HomeMy WebLinkAbout583422 CLEAR RISK INC - CONTRACT - AGREEMENT MISC - CLEAR RISK INC1
CLEARRISK CLAIMS SERVICES AGREEMENT
THIS AGREEMENT is made at St. John’s, in the Province of Newfoundland and Labrador, this
22nd day of June, 2016.
BETWEEN:
CLEARRISK INC. , a body corporate, organized and existing under the laws of the Province of
Newfoundland and Labrador (“Clear Risk ”) of the first part
AND:
City of Fort Collins, CO (“Client”) of the second part
WHEREAS:
A. ClearRisk provides a software product that manages claims and risk information
(“ClearRisk Claims”); and
B. ClearRisk has agreed to license to Client and Client has agreed to license from
ClearRisk pursuant to the terms and conditions contained herein.
WITNE SSE TH that for and in consideration of the sum of one dollar ($1.00) and the respective
covenants and agreements of the parties contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by each of the
parties), it is hereby agreed as follows:
1. Interpretation
1.1 Definitions
a “Business Day” means any day other than Saturday, Sunday or a day that is a
statutory holiday as observed by the City of St. John’s, in the Province of
Newfoundland and Labrador.
b “Clear Risk” means Clear Risk Inc.
c “Client” means City of Fort Collins, CO.
d “ClearRisk Claims” has the meaning as set out in the recitals of this Agreement.
e “Confidential Information ” means all confidential information, data, or know-
how disclosed by one party (the “Discloser ”) to the other party (the
“Recipient”), whether orally or in writing, that is designated as confidential or
that reasonably should be understood to be confidential given the nature of
information and the circumstances of disclosure. Confidential Information does
not include information, technical data or know-how which:
i is in the possession of the Recipient at the time of disclosure as established
by the Recipient’s files and records immediately prior to the time of
disclosure;
ii prior or after the time of disclosure becomes part of the public knowledge or
literature, not as a result of any inaction or action of the Recipient; or
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iii is approved for public release by Discloser in writing.
f “Discloser” has the meaning as set out in Subsection 1.1(e).
g “Event of Default” has the meaning set out in Section 8.1 hereto.
h “Party” means ClearRisk or Client and “Parties” ClearRisk and Client.
i “Policy ” has the meaning as set out in Subsection 9.6a hereto.
j “Protected Parties” shall have the meaning set out in Section 9.4 hereto.
k “Recipient” has the meaning as set out in Subsection 1.1(e).
1.2 Schedules and Recitals
The recitals to this Agreement are hereby incorporated into and form part of this
Agreement. The following Schedules are attached hereto and form part of this
Agreement:
Schedule “A” Salesforce.com Additional Terms
Schedule “B” Pricing of ClearRisk Claims
For greater certainty, Client acknowledges and agrees that the terms and
conditions set forth in the attached Schedule “A” form part of this Agreement and
Client agrees to be bound by those terms and conditions. Client acknowledges
and agrees that the terms set out in the attached Schedule “A” are terms imposed
upon ClearRisk by its suppliers and a breach by Client of the terms and conditions
set forth therein could impact and/or prevent Client from being able to access
ClearRisk Claims.
2 Term
2.1 Term of Agreement
This Agreement comes into force as of the date hereof and has a term of one year
from the date on which this Agreement comes into force unless it is renewed in
accordance with the provisions of Section 2.2 and Section 2.3 hereto.
2.2 Renewal unless cancelled after initial term
This Agreement shall renew for succeeding one-year terms (not to exceed four (4)
additional one-year periods) unless a Party notifies the other Party of its intention
not to renew this Agreement no less than thirty (30) days prior to the renewal date.
3 Grant of License
ClearRisk hereby grants to Client, subject to the terms and conditions of this Agreement
(including the schedules attached hereto), a non-exclusive, non-transferable license to
use ClearRisk Claims.
4 License Fee
Client agrees to pay the fees and other charges for ClearRisk Claims and other services
provided under this Agreement as specified in Schedule “B”. All amounts payable
hereunder are exclusive of any and all taxes, and Client is responsible for payment of
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such taxes (excluding taxes based on ClearRisk’s net income). All prices are stated, and
Client shall pay, in US dollars. Payment received by ClearRisk after the due date shall
be subject to a late fee equal to one and one-half percent (1.5%) per month, or, if less,
the maximum amount allowed by applicable law. At the end of the three-year term of
this Agreement and any subsequent one-year terms, ClearRisk may adjust the fee
payable under this Agreement by providing Client written notice of such adjustment at
least sixty (60) days prior to the beginning of the new term.
5 Intellectual Property
5.1 ClearRisk Claims
Subject to the limited rights expressly granted hereunder, ClearRisk reserves all
rights, title and interest in and to ClearRisk Claims, including all related intellectual
property rights. No rights are granted to Client hereunder other than as expressly
set forth in this Agreement. ClearRisk retains all right, title and interest in and to
ClearRisk Claims at all times, and regardless of the form or media in or on which
the original or other copies may subsequently exist. Finally, any suggestions,
ideas or inventions that Client, its employees or agents, voluntarily and optionally
disclose to ClearRisk through any means will be used, or not used, by us at
ClearRisk’s sole discretion; and, ClearRisk will have no obligation to Client, its
employees and/or agents regarding any ideas or inventions that Client, its
employees and/or agent disclose through such means.
5.2 Content
The Parties hereto agree that Client shall retain all right, title and interest in any
and all data Client provides for inclusion in the ClearRisk Claims. ClearRisk
agrees that it will not share any data it receives from Client with any other party.
6 Confidentiality
6.1 Use and Protection of Confidential Information
(i) It is agreed that the Confidential Information will only be used in ClearRisk
claims. The Recipient also undertakes not to use the Confidential Information
or allow its use by a third party for any personal, commercial or other purpose,
or for any other reason whatsoever.
(ii) Except as otherwise permitted in writing by the Disclosing Party, (a) the
Receiving Party shall use the same degree of care that it uses to protect the
confidentiality of its own confidential information of like kind (but in no
event less than reasonable care) not to disclose or use any Confidential
Information of the Disclosing Party for any purpose outside the scope of this
Agreement, and (b) the Receiving Party shall limit access to Confidential
Information of the Disclosing Party to those of its employees, contractors and
agents who need such access for purposes consistent with this Agreement
and who have signed confidentiality agreements with the Receiving Party
containing protections no less stringent than those herein.
(iii) ClearRisk shall maintain appropriate administrative, physical, and technical
safeguards for protection of the security, confidentiality and integrity of Client
Data. ClearRisk shall not (a) modify Client Data, (b) disclose Client Data
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except as compelled by law in accordance with the “Compelled Disclosure”
section below or as expressly permitted in writing by Customer, or (c) access
Client Data except to provide the Services and prevent or address service or
technical problems, or at Client’s request in connection with customer
support matters.
6.3 Non-Discretionary Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing
Party if it is compelled by law to do so, provided the Receiving Party gives
the Disclosing Party prior notice of such compelled disclosure (to the extent legally
permitted) and reasonable assistance, at the Disclosing Party's cost, if the
Disclosing Party wishes to contest the disclosure. If the Receiving Party is
compelled by law to disclose the Disclosing Party’s Confidential Information
as part of a civil proceeding to which the Disclosing Party is a party, and the
Disclosing Party is not contesting the disclosure, the Disclosing Party will
reimburse the Receiving Party for its reasonable cost of compiling and
providing secure access to such Confidential Information.
6.4 Breach Notification
To the extent a state, provincial, or federal security breach law applies to a security
breach, ClearRisk will comply with the applicable law. To the extent no such law
applies to a security breach, ClearRisk will notify customer of a security breach,
following the discovery or notification of such security breach, in the most
expedient time possible under the circumstances, without unreasonable delay,
consistent with the legitimate needs of applicable law enforcement, and after taking
any measures necessary to determine the scope of the breach and restore the
reasonable integrity of the system. ClearRisk will send any applicable notifications
regarding a security breach to the notification email address or via direct
communication with the Customer (e.g. phone call, in-person meeting etc.) For
purpose of this Section, "Security Breach" means an actual disclosure, or
reasonable belief that there has been a disclosure, by ClearRisk of Customer Data
to any unauthorized person or entity.
7 Disclaimer of Warranty
SUBJECT TO THE REPRESENTATIONS AND WARRANTIES OTHERWISE
PROVIDED IN THIS AGREEMENT, CLIENT’S USE OF CLEARRISK CLAIMS IS AT
CLIENT’S OWN RISK. CLEARRISK PROVIDES CLEARRISK CLAIMS ON AN “AS IS”,
“WHERE IS”, BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT. CLEARRISK ALSO
DISCLAIMS ALL LIABILITY WITH REGARD TO CLIENT’S VIEWING OF ANY WEB
SITES THAT MAY BE LINKED FROM CLEARRISK CLAIMS. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
CLEARRISK MAKES NO WARRANTY THAT CLEARRISK CLAIMS IS ACCURATE,
TIMELY, UNINTERRUPTED OR ERROR-FREE, THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF CLEARRISK CLAIMS WILL BE RELIABLE, THE
QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE
OF CLEARRISK CLAIMS WILL MEET CLIENT’S EXPECTATIONS OR ANY ERRORS
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IN CLEARRISK WILL BE CORRECTED.
8 Default and Termination
8.1 Events of Default
The Parties agree that an Event of Default shall include:
a a breach by Client or ClearRisk of a term of this Agreement (including the
Schedules);
8.2 Termination by Party upon Event of Default
(i) Upon the occurrence of an Event of Default attributable to Client under this
Agreement, ClearRisk may issue a notice in writing of default and on failure of
Client to remedy the same or cause the same to be remedied within thirty (30)
Business Days’ after the issuance of the notice, ClearRisk may at its option
terminate this Agreement by notifying the Client in writing of its election so to
do. In the event that this Agreement is terminated, such termination shall not
prevent ClearRisk from collecting from Client any sums or payments owing that
accrued prior to termination.
(ii) Upon the occurrence of an Event of Default attributable to ClearRisk under this
Agreement, then Client may issue a notice in writing of default and on failure of
ClearRisk to remedy the same or cause the same to be remedied within thirty
(30) Business Days’ after the issuance of the notice, Client may at its option
terminate this Agreement by notifying ClearRisk in writing of its election so to
do. In the event that this Agreement is terminated, such termination shall not
prevent Client from collecting from ClearRisk a payment equivalent to the pro-
rated portion of any License Fees paid in advance by Client.
8.3 Irreparable Harm
Each party agrees that should it breach or violate any obligations set out in this
Agreement, the other party shall be irreparably harmed and that such harm cannot
be adequately compensated for in damages. Each party further agrees that in the
event that either party breaches its obligations set out in this Agreement, ClearRisk
will have the right to seek and obtain immediate injunctive relief to enforce
obligations under this Agreement in addition to any other rights and remedies it
may have at law or equity.
9 Indemnification and Insurance
9.1 Indemnification by Client
In accordance with the Colorado Constitution, Article XI, Section 1 the City shall
not indemnify and/or hold harmless another party against any liability incurred as a
result of the acts or omissions of the City.
9.2 Indemnification by ClearRisk
ClearRisk shall defend Client against any claim, demand, suit or proceeding made
or brought against Client by a third party alleging that the use of ClearRisk Claims
as permitted hereunder infringes or misappropriates the intellectual property rights
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of a third party, and shall indemnify Client for any damages finally awarded against,
and for reasonable legal fees incurred by, Client in connection with any such claim,
provided that Client (a) promptly gives ClearRisk written notice of the claim, (b)
gives ClearRisk sole control of the defence and settlement of the Claim (provided
that ClearRisk may not settle or defend any claim unless it unconditionally releases
Client of all liability), and (c) provides to ClearRisk all reasonable assistance, at
ClearRisk’s expense.
ClearRisk shall at all times promptly indemnify and hold Client safe and harmless
from and against any and all other actions, manner of actions, causes of actions,
liabilities, claims, demands, suits, damages (incidental, direct, indirect, special,
consequential or otherwise), losses, injuries, expenses (including, without
limitation, legal fees on a solicitor and own client basis) or otherwise which may be
brought against or suffered by Client for, arising from or directly connected with a
breach by ClearRisk or of this Agreement.
9.3 Indemnification of 3rd party claims – Client
In accordance with the Colorado Constitution, Article XI, Section 1 the City shall
not indemnify and/or hold harmless another party against any liability incurred as a
result of the acts or omissions of the City.
9.4 Indemnification of Third Party Claims – ClearRisk
Subject to Sections 7, and 9.5 herein, ClearRisk agrees that it shall at all times
promptly indemnify and hold Client safe and harmless from and against any and all
actions, manner of actions, causes of actions, liabilities, claims, demands, suits,
damages (incidental, direct, indirect, special, consequential or otherwise), losses,
injuries, expenses (including, without limitation, legal fees on a solicitor and own
client basis) or otherwise which may be brought against or suffered by Client for,
arising from or directly connected with a breach by ClearRisk of this Agreement.
9.5 Limitation of Liability
IN NO EVENT WILL EITHER PARTY OR IT’S OFFICERS, DIRECTORS,
EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY FOR LOST
PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND
WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT WILL MAXIMUM CUMULATIVE LIABILITY
UNDER THIS AGREEMENT EXCEED $7,500.00. THE FOREGOING
DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW
9.6 Insurance
ClearRisk agrees that:
a That the property, assets, undertakings, activities and liability of ClearRisk are
insured against risks, loss and/or damages under a policy of insurance (the
“Policy”) with insurers who are satisfactory to Client in amounts, for risks and
otherwise on terms which are reasonable in relation to such assets and
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activities of ClearRisk and as is prudent having regard to the business
conducted by ClearRisk.
b That the Policy will, at a minimum, carry limits of not less than five million
dollars ($5,000,000.00) per claim and have a deductible of not more than ten
thousand dollars ($10,000.00).
c That Client is named as an additional insured under the general liability
insurance provisions of the Policy with respect to liability arising from or out of
the ClearRisk Claims by Client.
d That the Policy shall apply as primary insurance and contain an undertaking by
the insurers to notify Client in writing not less than thirty (30) days’ prior to any
material change, cancellation or termination and that ClearRisk itself will notify
Client within 48 hours of receipt of notification by insurers of any cancellation or
termination of the Policy.
e That certificates of insurance, together with copies of the coverage sheet,
policy and any amending endorsements, in a form acceptable to Client, will be
delivered to Client and ClearRisk upon execution of this Agreement, and upon
every renewal of the Policy for so long as this Agreement remains in effect.
f That there has been no default or failure by the party or parties insured under
the provisions of such Policy which would prevent the recovery by the Party or
Parties insured there under of the full amount of any insured loss.
10 Miscellaneous
10.1 Further Assurances
The Parties and each of them shall at any time and from time to time do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably required so as to
accomplish and carry into effect the intentions of this Agreement.
10.2 Waiver of Breach
No delay or omission of either of the Parties to exercise any right or power
accruing upon any default or breach under this Agreement shall impair any such
right or power or shall be construed to be an acquiescence therein or waiver of any
such default or breach or of any right or power accruing upon any such default or
breach or any subsequent default or breach under this Agreement.
10.3 Waiver of Terms
None of the conditions, covenants or agreements contained in this Agreement may
be waived in whole or in part unless such waiver is in writing and signed by the
Party in whose favor the representations, warranties, conditions, covenants or
agreements so waived operate.
10.4 Assignment and Sublicenses
Client shall not be permitted to assign this Agreement or any of its obligations
hereunder without the prior written consent of ClearRisk, which consent may be
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withheld by ClearRisk in its sole discretion. Client also agrees that it shall not have
the right to grant sublicenses under this Agreement without the prior written
agreement of ClearRisk.
10.5 Notice
Any notice or other document required or permitted to be given to any party
hereunder shall be validly given if delivered personally (including by courier
service) or sent by facsimile transmittal addressed to the addressee thereof at the
following respective addresses:
(a) if to ClearRisk at:
100 Elizabeth Avenue
St. John’s, NL
Canada A1B 1S1
Attention: Craig Rowe
Email: craig@clearrisk.com
Fax: 1(877) 734-7475; and
(b) if to Client at:
City of Fort Collins
215 N. Mason
Fort Collins, CO 80522
Attention: Purchasing
Email: purchasing@fcgov.com
Phone: 970-221-6775
Any notice or other document if delivered shall be deemed to have been received
by and given to the addressee on the date of delivery, and if given by facsimile
transmittal shall be deemed to have been received by and given to the addressee
on the next Business Day following the day of sending. Any party may at any time
give notice in writing to the others of any change of address for these purposes. In
the event of actual or threatened postal interruption in Canada, no such notice shall
be deemed to have been received until it has in fact been received by the party for
whom it is intended.
10.6 Rules of Interpretation
Words importing the singular number shall include the plural and vice versa and
words importing the use of any gender shall include all genders. Headings used in
this Agreement are for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose including, without limitation, its
interpretation. Expressions such as “hereof”, “hereunder” and “he re by” shall be
construed as referring to the entire Agreement and not only to the particular Article,
section, subsection or clause in which they appear. In determining beneficial
ownership by a person, such person shall be considered as having a beneficial
ownership interest in the assets of any company controlled, directly or indirectly, by
such person. This Agreement shall not be construed or interpreted so as to create
any rights to or be enforceable by any person who or which is not now, or does not
in future become, a party to this Agreement.
10.7 Governing Law
This Agreement shall be construed in accordance with the laws of the State of
Colorado, USA.
10.8 Business Days
In the event that any act is required hereunder to be done, any notice is required
hereunder to be given, or any period of time is to expire hereunder on any day that
is not a Business Day, such act shall be required to be done or notice shall be
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required to be given or time shall expire on the next succeeding Business Day.
10.9 Severability
The invalidity or unenforceability of any provision or part of any provision of this
Agreement shall not affect the validity or enforceability of any other provision or
part thereof, and any such invalid or unenforceable provision or part thereof shall
be deemed to be separate, severable and distinct, and no provision or part thereof
shall be deemed dependent upon any other provision or part thereof unless
expressly provided for herein.
10.10 Counterparts and Facsimiles
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement, and may be delivered by
any of the parties to any other party by facsimile transmittal.
10.11 Time of the Essence
Time shall in all respects be of the essence of this Agreement.
10.12 Currency
All dollar amounts referred to herein refer to lawful money of the United States.
10.13 Enurement
This Agreement and everything contained herein shall enure to the benefit of and
are binding upon each of the Parties hereto and their respective successors and
permitted assigns as fully and as effectually as if the same had been mentioned
herein.
10.14 Entire Agreement
This Agreement, including the schedules attached hereto, is the entire agreement
between the parties made to date regarding the subject matter and supersedes
any prior agreements or understandings between the parties relating to its subject
matter. No modification or variation of this Agreement shall be effective unless in
writing signed by the Parties.
IN WITNESS WHEREOF the signature of a duly authorized director of each of ClearRisk and
Client were hereunto affixed in accordance with their rules and regulations in that behalf
contained, the day and year first before written.
CLEAR RISK INC. CITY OF FORT COLLINS
Craig Rowe Gerry Paul, Purchasing Director
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Schedule “A”
Additional Terms – Salesforce.com Terms
Customer Full Legal Name : City of Fort Collins, CO
Customer Addres: 215 N Mason St, Fort Collins, CO 80522
These SFDC Service Terms of Use ("Agreement") are between salesforce.com, inc., a
Delaware corporation with its principal place of business at The Landmark @ One Market, Suite
300, San Francisco, California 94105 ("SFDC") and the party named above. This Agreement is
effective, once the Agreement is signed by Customer below, as of the Acceptance Date (the
“Effective Date”).
1. DEFINITIONS
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. "Control," for purposes of this definition, means
direct or indirect ownership or control of more than 50% of the voting interests of the subject
entity.
"App Exchange" means the online directory of applications that interoperate with the Services,
located at http://www.salesforce.com/appexchange or at any successor websites.
“Customer” means the non-SFDC party named above and its Affiliates.
“Customer Data” means all electronic data or information submitted by Customer to the
Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents or programs.
“Acceptance Date” means the date on which SFDC accepts an order from the Reseller for
Services subscriptions on behalf of Customer.
“Reseller” means ClearRisk Inc., from which Customer has purchased subscriptions to the
Services.
“Services” means the online, Web-based platform services provided by
SFDC via http://www.salesforce.com and/or other designated websites as described in the
User Guide, that are ordered by Customer from the Reseller, including associated offline
components defined as part of the Services in the User Guide but excluding Third Party
Applications.
“Third - Party Applications ” means online, Web-based applications and offline software
products that are provided by third parties including but not limited to Reseller,
interoperate with the Services, including but not limited to those listed on the AppExchange.
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“User Guide” means the online user guide for the Services, accessible via
http://www.salesforce.com, as updated from time to time.
“Users” means individuals who are authorized by Customer to use the Services, for whom
subscriptions to a Service have been purchased, and who have been supplied user
identifications and passwords by Customer (or by SFDC at Customer’s request). Users may
include but are not limited to employees, consultants, contractors and agents of Customer, or
third parties with whom Customer transacts business.
2. SERVICES
a. Provision of Services. Subject to Customer’s payment of all applicable fees and its
compliance with the terms of this Agreement, SFDC shall make the Services available to
Customer pursuant to this Agreement.
b. User Subscriptions. Services are User subscriptions and may be accessed by no more
than the specified number of Users. Additional User subscriptions that are added during
the subscriptionterm will be prorated for the remainder of the subscription term in effect at
the time the additional User subscriptions are added and the added User subscriptions shall
terminate on the same date as the pre-existing User subscriptions. User subscriptions are
for designated Users and cannot be shared or used by more than one User, but may be
reassigned to new Users replacing former Users who no longer require ongoing use of the
Services.
c. SFDC Responsibilities. SFDC shall: (i) provide to Customer basic support for the
Services at no additional charge. SFDC will not provide support for any Third Party
Applications, including but not limited to an application provided to Customer by Reseller, or
any customizations, extensions or and code provided by any third party, including but not
limited to Reseller. SFDC will use commercially reasonable efforts to make the Services
available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which
SFDC shall give at least 8 hours’ notice via the Services and which SFDC shall schedule
to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to
3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond
SFDC’s reasonable control, including without limitation, acts of God, acts of government,
flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems
(other than those involving SFDC employees), or Internet service provider failures or
delays. SFDC will provide the Services only in accordance with applicable laws and
government regulations.
3. Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with
this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of
Customer Data and of the means by which it acquired Customer Data, (iii) use
commercially reasonable efforts to prevent unauthorized access to or use of the Services,
and notify SFDC promptly of any such unauthorized access or use, and (iv) use the Services
only in accordance with the User Guide and applicable laws and government regulations.
Customer shall not (a) make the Services available to anyone other than Users, (b) sell,
resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous,
or otherwise unlawful or tortious material, or to store or transmit material in violation of third-
party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere
with or disrupt the integrity or performance of the Services or third-party data contained
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therein, or (f) attempt to gain unauthorized access to the Services or their related
systems or networks.
4. THIRD-PARTY PROVIDERS
a. Acquisition of Third-Party Products and Services. Any acquisition by Customer of third-
party products or services, including but not limited to Third-Party Applications and
implementation, customization and other consulting services provide to Customer by
Reseller, and any exchange of data between Customer and any third-party provider,
including but not limited to Reseller, whether directly or indirectly by way of an application
provided by Reseller or otherwise, is solely between Customer and the applicable third-
party provider. SFDC does not warrant or support third-party products or services, whether
or not they are designated by SFDC as “certified” or otherwise, and whether or not they
come from an authorized SFDC Reseller.
b. Third-Party Applications and Customer Data. If Customer installs or enables Third-
Party Applications for use with Services, including but not limited to applications provided to
Customer by Reseller, Customer acknowledges that SFDC may allow providers of those
Third-Party Applications to access Customer Data as required for the interoperation of such
Third Party Applications with the Services. SFDC shall not be responsible for any
disclosure, modification or deletion of Customer Data resulting from any such access by
Third-Party Application providers or through such providers’ applications.
c. Google Services. Service features that interoperate with Google services depend on
the continuing availability of the Google application programming interface (“API”) and
program for use with the Services. If Google Inc. ceases to make the Google API or
program available on reasonable terms for the Services, SFDC may cease providing
such Service features without entitling Customer to any refund, credit, or other
compensation.
5. SERVICE TERMS
a. User Subscriptions. If Customer is in breach of this Agreement SFDC may, without
limiting its other rights and remedies, suspend Customer’s access to the Services upon
notice to Customer.
6. PROPRIETARY RIGHTS
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, SFDC
reserves all rights, title and interest in and to the Services, including all related intellectual
property rights.
b. Restrictions. Customer shall not (i) permit any third party to access the Services
except as permitted herein or in an Order Form, (ii) create derivative works based on the
Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or
framing on Customer's own intranets or otherwise for its own internal business
purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a)
build a competitive product or service, or (b) copy any features, functions or graphics of the
Services.
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c. Ownership of Customer Data. As between SFDC and Customer, Customer exclusively
owns all rights, title and interest in and to all Customer Data.
d. Suggestions. SFDC shall have a royalty-free, worldwide, transferable, sublicenseable,
irrevocable, perpetual license to use or incorporate into the Services any suggestions,
enhancement requests, recommendations or other feedback provided by Customer,
including Users, relating to the operation of the Services.
e. Federal Government End Use Provisions. SFDC provides the Services, including
related software and technology, for ultimate federal government end use solely in
accordance with the following: Government technical data and software rights related to
the Services include only those rights customarily provided to the public as defined in this
Agreement. This customary commercial license is provided in accordance with FAR 12.211
(Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions,
DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3
(Rights in Commercial Computer Software or Computer Software Documentation). If
a government agency has a need for rights not conveyed under these terms, it must
negotiate with SFDC to determine if there are acceptable terms for transferring such rights,
and a mutually acceptable written addendum specifically conveying such rights must be
included in any applicable contract or agreement.
7. CONFIDENTIALITY
a. Definition of Confidential Information. As used herein, "Confidential Information"
means all confidential information disclosed by a party ("Disclosing Party") to the other
party ("Receiving Party"), whether orally or in writing, that is designated as confidential or
that reasonably should be understood to be confidential given the nature of the information
and the circumstances of disclosure. Confidential Information of Customer shall include
Customer Data; Confidential Information of SFDC shall include the Services; and
Confidential Information of each party shall include the terms and conditions of this
Agreement and all Order Forms, as well as business and marketing plans, technology and
technical information, product plans and designs, and business processes disclosed by such
party. However, Confidential Information (other than Customer Data) shall not include
any information that (i) is or becomes generally known to the public without breach of
any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its
disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a third party without breach of any obligation owed to the
Disclosing Party, or (iv) was independently developed by the Receiving Party.
b. Protection of Confidential Information. Except as otherwise permitted in writing by
the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to
protect the confidentiality of its own confidential information of like kind (but in no
event less than reasonable care) not to disclose or use any Confidential Information of
the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the
Receiving Party shall limit access to Confidential Information of the Disclosing Party to those
of its employees, contractors and agents who need such access for purposes consistent
with this Agreement and who have signed confidentiality agreements with the Receiving
Party containing protections no less stringent than those herein.
c. Protection of Customer Data. SFDC shall maintain appropriate administrative, physical,
and technical safeguards for protection of the security, confidentiality and integrity of
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Customer Data. SFDC shall not (a) modify Customer Data, (b) disclose Customer Data
except as compelled by law in accordance with the “Compelled Disclosure” section below or
as expressly permitted in writing by Customer, or (c) access Customer Data except to
provide the Services and prevent or address service or technical problems, or at
Customer's request in connection with customer support matters.
d. Compelled Disclosure. The Receiving Party may disclose Confidential Information
of the Disclosing Party if it is compelled by law to do so, provided the Receiving
Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent
legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing
Party wishes to contest the disclosure. If the Receiving Party is compelled by law to
disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to
which the Disclosing Party is a party, and the Disclosing Party is not contesting the
disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable
cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
a. SFDC Warranties. SFDC warrants that (i) the Services shall perform materially in
accordance with the User Guide, and (ii) subject to the “Google Services” section above, the
functionality of the Services will not be materially decreased during a subscription term. For
any breach of either such warranty, Customer’s exclusive remedy from SFDC shall be to
terminate this Agreement as provided in the “Termination for Cause” section below.
b. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to
enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code
(except for Malicious Code previously transmitted to the warranting party by the other party).
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW.
9. MUTUAL INDEMNIFICATION
a. Indemnification by SFDC. SFDC shall defend Customer against any claim, demand,
suit, or proceeding ("Claim") made or brought against Customer by a third party alleging
that the use of the Services as permitted hereunder infringes or misappropriates the
intellectual property rights of a third party, and shall indemnify Customer for any damages
finally awarded against, and for reasonable attorney’s fees incurred by, Customer in
connection with any such Claim; provided that Customer (a) promptly gives SFDC written
notice of the Claim, (b) gives SFDC sole control of the defense and settlement of the Claim
(provided that SFDC may not settle or defend any Claim unless it unconditionally releases
Customer of all liability), and (c) provides to SFDC all reasonable assistance, at SFDC’s
expense.
b. Indemnification by Customer. Customer shall defend SFDC against any Claim made or
brought against SFDC by a third party alleging that the Customer Data, or Customer's use of
the Services in violation of this Agreement, infringes or misappropriates the intellectual
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property rights of a third party or violates applicable law, and shall indemnify SFDC for any
damages finally awarded against, and for reasonable attorney’s fees incurred by, SFDC in
connection with any such Claim; provided that SFDC (a) promptly gives Customer written
notice of the Claim, (b) gives Customer sole control of the defense and settlement of the
Claim (provided that Customer may not settle or defend any Claim unless it
unconditionally releases SFDC of all liability), and (c) provides to Customer all
reasonable assistance, at Customer’s cost.
c. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s
sole liability to, and the indemnified party’s exclusive remedy against, the other party for any
type of Claim described in this section.
10. LIMITATION OF LIABILITY
a. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT
OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE
THE TOTAL AMOUNT PAID BY CUSTOMER TO RESELLER FOR THE SFDC
SERVICES, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF
$500,000 OR THE AMOUNT PAID BY CUSTOMER TO RESELLER FOR THE SFDC
SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
b. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE
EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
a. Term of Agreement. This Agreement commences on the Effective Date and continues
until all User subscriptions granted in accordance with an applicable Reseller Order have
expired or been terminated.
b. Term of User Subscriptions. User subscriptions commence on the start date specified
in Reseller’s order to SFDC for such subscriptions and continue for the subscription term
specified therein.
c. Termination for Cause. A party may terminate this Agreement for cause (i) upon
30 days written notice to the other party of a material breach if such breach remains
uncured at the expiration of such period, or (ii) if the other party becomes the subject of a
petition in bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors.
d. Return of Customer Data. Upon request by Customer made within 30 days after the
effective date of termination, SFDC will make available to Customer for download a file of
Customer Data in comma separated value (.csv) format along with attachments in their
native format. After such 30-day period, SFDC shall have no obligation to maintain or
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provide any Customer Data and shall thereafter, unless legally prohibited, delete all
Customer Data in its systems or otherwise in its possession or under its control.
e. Surviving Provisions. The sections titled “Proprietary Rights,” “Confidentiality,”
“Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Return
of Customer Data,” “Surviving Provisions” and “General Provisions” shall survive
any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
a. Export Compliance. Each party shall comply with the export laws and regulations of the
United States and other applicable jurisdictions in providing and using the Services. Without
limiting the foregoing, (i) each of SFDC and Customer represents that it is not named on any
U.S. government list of persons or entities prohibited from receiving exports, and (ii)
Customer shall not permit Users to access or use Services in violation of any U.S. export
embargo, prohibition or restriction.
b. Relationship of the Parties. The parties are independent contractors. This Agreement
does not create a partnership, franchise, joint venture, agency, fiduciary or
employment relationship between the parties.
c. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
d. Notices. Except as otherwise specified in this Agreement, all notices, permissions and
approvals hereunder shall be in writing and shall be deemed to have been given upon: (i)
personal delivery, (ii) the second business day after mailing, (iii) the second business day
after sending by confirmed facsimile, or (iv), except for notices of termination or an
indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices
to SFDC shall be addressed to the attention of its VP, Worldwide Sales Operations, with
a copy to its General Counsel. All notices to Customer shall be addressed to the
relevant Service system administrator designated by Customer. Legal Notices to Customer
shall also be addressed to Customer’s signatory of this Agreement or any person
designated beneath the signature area below.
e. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any
right under this Agreement shall constitute a waiver of that right. Other than as expressly
stated herein, the remedies provided herein are in addition to, and not exclusive of, any
other remedies of a party at law or in equity.
f. Severability. If any provision of this Agreement is held by a court of competent jurisdiction
to be contrary to law, the provision shall be modified by the court and interpreted so
as best to accomplish the objectives of the original provision to the fullest extent permitted
by law, and the remaining provisions of this Agreement shall remain in effect.
g. Assignment. Neither party may assign any of its rights or obligations hereunder, whether
by operation of law or otherwise, without the prior written consent of the other party (not to
be unreasonably withheld). Notwithstanding the foregoing, either party may assign this
Agreement in its entirety (including all Order Forms), without consent of the other party, to its
Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or
substantially all of its assets not involving a direct competitor of the other party. A party’s
sole remedy for any purported assignment by the other party in breach of this paragraph
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shall be, at the non-assigning party’s election, termination of this Agreement upon written
notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of the parties, their respective successors and permitted assigns.
h. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall
be governed exclusively by the internal laws of the State of California, without regard to its
conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
i. Venue; Waiver of Jury Trial. The state and federal courts located in San Francisco
County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or
relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such
courts. Each party also hereby waives any right to jury trial in connection with any action or
litigation in any way arising out of or related to this Agreement.
j. Entire Agreement. This Agreement constitutes the entire agreement between SFDC
and Customer and supersedes all prior and contemporaneous agreements, proposals or
representations, written or oral, concerning its subject matter between SFDC and Customer.
No modification, amendment, or waiver of any provision of this Agreement shall be effective
unless in writing and signed by the party against whom the modification, amendment
or waiver is to be asserted. However, to the extent of any conflict or inconsistency
between the provisions in the body of this Agreement and any exhibit or addendum hereto
or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a
Customer purchase order or in any other Customer order documentation (excluding
Order Forms) shall be incorporated into or form any part of this Agreement, and all
such terms or conditions shall be null and void.
CUSTOMER
By:
Print Name:
Title:
Date:
CITY OF FOR COLLINS
By:
Print Name:
Title:
Date:
DocuSign Envelope ID: 9FA4DD1C-2271-4A96-90C6-D5E2AFEDCF90
Director of Purchasing & Risk Management
6/27/2016
Gerry Paul
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Schedule “B”
Pricing of ClearRisk Claims
ClearRisk is waiving all annual user fees and one-time implementation fees for the initial, 1-year
term of this agreement. This initial term commences the day this agreement is executed and
has a duration of 1 year.
Included within the initial term for Client are:
1 Admin user licenses
2 Delegate user license
1 Online Web Form
1 Online Web Form Setup
Implementation
Prior to the renewal term (Section 2.2), ClearRisk will provide Client an invoice showing (at
minimum) the following line items:
1. Annual Base Software License: $9500/year. This includes 1 Admin users, 2 Delegate
users and 1 Online Web Form.
This annual invoice amount will be determined during the 1st year initial term and will reflect
needed user license and online web form amounts.
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