HomeMy WebLinkAbout569774 NINJIO LLC - CONTRACT - AGREEMENT MISC - NINJIO LLCDIGITAL SECURITY E-LEARNING SERVICES AGREEMENT
(HOSTED SERVICES)
THIS DIGITAL SECURITY E-LEARNING SERVICES AGREEMENT (this
“Agreement”) is entered into by and between Ninjio, LLC (“Company”), a Delaware limited
liability company with a place of business at 1590 Esperance Dr., Moorpark, CA 93021, and
Customer in accordance with the Subscription Form listed below and the Terms and Conditions
attached hereto as Exhibit A and incorporated herein by reference.
Subscription Form
Customer: City of Fort Collins
Effective Date: July 6, 2016
Start Date: August 1, 2016
Customer Contact Name: SUZANNE JARBOE-SIMPSON
Monthly Per User Subscription Fee: $1.50 per month per authorized user, payable in advance of
each month.
Number of Authorized Users: 1500
Initial Subscription Term: 13 Months
Other Fees:
The months of August 2016 and August of 2017 will
be delivered at no cost to the Customer.
NOW, THEREFORE, the parties listed below hereby enter into this Agreement as of the
Effective Date listed above.
COMPANY
NINJIO, LLC
By: Zachary Schuler
Title: CEO
Date: 7/6/2016
CUSTOMER
City of Fort Collins, Colorado
By: Gerry Paul
Title: Purchasing Director
Date: July 12, 2016
DocuSign Envelope ID: AE15392D-B4F9-4515-B8EB-D241E3D8E5B9
BACKGROUND
Exhibit A
TERMS AND CONDITIONS
Subscription Fee may be adjusted based on the actual number of Authorized Users,
if different from the number listed in the Subscription Form.
1.3 Subject to the terms hereof, Company will provide Customer with
technical support services. Company will provide Technical Support to Customer
via both telephone and electronic mail on weekdays during the hours of 9:00 am
through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support
A. Company has developed a proprietary and confidential digital security e-
learning system made up of animated educational videos intended to be viewed
solely by Customer’s employees in an effort to provide such individuals with access
to an ongoing, entertaining, and informative digital security awareness program (the
“Ninjio System”).
B. Customer desires to purchase a subscription to gain access to the Ninjio
system and receive Ninjio services pursuant to the terms and conditions hereof.
1. SUBSCRIPTION TO NINJIO SYSTEM
1.1 Company has developed and is the owner of the Ninjio System.
Customer hereby agrees to pay the per user subscription (“Monthly Per User
Subscription Fee”) and other fees (“Other Fees”) as described in Exhibit A, a copy
of which is attached hereto and incorporated herein by reference, in order to enable
certain limited number of authorized Customer employees (“Authorized Users”) to
receive access to the Ninjio System during the term listed in Exhibit A. Company
will make the Ninjio System available to Authorized Users at their individual
workstations over the Internet. Customer shall not be required to install any Ninjio
software on Customer’s own servers or on Customer employee workstations or
purchase any Ninjio hardware in order to access the Ninjio System. As part of the
registration process and before receiving access to the Ninjio System, each
Authorized User will be required to identify an administrative user name and
password for their own individual account or will connect to the Ninjio System
using their Single Sign On credentials and agree to abide by Company’s terms of
service.
1.2 Beginning on the “Start Date” as listed in Exhibit A, Ninjio will make
available to Authorized Users a different digital security animated educational
video approximately each month during the Term. The videos may be viewed
solely by Authorized Users. Customer shall provide Ninjio with a specific list of
Authorized Users and their corresponding email addresses, or must connect to the
Ninjio System with their Single Sign On capabilities before such users may be
given access to these videos. The subscription fees described in Exhibit A are
based on the initial list of Authorized Users provided to Company by Customer. A
table of the Monthly Per User Subscription Fees is attached hereto as Schedule 1.2.
If Customer requests or makes changes to the number of Authorized Users listed in
the Subscription Form or otherwise (i.e. either increases or decreases the number of
Authorized Users), then the Monthly Per User Subscription Fee per Authorized
User may fluctuate up or down based on Company’s per user pricing for that
particular band of users. By way of example only and making reference to the
Authorized Users and corresponding Monthly Per User Subscription Fees in
Schedule 1.2, if on the 1st of month 1 of the initial subscription term, Customer has
775 Authorized Users enrolled in the Ninjio System, Customer’s Monthly Per User
Subscription Fee will be $2.50 for that particular month. However, if on the 1st day
of Month 2, Customer enrolls an additional 750 users in the Ninjio System for a
total of 1500 Authorized Users, then the Monthly Per User Subscription Fee will be
$2.00 for that particular month. To that end, Customer acknowledges, understands
and agrees that pricing and corresponding Monthly Per User Subscription Fees are
based on a sliding scale (as provided in Schedule 1.2) and shall be related to the
number of listed or actual Authorized Users (whichever is greater) making use of
the Ninjio System during each month of the term. The pricing provided in
Schedule 1.2 will remain the same throughout the Term of this agreement, but may
change without notice after the Term of this agreement has expired. Unless
otherwise approved in writing in advance by Company, Customer will be billed,
3.3 Notwithstanding anything to the contrary herein, Company shall have
the right to collect and analyze data and other information relating to the provision,
use and performance of various aspects of the Ninjio System and related systems
and technologies (including, without limitation, information concerning Customer
Data and data derived therefrom), and Company will be free to (i) use such
information and data to improve and enhance the Ninjio System and for other
development, diagnostic and corrective purposes in connection with the Ninjio
System and other Company offerings, and (ii) disclose such data solely in aggregate
or other de-identified form in connection with its business. No rights or licenses in
the Ninjio System (including, but not limited to, the videos which are a part thereof)
are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable Monthly Per User
Subscription Fees and other fees described in the Subscription Form and Schedule
1.2 for enabling Authorized Users to access the Ninjio System in accordance with
the terms therein (collectively, the “Fees”). If Customer’s use of the Ninjio System
exceeds the Service Capacity set forth in the Subscription Form or otherwise
requires the payment of additional fees per the terms of this Agreement, Customer
shall be billed for, and shall pay Company for, such usage and Customer agrees to
pay the additional fees in the manner provided herein. Company reserves the right
to change the Fees or applicable charges and to institute new charges and Fees at
the end of the Initial Subscription Term or then-current renewal term, upon
thirty (30) days prior written notice to Customer, which notice may be delivered by
email. If Customer believes that Company has billed Customer incorrectly,
Customer must contact Company no later than thirty (30) days after the first billing
statement in which the error or problem appeared, in order to receive an adjustment
or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full
payment for invoices issued in any given month must be received by Company
thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to
a finance charge of 1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is lower, plus all expenses of collection and may result
in immediate termination of Service. Customer shall be responsible for all taxes
associated with enabling Authorized Users to access the Ninjio System other than
U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for
the Initial Subscription Term as specified in the Subscription Form.
5.2 In addition to any other remedies it may have, either party may also
terminate this Agreement upon thirty (30) days’ notice (or without notice in the
case of nonpayment), if the other party materially breaches any of the terms or
conditions of this Agreement. Customer will pay in full for Authorized Users to
have access to and make use of the Ninjio System up to and including the last day
on which the Ninjio System is made available to such Authorized Users. All
sections of this Agreement which by their nature should survive termination will
survive termination, including, without limitation, accrued rights to payment,
confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry
standards to maintain the Ninjio System in a manner which minimizes errors and
interruptions in Authorized Users access to and use of the Ninjio System and shall
perform the Implementation Services in a professional and workmanlike manner.
The Ninjio System may be temporarily unavailable due to scheduled maintenance
or for unscheduled emergency maintenance, either by Company or by third-party
providers, or because of other causes beyond Company’s reasonable control, but
Company shall use reasonable efforts to provide advance notice in writing or by e-
mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT
WARRANT THAT THE NINJIO SYSTEM WILL BE UNINTERRUPTED OR
ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED FROM USE OF THE NINJIO SYSTEM.
Schedule 1.2
Monthly Per User Subscription Fees
Authorized Users
Monthly Per User
Subscription Fees
(based on number of
Authorized Users)
1-30 $2.65
31 - 100 $2.45
101 - 250 $2.25
251 - 500 $2.00
501 - 750 $1.85
751 – 1100 $1.70
1101 - 1750 $1.50
1751 - 2500 $1.30
2501 - 4000 $1.15
4001 - 6500 $0.95
6501 – 10000 $0.75
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EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE NINJIO
SYSTEM AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS”
AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
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7. INDEMNITY
Company shall hold Customer harmless from liability to third parties
resulting from infringement by the videos which make up the Ninjio System of any
United States copyright laws, provided Company is promptly notified of any and all
threats, claims and proceedings related thereto and given reasonable assistance and
the opportunity to assume sole control over defense and settlement. Company will
not be responsible for any settlement it does not approve in writing. The foregoing
obligations do not apply with respect to portions or components of the Ninjio
System (i) not supplied by Company, (ii) made in whole or in part in accordance
with Customer specifications and using assets or work product provided to
Company by Customer, (iii) that are modified by Customer or any Authorized User
after delivery by Company (which is expressly prohibited hereunder), (iv)
combined with other products, processes or materials where the alleged
infringement relates to such combination, (v) where Customer continues allegedly
infringing activity after being notified thereof or after being informed of
modifications that would have avoided the alleged infringement, or (vi) where
Customer’s use of the Ninjio System is not strictly in accordance with this
Agreement. If, due to a claim of infringement, the Ninjio System is held by a court
of competent jurisdiction to be or is believed by Company to be infringing on a
third party’s copyrights, Company may, at its option and expense (a) replace or
modify the Ninjio System (or portions thereof) to be non-infringing, (b) obtain for
Customer a license to continue using the Ninjio System (or portion thereof) that
was infringing, or (c) if neither of the foregoing is commercially practicable,
terminate this Agreement and Customer’s rights hereunder and provide Customer a
pro-rata refund of any prepaid, unused fees for the Ninjio System.
8. LIMITATION OF LIABILITY
COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT
LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS),
OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT
TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND
CONDITIONS RELATED THERETO UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR
OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR
CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR
ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND
COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS
THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER
CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR
THE NINJIO SYSTEM UNDER THIS AGREEMENT IN THE 12 MONTHS
PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH
CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or
invalid, that provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full force and effect and
enforceable. This Agreement is not assignable, transferable or sub-licensable by
Customer except with Company’s prior written consent. Company may transfer
and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written and
oral agreements, communications and other understandings relating to the subject
matter of this Agreement, and that all waivers and modifications must be in a
writing signed by both parties, except as otherwise provided herein. No agency,
partnership, joint venture, or employment is created as a result of this Agreement
and Customer does not have any authority of any kind to bind Company in any
respect whatsoever. In any action or proceeding to enforce rights under this
Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under this Agreement will be in writing and will be deemed to have
been duly given when received, if personally delivered; when receipt is
electronically confirmed, if transmitted by facsimile or e-mail; the day after it is
sent, if sent for next day delivery by recognized overnight delivery service; and
upon receipt, if sent by certified or registered mail, return receipt requested. This
Agreement shall be governed by the laws of the State of Colorado without regard
to its conflict of laws provisions.
DocuSign Envelope ID: AE15392D-B4F9-4515-B8EB-D241E3D8E5B9
and must pay Company, a minimum of seventy-five percent (75%) of the aggregate
Monthly Per User Subscription Fees based on the number of Authorized Users
provided for in the initial subscription form (“Subscription Form”) to which this
Agreement is attached, even if the actual number of Customer’s Authorized Users
using the Ninjio System ends up being less than such amount during a given month
during the term. If Customer has neglected to provide Company with the initial list
of Authorized Users by the Start Date, or has not uploaded the initial list of
Authorized Users by the Start Date, Company will bill Customer, and Customer
shall pay Company, for the number of Authorized Users listed in the Subscription
Form for each month until Customer has provided Company with or uploaded
Customers list of actual Authorized Users, at which point the Monthly Per User
Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling 805-864-
1999 or any time by emailing support@ninjio.com. Company will use
commercially reasonable efforts to respond to all Helpdesk tickets within one (1)
business day.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Neither Customer nor any of the Authorized Users will, directly or
indirectly: make use of the Ninjio System except in strict accordance with the terms
and conditions of this Agreement; share any of the videos or other portions of or
information related to the Ninjio System with any third parties; modify, translate, or
create derivative works based on the Ninjio System including, but not limited to,
the videos that are a part of such system; use the Ninjio System in a manner that
might otherwise benefit a third party; or remove any proprietary notices or labels
associated with the Ninjio System.
2.2 Customer represents, covenants, and warrants that Customer will use the
Ninjio System only in strict compliance with Company’s standard published
policies then in effect (the “Policies”) and all applicable laws and regulations.
Customer hereby agrees to indemnify, defend, and hold harmless Company against
any damages, losses, liabilities, settlements and expenses (including without
limitation costs and attorneys’ fees) in connection with any claim or action that
arises from an alleged violation of the foregoing or otherwise from Customer’s use
or Authorized Users’ use of the Ninjio System. Although Company has
no obligation to monitor Customer’s and Authorized Users’ use of the Ninjio
System, Company may do so and may prohibit any use of the Ninjio System it
believes may be (or is alleged to be) in violation of the foregoing.
2.3 Customer shall be responsible for obtaining and maintaining any
equipment and ancillary services needed to connect to, access or otherwise use the
Ninjio System, including, without limitation, modems, hardware, servers, software,
operating systems, networking, web servers and the like (collectively,
“Equipment”). Customer shall also be responsible for maintaining the security of
the Equipment, Customer account, passwords (including but not limited to
administrative and user passwords) and files, and for all uses of Customer account
or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the
“Disclosing Party”) has disclosed or may disclose business, technical or financial
information relating to the Disclosing Party’s business (hereinafter referred to as
“Proprietary Information” of the Disclosing Party). Proprietary Information of
Company includes non-public information regarding features, functionality and
performance of the Ninjio System including, but not limited to, video content.
Proprietary Information of Customer includes non-public data provided by
Customer to Company to enable Authorized Users to access the Ninjio System
(“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions
to protect such Proprietary Information, and (ii) not to use (except in accessing and
using the Ninjio System as expressly permitted herein) or divulge to any third
person any such Proprietary Information. The Disclosing Party agrees that the
foregoing shall not apply with respect to any information that the Receiving Party
can document (a) is or becomes generally available to the public, or (b) was in its
possession or known by it prior to receipt from the Disclosing Party, or (c) was
rightfully disclosed to it without restriction by a third party, or (d) was
independently developed without use of any Proprietary Information of the
Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer
Data. Company shall own and retain all right, title and interest in and to (a) the
Ninjio System (including, but not limited to, the videos that are a part thereof) and
all improvements, enhancements or modifications thereto, (b) any software,
applications, inventions or other technology developed by Company in connection
with implementing and making the Ninjio System available to Customer or
supporting Customer in connection with its use of the Ninjio System, and (c) all
intellectual property rights related to any of the foregoing.
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DocuSign Envelope ID: AE15392D-B4F9-4515-B8EB-D241E3D8E5B9