibility Files received by Wellbeats in addition to any Invited Members. d. Payment is due Net 30 days from the date on the invoice. e. All payments must be made using an approved electronic funds transfer method such as an Automated Clearing House (ACH) type of payment. f. Overdue payments on undisputed invoices may be charged interest at the lesser of 1.5% per month or the maximum interest allowed by law. g. If you are outside the U.S., you must pay in U.S. Dollars using an electronic payment method. You are responsible for any charges related to exchange rates. h. Upon 10 days’ written notice to you for failure to make a payment, we may suspend all Content until payment is made. i. We will not provide a pro-rated amount for any suspended time during the month for failure to pay for Content. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 16 of 18 j. Maintenance, support services or administrative fees are charged at a flat rate. These are typically one-time fees and will be changed at time of renewal to the then current fee. k. Billing questions can be sent to Wellbeats billing team at: billing@wellbeats.com l. Invoices will contain the following information. Vendor Name (both) Remit to Information (included on email) Dollar Amount Due (invoice) Company Contract or Purchase Order Number (Only if provided to WB) Company Contact (included on email) Invoice Number (invoice) Date (invoice) Detailed Description (invoice) 9. COLLECTION AND USE OF MEMBER DATA. a. All information collected from Members will be collected in compliance with Wellbeats’ Privacy Policy at www.wellbeats.com/privacy and these Terms and Conditions. b. Wellbeats will collect certain information from Members to provide customized Content, including, but not limited to a Member’s first name, last name, email address, user name and password (to set up a registered account for the Content), age, gender, fitness level, fitness goals, and through the continued use of the Content, Wellbeats will collect information on Members’ use of Content, Member’s preferences, activities and log any additional information input by each Member (collectively “Member Data”). c. Wellbeats will process and use the Member Data for the sole and exclusive purpose of providing the Content. We will: (a) keep and maintain Member information in strict confidence, using such degree of care as is appropriate and consistent with its obligations under applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Member Data solely and exclusively for the purpose of providing the Content, such use and disclosure being in accordance with this agreement, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Member Data for our own purposes. d. Wellbeats may use Member Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Content. We use a combination of databases to ensure that the data is not combined to constitute protected health information and that Member Data cannot be extracted by a third party in its entirety. 10. SECURITY. a. All Content will be provided through a cloud-based server that has received a recognized independent certification or equivalent independent audit to help ensure the confidentiality, integrity and availability of the Content. b. All access and collection of Member Data will be transmitted using approved and DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 17 of 18 recognized encryption methods and all Member Data will be encrypted when in transit and at rest. c. Full backups of the Content and Member Data are performed daily, with incremental backups throughout the day. Backups are encrypted and then transferred and stored in real time to an offsite storage facility within the United States. d. No Member Data will be stored outside of the United States. e. Wellbeats uses commercially reasonable best practices to prevent the insertion of any viruses or similar types of malware into our Content. f. In lieu of undergoing annual security reviews, Wellbeats will provide you, upon your request, a copy of our most recent SSAE18 SOC2 Type2 independent audit report. After your review of the report, Wellbeats would be happy to answer any follow-on questions related to the security protections put in place to protect the City’s Members Data. 11. WARRANTIES AND WARRANTY DISCLAIMERS. We represent and warrant that (a) we will comply with all applicable state or federal laws and regulations regarding the use of the Content; and (b) the Content will not knowingly contain any viruses, worms, Trojan horses, or other malicious code specifically designed to permit unauthorized access to devices or equipment. WE DO NOT WARRANT THAT THE CONTENT OR THE SYSTEM WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, WE DISCLIAM ALL OTHER WARRANTIES, EXPRESS, IMPLED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. 12. LIABILITY. Except for gross negligence or willful misconduct by Wellbeats, neither we nor any of our affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to any of your systems as a result of the use of the Content. When the City and its members use certain features of the Content, such as online features, special software, anti-malware or similar applications may be required to protect user equipment and software or to access the Internet. It is the City and its members’ sole responsibility to take appropriate precautions to protect any computer and other hardware of users from damage to their software, files, and data as a result of any such virus or other harmful feature. Wellbeats does not represent, warrant, or covenant that access to our Content will not cause the loss of files or disrupt the normal operations of any equipment, including but not limited to users computers. For these and other reasons, the City acknowledges and understands the importance of backing up all files to another storage mechanism prior to such activities. The City understands and accepts the risks if associated with not to backing up files. 13. LIMITATIONS OF LIABILITY. WELLBEATS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS OR OTHER CAUSE. EACH PARTY SHALL NOT HAVE ANY LIABILITY TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITTIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH). WELLBEATS SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES ARISING FROM DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 Official Purchasing Document Last updated 10/27/2021 Services Agreement MISC 2022 – SA with Wellbeats Page 18 of 18 OR RELATED TO YOUR USE OF THE CONTENT, OR LOSS OF INFORMATION OR DATA. IN NO EVENT SHALL WELLBEATS BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID TO US BY YOU. 14. MISCELLANEOUS a. Relationship of the Parties. These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. b. Change of Control. No party will require the consent from the other party when going through a Change of Control event. A party will provide notice to the other party 30 days in advance or as soon as practical of any Change of Control event. If the Change of Control event results in a competitor of a party owning a controlling interest in the other party, the party not undergoing the Change of Control event will have the option to terminate this Agreement without penalty by providing notice of termination within 30 days of receiving such notice from the party undergoing the Change of Control event. DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 CERTIFIC ATE OF INSURANCE NO 16 THIS IS TO CERTIFY TO: To Whom It May Concern that the following described policy(ies) or cover note(s) in force at this date have been effected to cover as shown below: NAMED INSURED: Wellbeats, Inc ADDRESS: 1660 South, MN-100 Suite 590, St Louis Park, MN 55416 Description of operations and/or activities and/or locations and/or vehicles to which this certificate applies: Evidence of Insurance TYPE INSURER POLICY NO. POLICY PERIOD from (mm/dd/yyyy) to (mm/dd/yyyy) LIMIT OF INSURANCE Cyber Liability Insurance Beazley Insurance Company of Canada 36320044 06/11/2021 to 09/17/2022 $3,000,000 Aggregate $3,000,000 Information and Security & Privacy $3,000,000 Technology Liability $50,000 Computer Hardware Replacement Costs $1,000,000 Cyber Extortion Loss $1,000,000 Data Recovery Costs $1,000,000 Business Interruption $1,000,000 Dependent Buisness Loss $1,000,000 Regulatory Defense and Penelties $250,000 PCI Fines, Expenses and Costs $100,000 Privacy Breach Response Services $1,000,000 Privacy Breach Response Notified Individuals Claims Expense $10,000 All Losses 24 Hour Waiting Period Additional Information: This certificate is issued as a matter of information only and is subject to all the limitations, exclusions and conditions of the above -listed policies as they now exist or may hereafter be endorsed. Should one of the above-noted policies be cancelled before the expiry date shown, notice of cancellation will be delivered in accordance with the policy provisions. Limits shown above may be reduced by Claims or Expenses paid. BFL CANADA Risk and Insurance Services Inc. Signed in Toronto on June 27, 2022 Per: Authorized Representative DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 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). PRODUCER CONTACTNAME:PHONE(A/C, No, Ext):FAX(A/C, No): E-MAILADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:XXXXXXX 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. INSRLTR TYPE OF INSURANCE ADDLINSD SUBRWVD POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC OTHER: EACH OCCURRENCE DAMAGE TO RENTEDPREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG $ $ $ $ $ $ $ AUTOMOBILE LIABILITY ANY AUTO OWNEDAUTOS ONLY HIREDAUTOS ONLY SCHEDULEDAUTOS NON-OWNEDAUTOS ONLY COMBINED SINGLE LIMIT(Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE(Per accident) $ $ $ $ $ UMBRELLA LIAB OCCUR EXCESS LIAB CLAIMS-MADE DED RETENTION $ EACH OCCURRENCE AGGREGATE $ $ $ WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03)©1988-2015 ACORD CORPORATION. All rights reserved The ACORD name and logo are registered marks of ACORD Lockton Companies444 W. 47th Street, Suite 900Kansas City MO 64112-1906(816) 960-9000 WELLBEATS, INC.1660 HIGHWAY 100 S., SUITE 590ST. LOUIS PARK MN 55416 9/17/2022 1507118 X X 1,000,000 XXXXXXX XXXXXXX XXXXXXX XXXXXXX X X X 10,000 5,000,000 5,000,000 XXXXXXX X X X NO SIR/DEDUCTIBLE 1,000,000 300,000 15,000 1,000,000 2,000,000 2,000,000 XXXXXXX XXXXXXX XXXXXXX Ohio Security Insurance Company 24082 A BAS2264867158 6/1/2022 9/17/2022 A BKS2264867158 6/1/2022 9/17/2022 A USO2264867158 6/1/2022 9/17/2022 NOT APPLICABLE FOR YOUR INFORMATION 18542969 18542969 6/12/2022 X N N N N N N DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26 CERTIFIC ATE OF INSURANCE NO 17 THIS IS TO CERTIFY TO: City of Fort Collins PO BOX 580 Fort Collins, CO 80522 that the following described policy(ies) or cover note(s) in force at this date have been effected to cover as shown below: NAMED INSURED: Wellbeats ADDRESS: 1660 South, MN-100 Suite 590, St Louis Park, MN 55416 Description of operations and/or activities and/or locations and/or vehicles to which this certificate applies: Evidence of Insurance TYPE INSURER POLICY NO. POLICY PERIOD from (mm/dd/yyyy) to (mm/dd/yyyy) LIMIT OF INSURANCE Commercial General Liability Insurance Beazley Insurance Company of Canada 36320044 06/11/2021 to 09/17/2022 $2,000,000 $5,000,000 General Aggregate $5,000,000 Bodily Injury and Property Damage Liability - Each Occurance $5,000,000 Products-Completed Operations $5,000,000 Personal Injury and Advertising Injury Liability $25,000 Medical Payments $500,000 Tenants Legal Liability $75,000 S.E.F. 94 Legal Liability for Damage to Hired Automobiles $1,000,000 Employee Benefits Liability Additional Information: It is understood and agreed that City of Fort Collins is added to the General Liability Insurance Policy noted above as Additional Insured but only with respect to liability arising out of the operations of the Named Insured as it relates to the activity to which this certificate applies. This certificate is issued as a matter of information only and is subject to all the limitations, exclusions and conditions of the above -listed policies as they now exist or may hereafter be endorsed. Should one of the above noted policy(ies) be cancelled before the expiry date shown, the insurer(s) will endeavor to provide 30 days of written notice to the certificate holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives. Limits shown above may be reduced by Claims or Expenses paid. BFL CANADA Risk and Insurance Services Inc. Signed in Toronto on July 15, 2022 Per: Authorized Representative DocuSign Envelope ID: BEBE0D5A-59B1-4DAF-B6A0-29AC9F705E26