HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9142631broadbean
�rolcgy
Broadbean Inc.
ORDERFORM
APPLICWt4 LTJ INFORMATION
This Order Form governs the provision of services by Broadbean, Inc. ("Broadbean") of 240 Newport Center
Drive, Suite 205, Newport Beach, CA 92660 to the undersigned customer ("Customer") and is subject to
Broadbean's Standard Terms and Conditions for Direct Employers v4.11 (the "Terms"), which are incorporated
herein by reference. This Order Form is not an offer by Broadbean. Broadbean will not be bound except upon its
written acceptance of Customer's use of the Services and in accordance with the Terms. Capitalized terms not
defined herein shall have the meanings set forth in the Terms.
Contract ID: CTR-CITY-2442014-6584 New/Renewal: New Business
Broadbean Contact: Rob Grace
CONTACT INFORMATION
Customer: City Of Fort Collins
Address: 215 North Mason Street,
Fort Collins, Colorado, 80524
Customer Contact: Joan Busch, jbusch@fcgov.com
Customer Phone: 970-221-6829
MNONOtC'-O--NAT—IR-TA'—'C-ITIIIL4F.QRM'AITII.O.N
Service Term Start Date: 05/09/2014 1 Service Term End Date: 05/09/2015 Length of Service Term: 12 Mo.
Services: Corporate Ad Courier integrated with client's Cornerstone.ATS
Number Of Job Posts: 10 monthly postings
Special Terms:
• "Job Post" means a single job vacancy with a unique reference number, being posted via the Services, to any number of job
boards for up to one calendar month. Any posting of the job vacancy within a different calendar month will be counted as a
separate Job Post.
• Charges for Job Posts on a first order are based on a good faith estimate submitted by Customer. Pricing on future orders will
be based on previous use of Job Posts.
INVOICING INFORMATION:
Invoice to be addressed to: 215 North Mason Street, Fort Collins, Colorado, 80524
Invoice Email address: jbusch@fcgov.com
Special Instructions: Ad Courier Integrated within Cornerstone ATS
Purchase Order No: CTR-CITY-2442014-6584
Payment Terms: Net: 30 Days
$3,500.00 to be invoiced on: 05/09/2014
APPROVED SIG A RUM 9 E(S)
Customer and Broadbean hereby accept and agree to this Order Form and the Terms.
C�eR.(v Pa<,L
Gerry Paul (May 9, 2014)
Director of Purchasing
May 9, 2014
Execution of this Order Form and
Terms are carried
out electronically
1'^4 ! �at�it�
ck Copel na (May 10, 2014)
Page 1
Director
May 10, 2014
Broaabean ❑'.
210 Newport Center OrWe
SV to 205
Newport Beach, CA 92660
broadbe�an
Iernnobgy
BROADBEAN, INC.
STANDARD TERMS AND CONDITIONS FOR DIRECT EMPLOYERS (the
1. CONTRACT BETWEEN BROADBEAN AND CUSTOMER
1.1 The contract between Broadbean and Customer (the "Contract") shall comprise the Order Form and these Terms, and is the complete and exclusive
statement of the agreement between Broadbean and Customer. No other terms and conditions (including any terms or conditions which Customer
purports to apply under any purchase order, confirmation of order, correspondence or other document) shall apply.
1.2 Customer may use the Services on behalf of its Affiliates (as defined below) or give its Affiliates access to use the Services provided that:
1.2.1 Customer shall ensure that each Affiliate complies with all of the terms of the Contract in the same manner that such terms and conditions
apply to the Customer; and
1.2.2 Customer shall be responsible for and remain liable for all Affiliate acts and omissions.
"Affiliate" means an entity that controls, is controlled by, or is under common control with Customer.
2. TERM
The term of the Contract shall be the period stated on the Order Form unless terminated sooner as provided herein (the "Service Terre').
3. SERVICES AND RESPONSIBILITIES
3.1 Subject to the terms and conditions of the Contract, Customer may use the services provided by Broadbean (the "Services') to submit job
advertisements, announcements, or other information or materials ("Postings") regarding employment opportunities with Customer4or transmission
and placement on job boards, social networking websites or other distribution/search channels operated by third parties ("Job Boards") and to
manage and report on its Postings and responses thereto, and, if specified on the Order Form, to search resume databases operated or maintained
by third parties ("Resume Databases"), in each case as further described herein and as permitted using Broadbean's standard functionality, features
and tools. The Job Boards and Resume Databases are collectively referred to herein as "Candidate Sources".
3.2 Customer shall not disclose its login password for the Services to any third party. Customer shall ensure that only its authorized personnel
("Authorized Users') access the Services and that each Authorized User uses his/her unique login password ("User ID) to access the Services.
Customer shall ensure that each Authorized User uses his/her respective assigned User ID only and will not use anther's User ID
3.3 Broadbean shall use reasonable skill and care and comply with all applicable laws in the United States in its provision of the Services but makes no
representation or warranty that the Services will be accessible or free from error at all times. Furthermore, Broadbean does not warrant the continued
availability of any Candidate Source.
3.4 Broadbean may temporarily suspend and/or alter the operation of the Services for legal or technical reasons. Broadbean shall endeavor to notify
Customer as far in advance as possible of any temporary suspension or significant alteration but Customer acknowledges that prior notice may not
always be possible.
3.5 Customer shall not resell, rent, loan, sub -license, lease, distribute the Services or license the use of, or attempt to grant any rights to, the Services to
any third party other than its Affiliates in accordance with Section 1.2 above. Customer will not use the Services to act as a service bureau or
application service provider and shall not permit any kind of access to the Services to any third party other than its Affiliates. Customer agrees that
all Postings must reference only Customer or relevant Affiliate and must not dent fy any third party (e.a by name, trademark brand l000 website
address email address or otherwise). Customer shall not use Broadbean's copyrights, patents, trademarks, trade names, or other intellectual
property in anyway, except as expressly permitted in this Contract.
3.6 Customer shall not publish, disclose, reproduce or create derivative works from any information obtained pursuant to Customer's use of the Services
other than for internal business purposes unless expressly agreed in writing by Broadbean.
3.7 Customer shall not copy, make modifications to, make derivative works based on, reverse engineer or decompile the software supporting the
Services, except to the extent permitted by law.
3.8 Customer and its Authorized Users will not submit any Postings or other information or content, or use the Services in any way that:
3.8.1 infringes, misappropriates, or violates any intellectual property rights, trademark, copyright, patent, trade secret, publicity, privacy or other
right of any third party; or
3.8.2 violates any applicable state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders; or
3.8.3 constitutes or encourages any unlawful activities; or
Page 2
Brpadbean mc.
240 Newport Center Drme
sulm 205
Newport Beach, CA 92660
M
3.8.4 (a) promote or are related to fraudulent, deceptive, misleading or illegal activities, (b) promote or are related to alcohol, 'tobacco,
or weapons, (c) are related to pornographic or obscene material; (d) are related to excessively graph ccorexplicit violence; (e) al
defamatory, inappropriate or profane; (f) are disparaging to a Candidate Source; (g) are discriminatory or constilute_tlatezpeec
promote or contain viruses, spyware, worms, corrupted files, cracks; or (i) constitute unsolicited commercial email or online
communications (i.e., "spam") that violate generally accepted bulk email policies.
3.9 Customer acknowledges and agrees that Broadbean is not an "employment agency" as that term is defined under state and federal law, and that
Broadbean has no obligation under law to maintain any application materials that Customer receives via the Services. Customer acknowledges that
Broadbean is not involved in the hiring decision making process in any way. Customer is responsible for ensuring its compliance with all hiring and
employment decisions and actions and all documentation retention requirements under federal or state law, or the laws of any other jurisdiction
applicable to Customer and will collect and maintain data regarding Postings, job applicants and application materials as part of its own business
records in another form or media separate from and independent of the Services.
3.10 Where Customer provides Postings data to Broadbean via an automated feed (e.g. xml feed, career site scrape, API integration or Applicant Tracking
System) rather than manually inputting Posting data into the Broadbean Service;
3.10.1 Broadbean will submit Postings to Candidate Sources in the technical format provided to Broadbean by Customer. Broadbean is not
responsible for how Candidate Sources render that format and any changes required by Customer to that formatting are the responsibility
of Customer prior to submission to Broadbean; and
3.10.2 Customer will obtain from the Applicant Tracking System provider, on a timely basis, all support that Broadbean reasonably requires to
provide the Services.
3.11 Broadbean will set-up and configure the Customer account in a timely manner. Customer will nominate a single delivery manager (the "Customer
DM") authorized to agree decisions on account set-up, configuration, workflow and training. Customer will provide in a timely manner any decisions
and any associated information reasonably required by Broadbean to set-up and configure the Customer account.
3.12 Once the Customer account is set-up and configured, Broadbean will, in a timely manner, provide Customer with up to five live user training sessions
via online sharing software such as go -to -meeting or join -me. In addition, Broadbean will provide Customer with a video of the training session(s) for
users who can not make the live training session(s). Customer brill provide in a timely manner a set of training dates as requested by Broadbean and
brill ensure all users have attended a full Broadbean training session (live or recorded) before using the Services.
3.13 Broadbean may require Customer's Candidate Source account access credentials in order to configure the Services to post jobs or search for
candidates on any given Candidate Source (e.g. Broadbean vrll need Customers Monster.COm account details in order for the Services to post to
Customers Monster account on Customer's behall]. Customer agrees to provide these credentials to Broadbean in a timely manner.
3.14 Customer acknowledges that Broadbean's Big Data Analytics Suite ("BDAS") is dependent on Customer providing internal Customer, Career Site,
ATS and 3rd party data and that Customer is responsible for the provision of such data in the format reasonably required by Broadbean. If after
signing the Order Forth Customer cannot or will not provide Broadbean with such data, Broadbean will still make BDAS available to Customer and
the full fees will still be applicable, but BDAS will have gaps in the reports corresponding to the data not provided by Customer.
3.15 Customer will ensure Users have access to the Chrome, Internet Explorer or Safari browser to use the services, such browser to be of a version no
earlier than:
3.15.1 For use of Posting, Search or Reporting: Chrome v10, Internet Explorer v8, Safari v5.
3,15.2 For use of Big Data Analytics Suite: Chrome v30, Internet Explorer 00, Safari v7.
3.16 Should Customer not provide any such decision, information, set of training dates or account access credentials, as detailed above, within 4 weeks of
Broadbean requesting any such item in writing (including email) to the Customer DM, then at Broadbean's discretion, the start of the Service Term
will be deemed to be no later than 4 weeks after Broadbean's written request for such item.
3.17 Failure by Customer to (i) provide Broadbean with required account set-up and/or configuration decisions or information, (it) attend, or provide a
reasonable selection of dates for, online user training sessions, (iii) provide Broadbean with Candidate Source account access credentials, (iv)
provide Users with the required browser/version, or (v) use the Services after the Service Term has started, will not void these Terms & Conditions or
Customer's responsibility to pay the Fees.
3.18 Broadbean shall ensure that the Services operate as demonstrated to the Customer and as described in the user documentation. Customer has
performed reasonable due diligence, is satisfied that the Services meet their needs and acknowledges that no further functionality, workflow or
deliverables are required or expected from Broadbean or the Services unless specified in the Order Form. Should Customer decide after the Order
Form has been signed that the Services do not meet their needs or decide to change their workflow, or systems (e.g. Applicant Tracking System) or
data feed or career site to a format, process or system that the Services do not support, such a decision will not void these Terms & Conditions or
Customers responsibility to pay the Fees, however Broadbean will use all reasonable commercial endeavors to reconfigure the account (using pre-
existing Broadbean configuration options) to meet Customer's new needs at no additional cost to Customer.
3.19 Broadbean vAll provide online tools and training that allow Customer's Admin Users to add, delete and configure Candidate Sources and Users within
Customer's Broadbean account. Broadbean has no responsibility to perform functions for Customer during the Service Term that can be achieved
Page 3
Broadbean rnc.
2GD Newpml Cenle, D,Ne
Sul[e 205
NewpoN Beach, CA 92660
with these Tools. For significant change projects Broadbean can perform these functions for Customer if agreed between� ies antl
documented in a separate Order Form.
3.20 Broadbean will ensure the Services can post to all Candidate Sources in Broadbean's network as detailed at htto://www.broadbean.coMiob-hoards/.
If Customer requires the Services to post to a Candidate Source not part of Broadbean's network ("New Source") then Broadbean will use all
reasonable commercial endeavors to add New Sources to it's network at a rate of not less than one Candidate Source per week. Should Customer's
posting volumes to any such New Source exceed twenty (20) postings per month, both Broadbean and Customer will use all reasonable commercial
endeavors to persuade the New Source to provide Broadbean with access to an Application Programming Interface (API) that accepts automated
electronic postings from Broadbean in one of Broadbean's standard data formats. Should a New Source be unable or unwilling to provide Broadbean
with access to such an API in a timely manner then Broadbean will not be required to post jobs to that New Source and not posting to this New
Source will not void these Terms & Conditions or Customers responsibility to pay the Fees. In such scenarios Broadbean will still manually post to
such New Sources for Customer subject to Customer agreeing in writing (including email) to pay an additional fee per post/edit/delete for each New
Source at Broadbean's standard Manual Posting rates.
3.21 Broadbean's standard Manual Posting rates are:
English Language Non -English Lanouaoe
Post/EdiUDelete $2 per post per Candidate Source $6 per post per Candidate Source
3.22 Where Broadbean acts as a media buyer for Customer in relation to buying credits on a Candidate Source on behalf of Customer as authorized and
requested by Customer ("Media Buyer), Customer acknowledges that responsibility and liability for complying with the terms and conditions of use
of such Candidate Source remains with Customer.
3.23 Where Broadbean does not act as a Media Buyer, Customer acknowledges that:
3.23.1 in order to use the Services to submit Postings and/or search Resume Databases on certain Candidate Sources, Customer may need to
maintain active accounts, funded accounts or credits with those Candidate Sources;
3.23.2 Customer is responsible for complying with the terms and conditions of use of any Candidate Source and/or any other agreement between
Customer and the Candidate Source; and
3.23.3 Customer is responsible for the payment of all charges due to the operators of the Candidate Source.
3.24 Broadbean may collect and use data (e.g. to make improvements to the Services or publish the total posting volumes going through Broadbean)
derived from Customers use of the Services (e.g. number of Postings delivered to certain Job Boards) or as a result of Broadbean's performance
hereunder, provided in all cases that Broadbean will not disclose any data that identifies Customer or allows a third party to derive or identify
Customers data.
4. FEES
4.1 Fees for the Service Term are as stated on the Order Form.
4.2 Customer shall pay all undisputed sums within 30 days of receipt of invoice.
4.3 If Customer fails to pay any undisputed sum due to Broadbean by the due date for payment then without prejudice to any other right or remedy
available to Broadbean, Broadbean shall be entitled upon 14 days notice to Customer to suspend the Services until payment has been received by
Broadbean.
4.4 Customer and Broadbean shall act promptly, reasonably and in good faith to resolve any disputed invoices. If the dispute on any given invoice has
not been resolved within 45 days then, without prejudice to any other right or remedy available to either party, Broadbean shall be entitled upon a
further 14 days written notice to suspend the Services until such dispute is resolved.
4.5 The Fees do not include taxes. Customer will be responsible for, and will pay, all taxes associated with this Contract (other than taxes based on
Broadbean's gross receipts or net income).
INTELLECTUAL PROPERTY RIGHTS
5.1 Customer acknowledges that Broadbean holds all right, title and interest in and to the Services and any derivative works or improvements thereof,
including all copyright, patent, trade secret, trademark and other intellectual property or proprietary rights therein and that Customer has no rights in,
or to, such intellectual property other than the right to use the Services in accordance with these Terms.
DATA PROTECTION
6.1 Each parry shall comply with all applicable laws, rules and regulations, whether federal, state or other jurisdiction in relation to its handling,
processing, storage and use of personal data entered into, collected, received or stored via the Services and, in particular, shall take all appropriate
technical, organizational and secudly measures to prevent unauthorized access, loss and use of personal data.
Page 4
Broadbean Inc.
240 Newport tenter Drive
suite 205
Newport Beach, CA 92660
broadbe
1 hxhrlobgy
6.2 Broadbean is not responsible or liable to Customer or any other person for its cooperation with any law enforcement author) lei s�cou (`order,
subpoena or governmental authority requesting or directing Broadbean to disclose the personal data or other'sbnsitive information, entered into
collected, received or stored via the Services or the use or disclosure of such information to protect Broadbean's rig ts-customers.or-business.
Broadbean shall use commercially reasonable efforts to notify Customer in writing of any such request to disclose such data and information unless
such notification is prohibited by law.
7. CONFIDENTIALITY
7.1 Each party agrees to keep the terms of the Contract and all information that is obtained about the business, finances, technology and affairs of the
other party (collectively "Confidential Information") strictly confidential, and will not disclose, provide, or otherwise make available any Confidential
Information to any third party (other than to its professional advisers provided that such advisers are under an obligation of confidentiality no less
onerous than that contained in this Section) without the other party's prior written consent. Each party shall promptly report to the other party any
unauthorized use or disclosure of the other party's Confidential Information.
7.2 Section 7.1 shall not apply to the extent that:
7.2.1 any Confidential Information is in the public domain other than as a result of a breach of this Section or any other duty of confidence; or
7.2.2 Confidential Information is required to be disclosed by law or regulation including the Colorado Open Records Act (provided that the
disclosing party notifies the other party of such required disclosure in advance where this is permitted by law and allows such party an
opportunity to resist such disclosure).
8. LIMITATION OF LIABILITY
8.1 ALL WARRANTIES AND OTHER TERMS IMPLIED BY LAW (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON -INFRINGEMENT) IN RELATION TO THE SERVICES ARE HEREBY EXCLUDED BY BROADBEAN TO THE
FULLEST EXTENT PERMITTED BY LAW.
8.2 NOTHING IN THE CONTRACT SHALL EXCLUDE OR LIMIT LIABILITY FOR A PARTY'S OWN FRAUD OR WILLFUL MISCONDUCT OR FOR ANY
OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
8.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THE CONTRACT FOR ANY LOSS OF:
BUSINESS; GOODWILL; CONTRACTS; PROFITS; ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA; OR FOR ANY INDIRECT,
SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS (AND EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS).
8.4 THE TOTAL LIABILITY OF BROADBEAN TO CUSTOMER WITH RESPECT TO ANY LOSS OR DAMAGE UNDER OR IN CONNECTION WITH
THE CONTRACT SHALL NOT EXCEED AN AMOUNT EQUAL TO 125 % OF THE AGGREGATE FEES PAID BY CUSTOMER IN THE TWELVE
MONTHS IMMEDIATELY PRECEDING THE INCURRING OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATION SHALL NOT APPLY TO
ANY INDEMNIFICATION OBLIGATIONS HEREIN.
8.5 THE TOTAL LIABILITY OF CUSTOMER TO BROADBEAN (IN ADDITION TO ITS OBLIGATION TO PAY THE FEES AS AND WHEN THEY FALL
DUE FOR PAYMENT) WITH RESPECT TO ANY LOSS OR DAMAGE UNDER OR IN CONNECTION WITH THE CONTRACT SHALL NOT
EXCEED AN AMOUNT EQUAL TO 125% OF THE AGGREGATE FEES PAID BY CUSTOMER IN THE TWELVE MONTHS IMMEDIATELY
PRECEDING THE INCURRING OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATION SHALL NOT APPLY TO ANY INDEMNIFICATION
OBLIGATIONS HEREIN
8.6 CUSTOMER ACKNOWLEDGES THAT BROADBEAN HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR,
THE OPERATION AND PRACTICES OF ANY CANDIDATE SOURCES.
9. INDEMNIFICATION
9.1 BROADBEAN SHALL DEFEND, HOLD HARMLESS AND INDEMNIFY CUSTOMER AGAINST ALL LOSS, DAMAGE, CLAIMS, LIABILITIES,
COSTS AND EXPENSES ARISING OUT OF ANY ACTION BROUGHT AGAINST THE CUSTOMER ALLEGING THAT THE SERVICES AND/OR
SOFTWARE SUPPORTING THE SERVICES INFRINGES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY IN THE UNITED
STATES ("IP CLAIM") PROVIDED THAT:
9.1.1 CUSTOMER PROMPTLY NOTIFIES BROADBEAN IN WRITING OF SUCH IP CLAIM;
9.1.2 CUSTOMER MAKES NO ADMISSION OR SETTLEMENT OF SUCH IF CLAIM WITHOUT BROADBEAN'S PRIOR WRITTEN CONSENT
(SUCH CONSENT NOT TO BE UNREASONABLY CONDITIONED, WITHHELD OR DELAYED);
9.1.3 BROADBEAN HAS SOLE CONTROL OF THE DEFENCE AND ANY NEGOTIATIONS FOR COMPROMISE; AND
9.1.4 CUSTOMER PROVIDES, AT BROADBEAN'S EXPENSE, SUCH ASSISTANCE AS BROADBEAN REASONABLY REQUIRES TO
DISPUTE, COMPROMISE OR DEFEND THE IF CLAIM.
Page 5
Broadbean mc.
240 Netspoit tenter Drive
Svlte 205
Newport Beach, CA 92660
9.2 IF ANY IP CLAIM IS MADE, OR IN BROADBEAN'S REASONABLE OPINION IS LIKELY TO BE MADE, GAINST CUSTOME'� R—T ER
BROADBEAN MAY AT ITS SOLE OPTION AND EXPENSE:
9.2.1 PROCURE FOR CUSTOMER THE RIGHT TO CONTINUE USING THE SERVICES AND/OR SOFTWARE SUPPORTING THE
SERVICES; AND/OR
9.2.2 MODIFY OR REPLACE THE SERVICES AND/OR SOFTWARE SUPPORTING THE SERVICES SO THAT IT CEASES TO BE
INFRINGING PROVIDED THAT IT FUNCTIONS IN SUBSTANTIALLY THE SAME WAY AS IT DID PRIOR TO MODIFICATION; OR
9.2.3 TERMINATE THE CONTRACT IMMEDIATELY BY NOTICE IN WRITING TO CUSTOMER AND REFUND ANY FEES PAID BY
CUSTOMER AS AT THE DATE OF TERMINATION (LESS A REASONABLE SUM IN RESPECT OF CUSTOMER'S USE TO THE DATE
OF TERMINATION).
9.3 CUSTOMER SHALL DEFEND, HOLD HARMLESS AND INDEMNIFY BROADBEAN AGAINST ALL LOSS, DAMAGE, CLAIMS, LIABILITIES,
COSTS AND EXPENSES ARISING OUT OF ANY ACTION BROUGHT AGAINST BROADBEAN CONCERNING ANY ALLEGED OR ACTUAL
FAILURE OF CUSTOMER TO COMPLY WITH THE TERMS AND CONDITIONS OF USE OF ANY CANDIDATE SOURCE (EXCEPT WHERE DUE
TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BROADBEAN) PROVIDED THAT:
9.3.1 BROADBEAN PROMPTLY NOTIFIES CUSTOMER IN WRITING OF SUCH ACTION;
9.3.2 BROADBEAN MAKES NO ADMISSION OR SETTLEMENT OF SUCH ACTION WITHOUT CUSTOMER'S PRIOR WRITTEN CONSENT
(SUCH CONSENT NOT TO BE UNREASONABLY CONDITIONED, WITHHELD OR DELAYED);
9.3.3 CUSTOMER HAS SOLE CONTROL OF THE DEFENCE AND ANY NEGOTIATIONS FOR COMPROMISE; AND
9.3.4 BROADBEAN PROVIDES, AT CUSTOMER'S EXPENSE, SUCH ASSISTANCE AS CUSTOMER REASONABLY REQUIRES TO
DISPUTE, COMPROMISE OR DEFEND THE ACTION,
10. TERMINATION
10.1 Each party shall have the right to suspend or terminate the Contract:
10.1.1 immediately upon written notice to the other party if the other party commits any material or persistent breach of any of the provisions of the
Contract and, in the case of a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice
giving particulars of the breach and requiring it to be remedied; or
10.1.2 immediately upon written notice to the other party if the other party becomes insolvent, files for any form of bankruptcy or becomes the
subject of any involuntary proceeding relating to insolvency, liquidation, receivership or composition for the benefit of creditors if such
proceeding is not dismissed within 60 days of filing, makes any assignment for the benefit of creditors, has a receiver, administrative
receiver or officer appointed over the whole or a substantial part of its assets, or ceases to conduct business.
10.2 Upon termination of the Contract:
10.2.1 Customer shall immediately cease using the Services and permanently delete all login passwords for the Services;
10.2.2 Customer shall promptly pay to Broadbean any outstanding sums properly due to Broadbean pursuant to the Contract; and
10.2.3 each party shall return all Confidential Information belonging to the other party.
10.3 Termination of the Contract shall not affect the accrued rights or liabilities of the parties under the Contract nor any provision of the Contract which is
expressed or required to survive or operate in such event, which shall include the parties' rights and obligations under Sections 5-9. Termination of
the Contract by either party hereto shall not act as a waiver of any breach of the Contract and shall not act as a release of either party hereto from
any liability for breach of such party's obligations under the Contract.
11. GENERAL
11.1 Entire Agreement. The Contract contains the complete and exclusive agreement between the parties relating to the subject matter hereof and
supersedes any and all proposals, representations, previous agreements, arrangements, written or oral, and any other communications between the
parties in relation to such matters. No amendment, variation or modification of the Contract shall be deemed valid unless it is in writing and signed by
the parties.
11.2 Assignment No right or license under the Contract may be assigned or transferred by a party without the other party's prior written consent (not to
be unreasonably withheld or delayed), except that no such consent will be required in connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets.
Page 6
er.odbazn mc.
249 Newport Center DNve
Su it, 205
Newport 9eacb, CA 92660
11.3 No Third -Party Beneficiaries. Nothing express or implied Contract is intended to confer upon any arson other than he parties and their
respective successors, any rights, remedies, obligations or liabilities whatsoever.
11.4 Construction. Whenever used in this Contract, unless otherwise specified the terms "includes", "including", "e.g.", "for example", "such as", "for
instance" and other similar terms are deemed to include the term "without limitation' immediately thereafter. The headings of sections and
subsections of this Contract are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of
this Contract.
11.5 Counterparts; Facsimiles/Scanned Copies. The Contract may be executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a
facsimile or scanned copy of the signed Contract shall be deemed to be an original.
11.6 Governing Law; Jurisdiction. The Contract will be governed in accordance with the laws of the State of New York without regard to its conflict of
law provisions. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Illinois for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under the Contract and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
11.7 Force Majeure. Neither party shall be liable for any delay or non-performance under the Contract caused by any event beyond its reasonable
control (a "Force Majeure Event") provided that the party affected gives prompt notice in writing to the other party of such Force Majeure Event and
uses all reasonable endeavors to continue to perform its obligations under the Contract.
11.8 Notice. Any notice required to be given under the Contract shall be in writing and shall only be deemed to have been duly served if hand personally
delivered or sent by facsimile (with hard copy to be forwarded by first class mail or if overseas by airmail), or sent by RPost Registered Email service,
or sent by overnight, nationally -recognized courier or by registered or certified mail (return receipt requested), postage prepaid, first class recorded
delivery within the United States and outside the United States by registered airmail and to the address of the party set out in the Order Form or such
other address as may be notified by that party pursuant to this Section. Any notice pursuant to this Section 13.8 shall be deemed to have been
received:
11.8.1 if hand personally delivered, at the time of delivery;
11.8.2 if sent by facsimile, on production by the transmitting machine of a report indicating successful transmission;
11.8.3 if sent by overnight courier, on the business day following dispatch;
11.8.4 if sent by mail, two days after mailing; and
11.8.5 if sent by airmail, seven days after mailing
11.8.6 If sent by email, a registered receipt email message from RPost's Registered Email service.
11.9 Limitations on Actions. No actions or claims of any form arising from the Contract or the use of any Services may be brought by either party more
than one year after the facts giving rise to the cause of action have arisen.
11.10 Order of Precedence. In the event of a conflict between the Order Form and these Terms, the parties agree that the Order Form shall prevail.
11.11 Relationship Between the Parties. The performance by Broadbean of its duties and obligations under this Contract shall be that of an independent
contractor and nothing in the Contract shall be construed as creating a partnership, joint venture or agency of any kind between the parties. Each
party assumes sole and full responsibility for its acts and the acts of its personnel. Neither party shall have the authority to make commitments or
enter into contracts on behalf of, bind, or otherwise oblige the other party.
11.12 Severability. If any provision of the Contract shall be held to be illegal, void, invalid or unenforceable the legality, validity and enforceability of the
remainder of the Contract shall not be affected.
11.13 Waiver. No failure or delay by either party in exercising any of that party's rights or remedies under the Contract shall operate as a waiver of those
rights or remedies. No right or remedy of either party under the Contract shall be deemed to be waived unless the waiver is in writing and signed by
both parties. No waiver of any breach of the Contract is a waiver of any subsequent or other breach.
Page 7
Broad Bean O,
210 Newport center Drive
Suite 205
Newport Beaeh, CA 92660
Signature: Ge e er Pie
Gerry Paul (May 9, 2016)
Signature: Jj� m,a)
Email: gspaul@fcgov.com
Title: Director of Purchasing
Email: AlexS@broadbean.com
Title: Director
Company: City of Fort Collins Company: Broadbean