HomeMy WebLinkAboutContract 46268 ELI tl Y sEc TAW1
,ONTRACT NO
GUIDESPARK, INC.
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement("MSA") is between City of Fort Worth, ("Company") and GuideSpark, Inc. ("GuideSpark").
The MSA consists of the terms and conditions set forth below and any attachments or exhibits identified below. This MSA and
any Order Forms or Statements of Work(as defined below)that reference this MSA constitute the entire agreement between the
parties("Agreement").
This Agreement permits Company to purchase a subscription to software-as-a-service products and related services from
GuideSpark pursuant to order forms or Statements of Work executed by GuideSpark and Company referencing this Agreement,
substantially in the form of Exhibit A("Order Form(s)"). This MSA and any attachments or exhibits identified below will govern
purchases made by Company that reference this Agreement or this MSA.
ATTACHMENTS
1—_Ex:A-FmmvfiOrder-Form•i'-ko em L,9�OK ---
2. Ex. B:Service Level Agreement �� ����� ,
3. Ex. C:Support and Development Policy
4. Statement of Work No. 1 l(n N V
5. Addendum �
This Master Subscription Agreement has been accepted and agreed to by the Authorized Representative of each party on the
date stated below each signature:
City of Fort Worth GU N" .R K, INC.
1000 Throckmorton St. 13 Rd. uit
F ort Worth,TX,76102 Me A �2
By: By:
Name: 1 r ' r',\' Name: Christopher J. Krook
Title: �- Vu Title: VP of Finance and Administration
Date: d- 1 a'U '� Date: f ; ` D e C- f `�
1. Definitions. "Content" means data, including audio, video, multimedia, data,
"Affiliate" means an entity that, directly or indirectly, owns or text, images, and documents, that is provided by GuideSpark to
controls, is owned or is controlled by or is under common Company or accessed or collected by Company in connection with
ownership or control with Company. As used in this definition, Company use of the Professional Services or Software Service,
"control" means the power to direct the management or affairs of including without limitation all data, information or other materials
an entity,and"ownership"means the beneficial ownership of 50% that GuideSpark obtains from third parties and provides or
or more of the voting equity securities or other equivalent voting otherwise makes available to Company hereunder.
interests of the entity.
"Contractor' means any third party employed or retained by
"Authorized Representative" means an individual who has the Company to perform services on behalf of Company.
legal authority to bind the entity entering into this Agreement,
including the authority to bind any Affiliates that purchase a "Documentation" means any user manuals, reference guides,
Subscription pursuant to an Order Form under this Agreement. usage instructions and other descriptions related to the Software
Service provided by GuideSpark to Company or to any other users
"Company Data" means any data of any type that is provided by of the Software Service from time to time to explain the intended
Company to GuideSpark, including under Section 5.2. functionality of the Software Service and to assist in the use of the
Software Service.
"Compliance" means (i)with respect to the Software Service, that
the Software Service is performing in substantial conformance with "Intellectual Property Rights" means any and all right, title and
any criteria specified in the applicable Order Form, and (ii) with interest in and to any and all trade secrets, patents, copyrights,
respect to Professional Services deliverables("Deliverables"),that service marks,trademarks,know-how,trade names,rights in trade
the Deliverables substantially conform to any Acceptance criteria dress and packaging, moral rights, rights of privacy, publicity and
specified in the applicable Statement of Work("SOW"). similar rights of any type, including any applications,continuations
or other registrations with respect to any of the foregoing, under
GuideSpark, Inc.Master Subscription Agreement(rev. 1.22.2014)
WEIVED DEC 19 PA4,
the laws or regulations of any foreign or domestic governmental,
regulatory orjudicial authority. 2.6 General Restrictions. Company will not: (i) make the
Software Service or Content available to, or use any Software
"Professional Services" means the professional services and Service or Content for the benefit of, anyone other than Company
Training provided by GuideSpark as set forth in the applicable or Users; (ii) decompile, disassemble, or otherwise reverse
Order Form or SOW. engineer the Software Service(except to the extent that applicable
law prohibits or restricts reverse engineering restrictions); (iii),sell,
"Software Service" means the online software-as-a-service resell, rent, lease, or distribute the Software Service; (iv) use the
product(s) described in the Order Form, including any associated Software Service (or any portion thereof) for time sharing
off line components and all related Documentation. purposes; (v) copy the Software Service or any part, function,
feature or user interface thereof;(vi)frame or mirror any part of the
"Subscription" means a subscription to the Software Service and Software Service or Content, other than framing on Company's
Support. own intranet or otherwise for your own internal business purposes
as permitted by this Agreement; (vii)access any Software Service
"Subscription Term" means the term of a Subscription as set forth or Content to build a competitive product or service; (viii) create
in the applicable Order Form. any derivative works based on the Software Service or Content,or
(ix) remove any copyright or proprietary notices contained in the
"Support" means the technical support services provided by Software Service.
GuideSpark as further described in Exhibit B (Service Level
Agreement)and Exhibit C (Support and Development Policy). 2.7 GuideSpark Service Providers. Company agrees and
acknowledges that GuideSpark engages certain service provider
"Training"means the training services provided by GuideSpark as firms, currently in the United States, Canada, United Kingdom,
set forth in the applicable Order Form. Japan, Mexico, and Costa Rica, to assist in the support and
development of the Software Service. Company Data and User
"User" means an individual who is authorized by Company to use Data reside only in the United States on approved and secured
the Software Service. Users may include but are not limited to systems. No Company Confidential Information will be stored,
Company employees, consultants, Contractors and agents, and transmitted, or accessed, at, in, or through a site located outside
specific individuals authorized by Company. of the United States without the advance written consent of
Company.
"User Data"means any data of any type that is provided by a User
to GuideSpark in connection with use of the Software Service. 3. License and Ownership of Intellectual Property.
2. Software Service. 3.1 GuideSpark License. GuideSpark hereby grants
Company a worldwide, non-exclusive,non-transferable(except as
2.1 Provision of Software Service. Users may access and provided for in Section 13.1 (Assignment))license,for the relevant
use the Software Service for Company's internal business Subscription Term,to use any Content provided by GuideSpark to
purposes. Company for Company's internal business purposes subject to the
restrictions set forth in this Section.
2.2. Orders. Each Order Form will be substantially in the form
attached as Exhibit A and will incorporate by reference the 3.2 Company License. Company hereby grants GuideSpark
provisions of this Agreement as though those provisions were set a worldwide, royalty-free, non-exclusive, non-transferable (except
forth therein in their entirety. as provided for in Section 13.1 (Assignment)) license for the
relevant Subscription Term, to use any Company Data and User
2.3 Company Responsibilities. Company shall (i) be Data for the purposes of creating and providing the Professional
responsible for Users' compliance with the GuideSpark Terms of Services and Software Service.
Use (available at http://app.guidespark.com/tou) and this
Agreement, (ii) use commercially reasonable efforts to prevent 3.3 Ownership of Intellectual Property. GuideSpark and its
unauthorized access to or use of the Software Service, and notify licensors will retain ownership of all Intellectual Property Rights in
GuideSpark promptly of any such unauthorized access or use,and the Professional Services and Software Service. Notwithstanding
(iii) use the Software Service only in accordance with any the foregoing, as between GuideSpark and Company, Company
Documentation provided by GuideSpark and applicable laws and owns all right, title and interest (including all Intellectual Property
government regulations. Rights) in and to any Company software, Company systems,
Company Data, Company Confidential Information, Company
2.4. Login Information. If Company requests that GuideSpark logos or other Company materials provided by Company to
create a login ID and password for Users to access the Software GuideSpark or otherwise accessed by GuideSpark in connection
Service ("Login Information"), Company is responsible for all with this Agreement. GuideSpark will also own all right, title and
activity occurring under Users' Login Information, and shall keep interest in and to any Content that GuideSpark custom creates,
all Login Information confidential and not share Login Information develops or otherwise delivers to Company in connection with the
with third parties. GuideSpark has no obligation or responsibility Professional Services or Software Service hereunder, and hereby
with regard to use, distribution, disclosure, or management of provides Company with a worldwide, non-exclusive, non-
Login Information. transferable license to use those customized portions of the
Content for Company's internal business use for the relevant
2.5 Service Updates. GuideSpark(a) may,from time to time, Subscription Term.
modify or update the Software Service, and (b) represents that
those modifications or updates will not materially decrease the 3.4 Reservation of Rights. Subject to the limited rights
functionality of the Software Service. Company agrees that those granted hereunder, GuideSpark and its licensors reserve all of
modifications or updates will not constitute a breach of this its/their right, title and interest in and to the Content, Software
Agreement. Service and Professional Services, including all of GuideSpark's
GuideSpark, Inc.Master Subscription Agreement(rev. 1.22.2014)
and GuideSpark's licensors'Intellectual Property Rights. No rights Order Form or SOW, GuideSpark may increase price accordingly
are granted to Company except as expressly set forth herein. upon written notice. That price increase will be effective upon the
commencement of the upcoming renewal term,or upon ninety(90)
4. Fees. days,whichever is sooner.
4.1 Invoices. The applicable Order Form (or, in the case of 5. Education and Third Party Links.
Professional Services,SOW)will set forth the fees for the Software
Service and the Professional Services. GuideSpark will invoice 5.1 Education Only Solution. Company acknowledges that:
Company in advance and otherwise in accordance with the (i) THE PROFESSIONAL SERVICES AND SOFTWARE
relevant Order Form or SOW. Unless otherwise stated in the SERVICE ARE NOT INTENDED TO BE LEGAL,TAX,FINANCIAL
Order Form or SOW, invoiced charges are due net 30 days from ADVICE OR ADVICE OF ANY KIND; GUIDESPARK IS NOT A
the invoice date. Both parties are responsible for maintaining FINANCIAL PLANNER, BROKER OR TAX ADVISOR; (ii) the
complete and accurate billing and contact information. At a Software Service is for educational purposes only and should not
minimum,each invoice will identify:(i)this MSA,(ii)the applicable be considered personalized financial advice;(iii) the financial and
Order Form or SOW, (iii) the applicable Subscription Term, (iv) investment strategies presented in the Software Service were
name and description of the Software Service, and (v) the total prepared without regard to any particular User's investment
dollar amount owed. All fees paid hereunder are non-refundable objectives or financial situation, and may not be suitable for
unless this Agreement is terminated as mutually agreed under everyone; (iv) each User's financial situation is unique, and any
Section 6.2 or finally adjudicated under Section 6.2. information or advice obtained through the Software Service may
4.2 Expenses. Company will not be responsible for any not be appropriate for a particular User's situation; and (v) before
implementing any financial decisions or strategies, each User
expenses incurred by GuideSpark unless (i) the relevant Order should consider obtaining additional information and advice from
Form or SOW so provides, or (ii) reimbursement for any such their accountant or other financial advisers who are fully aware of
expenses has been approved in advance in writing by Company. their individual circumstances. GuideSpark will not be responsible
for updating or modifying Content during any applicable
4.3 Payment;Taxes. Unless otherwise stated, GuideSpark's Subscription Term to reflect changes in applicable laws and
fees do not include any taxes, levies, duties or similar regulations, but will only make those changes after the specific
governmental assessments of any nature,including but not limited written request of Company and based on information provided to
to value-added,sales,use or withholding taxes,assessable by any GuideSpark by Company.
governmental body (collectively, "Taxes"). Company is
responsible for paying all Taxes associated with its purchases 5.2. Links. At Company's request, GuideSpark may provide
hereunder. If GuideSpark has the legal obligation to pay or collect links to other Web sites or resources as part of the Software
Taxes for which Company is responsible under this paragraph,the Service. GuideSpark is not responsible, and will not be liable,for
appropriate amount will be invoiced to and paid by Company, the contents, products or services on any third party site, and the
unless Company provides GuideSpark with a valid tax exemption inclusion of any link does not imply that GuideSpark endorses
certificate authorized by the appropriate taxing authority. For those third party sites.
clarity, GuideSpark is solely responsible for taxes assessable
against it based on its income,property and employees. 6. Term and Termination.
4.4. Overdue Charges. If any charges are not received from 6.1 Term.This Agreement is effective as of the date of the
Company by the due date, then upon written notice from Agreement and continues until all Subscriptions granted in
GuideSpark' to Company, any such charges may accrue late accordance with this Agreement and all SOWs entered into under
interest at the rate of 1.5% of the outstanding balance per month, this Agreement have expired or been terminated, unless
or the maximum rate permitted by law,whichever is lower,from the terminated earlier in accordance with this Section 6. Each
date that payment was due until the date paid. Subscription commences on the start date specified in the
4.5. Suspension of Service and Acceleration. If any amount applicable Order Form and continues for the Subscription Term
owing by Company under this Agreement is thirty (30) or more specified therein. Unless otherwise specified in the applicable
Order Form,the initial term for Subscription Products is one(1)
days overdue,GuideSpark may,without limiting its other rights and year from the subscription start date contained in the applicable
remedies, accelerate Company's unpaid fees so that all such Order Form and will automatically renew thereafter,at
obligations become immediately due, and suspend the Software GuideSpark's then-current rates,for one(1)year successive
Service and Professional Services to Company until those terms(renewal terms)after the initial term unless either party
amounts are paid in full. provides written notice to the other party of an intent to terminate
4.6. Payment Disputes.GuideSpark will not exercise its rights the Agreement ninety(90)days prior to the commencement of a
renewal term,in which event that termination will be effective
under Section 4.4 (Overdue Charges) or 4.5 (Suspension of upon the expiration of the then-current term.
Service and Acceleration) if the applicable charges are under
good-faith dispute and Company is cooperating diligently to 6.2 Termination for Cause. Either party may terminate this
resolve the dispute. Agreement if the other party fails to cure any material breach of
4.7. Fee Increases. Upon ninety 90 da s'written notice riot this Agreement within thirty (30) days after written notice of that
p y( ) y p breach.
to the commencement of a renewal term, GuideSpark may
increase the rates charged on any Order Form or SOW purchased 6.3 Not Exclusive Remedy. Termination is not an exclusive
hereunder. That price increase will not exceed the greater of(a) remedy and the exercise by either party of any remedy under this
the Consumer Price Index applicable to the Software Service, or Agreement will be without prejudice to any other remedies it may
(b)five percent(5%),and that price increase will be effective upon have under this Agreement, by law,or otherwise.
commencement of that upcoming renewal term. If Company
exceeds the number of Permitted Users set forth in the applicable
GuideSpark,Inc.Master Subscription Agreement(rev. 1.22.2014)
6.4 Survival.Sections 3.3,4, 5.1,6.4, 7, 8, 9, 10, 11,and 13 GUIDESPARK DISCLAIMS ALL OTHER WARRANTIES,
will survive any termination or expiration of this Agreement. WHETHER EXPRESS OR IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
7. Representations and Warranties. GuideSpark MERCHANTABILITY OR FITNESS FOR A PARTICULAR
represents and warrants as follows: PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING,
7.1 General Warranties. GuideSpark has with respect to this GUIDESPARK DOES NOT WARRANT OR REPRESENT THAT
Agreement and each Order Form and SOW (i) all requisite legal THE SOFTWARE SERVICE WILL BE CONTINUOUS, SECURE,
and corporate power to execute,deliver and perform its obligations RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-
under those agreements; (ii)taken all corporate action necessary FREE, OR THAT GUIDESPARK'S SERVERS AND SOFTWARE
for the authorization,execution and delivery of those agreements; ARE FREE OF VIRUSES OR OTHER HARMFUL COM
(iii) no agreement or understanding with any third party that PONENTS, OR THAT GUIDESPARK'S SECURITY
interferes with orwill interfere with its performance of its obligations PROCEDURES WILL PREVENT THE LOSS OR ALTERATION
under those agreements; (iv)obtained and will maintain all rights, OF, OR IMPROPER ACCESS TO, INFORMATION OR
approvals and consents necessary to perform its obligations and CONTENT BY THIRD PARTIES.
grant all rights and licenses granted to Company under those
agreements; and (v) taken all action required to make those 8. Company's Representations and Covenants. The
agreements legal,valid and binding obligations of GuideSpark. Company (a) represents that it is an entity duly organized and
validly existing under the laws of its jurisdiction of organization and
7.2 Software Service Performance Warranty. The Software that it has all requisite legal and corporate power to execute,
Service is and will be in Compliance. GuideSpark will provide all deliver and perform its obligations under this Agreement and each
commercially reasonable services necessary to enable Order Form and SOW;(b)represents that it is the owner, licensor,
GuideSpark to comply with the warranties set forth in this or authorized user of all Company Data; and (b) covenants that it
Agreement. will not upload, record, publish, post, link to, or otherwise transmit
or distribute Company Data that: (i) infringes or violates the
7.3 Compliance with Laws. GuideSpark's business and copyright, patent, trademark, service mark, trade name, trade
performance under this Agreement is and will be in compliance secret, or other intellectual property rights of any third party or
with all applicable federal, state and local laws and government GuideSpark, or any rights of publicity or privacy of any party; (ii)
rules and regulations. contains any viruses, Trojan horses, worms, time bombs, or any
other similar software, data, or programs that may damage,
7.4 Non-Infringement. To GuideSpark's knowledge, neither interfere with,surreptitiously intercept,or expropriate any system,
the Software Service nor any Deliverable will infringe, violate or data, Information, or property; or (iii) violates any law, statute,
misappropriate the Intellectual Property Rights of any party ordinance,or regulation.
anywhere in the world where GuideSpark conducts business.
Furthermore, GuideSpark is not aware of any pending or 9. Limitation of Liability.
threatened claims, suits, actions, or charges pertaining to the 9.1 NEITHER PARTY WILL BE LIABLE FOR ANY
Software Service or any Deliverable.GuideSpark agrees that it will INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
promptly notify Company if GuideSpark becomes aware of any CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
actual or potential claims,suits,actions,allegations or charges that LOST PROFITS), REGARDLESS OF THE FORM OF ACTION,
is reasonably likely to affect either party's ability to fully perform its WHETHER IN CONTRACT,TORT(INCLUDING NEGLIGENCE),
duties or to exercise its rights under the Agreement. STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF
7.5 No Harmful Material. Company's use or access of the THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
Software Service or any Deliverable will not cause any viruses,
worms, time bombs,Trojan horses or other harmful, malicious or 9.2 NOTWITHSTANDING ANY OTHER PROVISION OF
destructive code to be installed or introduced on Company's THIS AGREEMENT, THE PARTIES' ENTIRE LIABILITY UNDER
computer, telecommunication or other information systems THIS AGREEMENT WILL NOT EXCEED THE AMOUNT
("Systems"). ACTUALLY PAID BY COMPANY TO GUIDESPARK UNDER
THIS AGREEMENT IN THE TWELVE (12) MONTHS
7.6 No Disruption. Except to the extent necessary for PRECEDING A CLAIM FOR DAMAGES.
Scheduled Maintenance, and subject to the provisions of Section
4.5, GuideSpark, its agents or employees or anyone acting on its 9.3 THE PROVISIONS OF THIS SECTION 9 WILL NOT
behalf, will not disable or interfere, in whole or in part, with APPLY TO ANY CLAIM UNDER SECTION 10
Company's use of or access to the Software Service, Company (INDEMNIFICATION) SECTION 11 (CONFIDENTIAL
Data or any software, hardware, Systems or data owned, utilized INFORMATION).
or held by Company without the written permission of a corporate
officer of Company. 9.4 The parties agree that the limitations specified in this
7.7 Services Warranty. GuideSpark will render Professional Section 9 will survive and apply even if any limited remedy
Services in a professional manner consistent with industry specified in this Agreement is found to have failed of its essential
standards, and all personnel providing Professional Services will purpose.
be appropriately trained and qualified. Each warranty applying to 10. Indemnification.
the "Software Service" under this Agreement will apply to any
Deliverable provided as part of Professional Services unless
otherwise specified in the applicable Order Form. 10.1 Indemnification by GuideSpark. If a third party makes a
claim against Company, its Affiliates or their respective
7.8 Warranty Disclaimer. EXCEPT AS EXPRESSLY Contractors, officers, directors and employees (the "Company
PROVIDED IN THIS AGREEMENT, THE PROFESSIONAL Indemnitees")that the Software Service or a Deliverable,except to
SERVICES AND THE SOFTWARE SERVICE ARE PROVIDED the extent that the claim includes any Company Data(collectively,
WITH NO OTHER WARRANTIES OF ANY KIND, AND the "Software") infringes its intellectual property rights (a
GuideSpark,Inc.Master Subscription Agreement(rev. 1.22.2014)
"Company Claim"), GuideSpark will defend the Company prompt written notice of any such GuideSpark Claim, (b) permits
Indemnitee against the Company Claim and indemnify the Company to control and direct the defense or settlement of any
Company Indemnitee from the damages, liabilities, costs and such GuideSpark Claim,and(c)provides Company all reasonable
expenses awarded by the court to that third party or the settlement assistance (at the expense of Company) in connection with the
agreed to by GuideSpark,subject to the provisions of section 10.2. defense or settlement of any such GuideSpark Claim; except that
failure to provide the notice specified in (a) above will relieve
10.2 Process and Remedies. A Company Indemnitee may Company from its liability or obligation hereunder only to the extent
obtain indemnification under Section 10.1 from GuideSpark for a of any material prejudice directly resulting from that failure; and
Company Claim on condition that the Company Indemnitee (a) provided,further,that Company will not agree to any settlement or
gives GuideSpark prompt written notice of any such Company compromise under (b) above that would require the GuideSpark
Claim, (b)permits GuideSpark to control and direct the defense or Indemnitee to make any payments, bear any obligations or admit
settlement of any such Company Claim, and (c) provides any liability unless Company obtains the GuideSpark Indemnitee's
GuideSpark all reasonable assistance (at the expense of prior written approval,which shall not be unreasonably withheld.
GuideSpark) in connection with the defense or settlement of any
such Company Claim; provided that failure to provide the notice 11. Confidential Information.
specified in (a) above will relieve GuideSpark from its liability or
obligation hereunder only to the extent of any material prejudice 11.1 Confidential Information. Each party("Receiving Party")
directly resulting from that failure; and provided, further, that agrees that all code, inventions, know-how, business, technical
GuideSpark will not agree to any settlement or compromise under and financial information it obtains from the disclosing party
(b)above that would require the Company Indemnitee to make any ("Disclosing Party") constitute the confidential property of the
payments, bear any obligations or admit any liability unless Disclosing Party("Confidential Information"),on condition that(i)it
GuideSpark obtains the Company Indemnitee's prior written is identified in writing as confidential at the time of disclosure,(ii)if
approval, which shall not be unreasonably withheld. A Company disclosed verbally, is identified as confidential in writing within
Indemnitee may participate in the defense of any Company Claims thirty (30) days of the disclosure; or (iii) should have been
by counsel of its own choosing, at its cost and expense. Should reasonably known to the Receiving Party to be Confidential
the Software become, or in GuideSpark's opinion be likely to Information.The terms of this Agreement,Company Data and any
become, the subject of a Company Claim, GuideSpark will, at not previously publicly disclosed information about Company's
GuideSpark's sole expense: (i) procure for Company the right to business, finances, information systems, software or technology
continue to use the Software as contemplated hereunder, (ii) provided by Company to GuideSpark under this Agreement will be
modify the Software to eliminate any Company Claim that might deemed Confidential Information of Company without any marking
result from its use hereunder, on condition that the Software or further designation. Except as expressly authorized in this
remain in Compliance, or (iii) replace the Software with equally Agreement,the Receiving Party will hold in confidence and not use
suitable, compatible and functionally equivalent non-infringing or disclose any Confidential Information. The Receiving Party's
software services subject to Company's approval,which shall not nondisclosure obligation will not apply to information that the
be unreasonably withheld,at no additional charge to Company. Receiving Party can document: (i)was rightfully in its possession
10.3 Exceptions. Notwithstanding the foregoing, GuideSpark or known to it prior to receipt of the Confidential Information; (ii) is
or has become public knowledge through no fault of the Receiving
will have no obligations under this Section 10 to the extent any
infringement claim is based upon or arising out of(i) a Company Party; (iii) is rightfully obtained by the Receiving Party from a third
party without breach of any confidentiality obligation; (iv) is
Indemnitee's modification or alteration to the Software Service not independently developed by employees of the Receiving Party
approved by GuideSpark, (ii) a Company Indemnitee's who had no access to such information; or (v) is required to be
combination or use of the Software Service with products or disclosed pursuant to a regulation, law or court order (consistent
services not supplied by GuideSpark or approved in writing by with Section 11.3). The Receiving Party acknowledges that
GuideSpark in advance of that combination, (iii) a Company disclosure of Confidential Information may cause substantial harm
Indemnitee's use of the Software Service not in accordance with for which damages alone may not be a sufficient remedy, and
the applicable Documentation,to the extent provided in writing by therefore that upon any such disclosure by the Receiving Party,
GuideSpark,or outside the scope of any license granted under this the Disclosing Party may seek appropriate equitable relief in
Agreement, (iv) components of the Software Service that are addition to whatever other remedies it might have at law.
developed in accordance with Company's specifications, (v)
Company Data or User Data or (vi) Company's breach of this
Agreement. This Section 10 provides the Company Indemnitee's 11.2 Return of Materials. Upon termination of the Agreement
exclusive remedy for any infringement claims or damages. for any reason,or upon earlier written request by Disclosing Party,
Receiving Party will promptly destroy or(if specifically requested)
10.4 Indemnification by Company. If a third party makes a return to Disclosing Party all documents or materials of any nature
claim against GuideSpark, its Affiliates or their respective in Receiving Party's possession,custody or control (regardless of
Contractors, officers, directors and employees (the "GuideSpark the media in which those documents or materials are stored)that
Indemnitees") that Company Data or User Data (collectively, the have been furnished by Disclosing Party to Receiving Party except
"Data") infringes its intellectual property rights or violates any law as required by applicable law.
or regulation, or if any User makes a claim against a GuideSpark
Indemnitee that in any way relates to that User's acting or failing to
act on a financial decision or strategy or is in any other way related
to or in connection with or as a result of that User's access to the
Professional Services or Software Service(a"GuideSpark Claim"),
Company will defend the GuideSpark Indemnitee against the
GuideSpark Claim and indemnify the GuideSpark Indemnitee from
the damages,liabilities,costs and expenses awarded by the court
to the third party or the settlement agreed to by Company, on
condition that the GuideSpark Indemnitee (a) gives Company
GuideSpark,Inc.Master Subscription Agreement(rev. 1.22.2014)
11.3 Compelled Disclosure.The Receiving Party may disclose express written consent and direction of Company except as
Confidential Information of the Disclosing Party to the extent required by applicable law.
compelled by law to do so, provided the Receiving Party gives the
Disclosing Party prior notice of the compelled disclosure (to the 12,2,4 Further Assurance. At Company's request, GuideSpark
extent legally permitted) and reasonable assistance, at the will execute and abide by the terms of any agreements as may be
Disclosing Party's cost, if the Disclosing Party wishes to contest required by applicable law.
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 13. General.
Disclosing Party is not contesting the disclosure, the Disclosing
Party will reimburse the Receiving Party for its reasonable cost of 13.1 Assignment. This Agreement will bind and inure to the
compiling and providing secure access to that Confidential benefit of each party's permitted successors and assigns. Neither
Information. party will assign this Agreement (or any part thereof) without the
prior written consent of the other party,except that either party may
12. Access and Data Security. assign this Agreement without consent in connection with a
merger, reorganization, acquisition or other transfer of all or
12.1 Access to Systems. Access, if any, to Company's substantially all of its assets and/or voting securities. Any attempt
Systems is granted solely to facilitate the business relationship to transfer or assign this Agreement except as expressly
described in this Agreement, and is limited to those specific authorized under this Section 13.1 will be null and void.
Systems, time periods, and personnel as are separately
designated by Company in writing from time to time. Access is 13.2 Severability. If any provision of this Agreement is
subject to business control and information protection policies, adjudged by any court of competent jurisdiction to be
standards, and guidelines as may be provided in writing by unenforceable or invalid, that provision will be interpreted to fulfill
Company to GuideSpark. its intended purpose to the maximum extent permitted by
12.2 Data Protection applicable law,and the remaining provisions of this Agreement will
12.2.1 Company Data. GuideSpark will not: (i) use Company continue in full force and effect.
Data except to the extent necessary to provide the Software 13.3 [Reserved].
Service or Professional Services; (ii) copy, modify, create
derivative works of or disclose Company Data (except that 13.4 Notices. Notices under this Agreement will be sent to the
GuideSpark may transfer Company Data to its hosting service to addresses provide in the signature block of this Agreement, or to
the extent necessary to provide the Software Service or those others as either party may provide in writing. These notices
Professional Services);or(iii)commercially exploit Company Data will be deemed received at those addresses: (i)upon receipt if by
or allow it to be commercially exploited on GuideSpark's behalf. personal delivery; (ii)upon receipt if sent by certified or registered
12.2.2 Usage Data. Notwithstanding anything to the contrary set U.S. Mail(return receipt requested); (iii)one(1)day after it is sent
if by next day delivery by a major commercial delivery service; or
forth in this Agreement, GuideSpark may aggregate and
shall ft
the first business day after sending email (provided email
anonymize usage data in a manner that cannot be identified as or all not be sufficient for notices of termination ion or an indemnifiable
in any way related to Company or any User,and use and disclose sh
that aggregated information. claim).
12.2.3 Safeguards. GuideSpark will implement and maintain 13.5 Amendments;Waivers. No supplement, modification,or
commercially reasonable administrative, physical and technical amendment of this Agreement will be binding unless executed in
safeguards that prevent any unauthorized use, access, writing by an Authorized Representative of each party to this
processing, destruction, loss, alteration, or disclosure of any Agreement. No waiver will be implied from conduct or failure to
Company Data or User Data as may be held or accessed by enforce or exercise rights under this Agreement, nor will any
GuideSpark. GuideSpark shall utilize Company Data and User waiver be effective unless in a writing signed by an Authorized
Data in accordance with the Privacy Policy published on Representative on behalf of the party claimed to have waived.
GuideSpark's website.
13.6 Entire Agreement. This Agreement(including all exhibits
12.2.4 Notification of Security Breach.GuideSpark will promptly and referenced Order Forms and SOWs) is the complete and
notify Company following discovery of any suspected breach or exclusive statement of the mutual understanding of the parties and
compromise of the security, confidentiality, or integrity of any supersedes and cancels all previous written and oral agreements
Company Data or User Data. Written notification provided under and communications relating to the subject matter of this
this paragraph will include a brief summary of the available facts, Agreement. With the exception of the GuideSpark Terms of Use
the status of GuideSpark's investigation, and if known and referenced in Section 2.3 and the Privacy Policy published on
applicable,the potential number of persons affected by release of GuideSpark's website, contract terms and conditions included in
data relating to such person ("Affected Persons"). If applicable, any "click wrap," "browsewrap," "shrinkwrap," or other license
upon written request from Company, GuideSpark agrees to notify agreement that accompanies the Software Service provided under
the Affected Persons regarding any security breach in a any Order Form resulting from this Agreement will be void and
commercially reasonable form approved in writing by Company. have no effect unless Company specifically agrees to those
These notices will be delivered within a reasonable time at license terms in writing.
Company's direction. All costs associated with any security
breach, including but not limited to the costs of the notices to 13.7 Independent Contractors. The parties to this Agreement
Affected Persons, will be the sole responsibility of GuideSpark. are independent contractors. This Agreement creates no
GuideSpark agrees that it will not communicate with any third relationship of partnership,joint venture,employment,franchise or
party, including, but not limited to the media, consumers and agency between the parties. Neither GuideSpark nor any of its
Affected Persons regarding any security breach without the employees or subcontractors will be eligible for any benefits
normally provided by Company to its employees.Neither party will
GuideSpark,Inc.Master Subscription Agreement(rev. 1.22.2014)
have the power to bind the other or incur obligations on the other party unaffected by the event will have the right to terminate this
party's behalf without the other party's prior written consent. Agreement without cost or liability upon notice to the Affected Party
and to receive a refund of all pre-paid fees for any performance not
13.8 Force Majeure. Either party's performance of any part of yet delivered.
this Agreement will be excused to the extent that it is unable to
perform due to natural disasters,terrorism,riots,insurrection,war, 13.9 Counterparts.This Agreement may be executed in two or
extraordinary governmental action, material labor strikes more counterparts,each of which will be considered an original but
(excluding strikes by the party's own workforce), or any other all of which together will constitute one agreement.
cause that is beyond the reasonable control of that party (the
"Affected Party"), not avoidable by reasonable due diligence, and 13.10 Order of Precedence. If a term in an Order Form or SOW
on condition that the cause is not attributable to the Affected Party conflicts with a term in this MSA, the provisions of this MSA will
(a "Force Majeure Event"). Upon the occurrence of a Force prevail unless the relevant Order Form or SOW specifically
Majeure Event, the Affected Party will promptly notify the other references this MSA and states that the term in the relevant Order
party of the Force Majeure Event, including an estimate of its Form or SOW will prevail.
expected duration and probable impact on the performance of the
Affected Party's obligations under this Agreement. In addition,the 13.11 Effectiveness; Date. This Agreement will become
Affected Party will (i) exercise commercially reasonable efforts to effective when all parties have signed it. The date of this
mitigate damages to the other party and to overcome the Force Agreement will be date this Agreement is signed by the last party
Majeure Event and(ii)continue to perform its obligations under this to sign it (as indicated by the date associated with that party's
Agreement to the extent it is able. If any failure or delay caused by signature).
a Force Majeure Event continues for ten (10) days or longer, the
GuideSpark,Inc.Master Subscription Agreement(rev.1.22.2014)
guldesparlt,,,
EXHIBIT B
SERVICE LEVEL AGREEMENT
Service Availability Objective. GuideSpark will make commercially reasonable efforts to provide monthly Service Availability of 98%
("Service Availability Objective"). Service Availability is defined as the time that the Service is capable of receiving, processing, and
responding to requests, excluding (a) Scheduled Maintenance, (b) Company Error Incidents, and (c) Force Majeure Event. Service
Availability is calculated as a percentage by dividing the number of minutes the Software Service is available during the applicable month
by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance, Company Error Incidents, and
Force Majeure Event.
Definitions.
"Scheduled Maintenance" is defined as making changes to the Software or cloud infrastructure during which users are prevented from
using the Software Service. Scheduled Maintenance work will primarily occur during pre-defined maintenance windows, on Fridays from
8:00pm PST to 12:00am PST, and on Saturdays from 7:00pm to 11:00pm PST. Company will generally receive written notice five (5)
days in advance of any Scheduled Maintenance, however GuideSpark reserves the right to perform Scheduled Maintenance during the
pre-defined maintenance windows described in this Exhibit B with a minimum of thirty (30) minutes' notice. GuideSpark will provide
Company ten (10) days' prior notice if maintenance is expected to exceed the four (4) hour period. Scheduled Maintenance may
infrequently occur outside the pre-defined windows. In that case, GuideSpark will provide Company at least five(5)days' notice.
"Company Error Incident" is defined as any Software Service unavailability resulting from applications, Content, or equipment provided
by Company or a User,or the acts or omissions of a User.
"Force Majeure Event"is defined in Section 13.8 of the MSA.
Remedy for Failure to Achieve Service Availability Objective.At the written request of the Company, and no more than four(4)times per
calendar year, GuideSpark will calculate specific Service Availability during each of the three (3)calendar months preceding Company's
request,and provide a report to Company. In the event that the Service Availability Objective was not met in a given month,then for each
day in that month that the duration of the Service unavailability exceeds four(4) continuous hours, the Company may receive a one (1)
day credit for the Software Service (a "Service Credit"), subject to the Agreement and requirements of this Exhibit B. For purposes of
calculating the Service Availability Objective, GuideSpark will only consider the Software Service unavailable if the Company opened a
trouble ticket relating to the Service unavailability with the GuideSpark customer support department within three(3)business days of the
Service unavailability. To obtain a Service Credit for GuideSpark's failure to meet the Service Availability Objective, the Company must
request that credit in writing no later than ten (10)business days following receipt of the report. In the event of a conflict between the data
in the Company's records and GuideSpark's records, the data in GuideSpark's records shall prevail.Any Service Credits due hereunder
will be applied to the Company's account at the conclusion of the then-current Subscription Term, by extending that Subscription Term
by the length of the Service Credits. Notwithstanding the foregoing, if the Software Service was purchased on a monthly or pay-per use
basis, Company will receive no Service Credits. The Service Credits offered in this Exhibit B shall be Company's sole and exclusive
remedy for any failure of GuideSpark to meet the Service Availability Objective.Any unused Service Credits will expire upon termination
of this Agreement.
GuideSpark Confidential- 2014
guldespark.,,
EXHIBIT C
SUPPORT AND DEVELOPMENT POLICY
Definitions.
"Annual Maintenance" is defined as the work hours GuideSpark dedicates to maintaining and updating Content during the Subscription
Term.
"Development Time"is defined as the work hours GuideSpark dedicates to producing Content as part of Company's Subscription.
"Reviews" is defined as the review or revisions conducted by Customer of Content developed by GuideSpark as part of the Software
Service.
"Subscription Category"is defined as the class of Software Service subscribed to by Company,as set forth in the applicable Order Form(s).
Subscription Categories include Category A, Category B and Category C, and are further defined as either"Lite"or"Premium".
"Video Run Time"is defined as the length of a given video that is part of the Software Service.
Support. During each Subscription Term, GuideSpark will provide Company email assistance at support @guidespark.com for general
advice and technical support, as well as technical assistance and remediation for operational issues as further described below from 8
am -5 pm PST, Monday through Friday, excluding national holidays. Support response times are based on the severity level of each
issue, and are described generally below.
Severity Description Response
1 Urgent: Entire service is unavailable and unusable, and no operations can be completed. Response: 1 hour
Resolution:8 hours
2 High: Major functionality is not available or service is seriously degraded, and no workaround Response:8 hours
is available. This includes content that does not play or data that appear corrupted. Resolution:2 business
days
3 Medium:A program error where a suitable workaround exists or the feature is minor and is not Response: 1 business
required for the User to use the site. Medium severity issues may deferred at GuideSpark's day
discretion. Resolution:5 business
days
4 Low: No impact on the User's experience. Examples include confusing text or a missing Response:2 business
graphic on a minor page. Low severity issues may deferred at GuideSpark's discretion. days
Resolution:At
GuideSpark's discretion
Training. If set forth in the applicable Order Form, GuideSpark will, upon Company's request, provide Training upon the terms described
in that Order Form.
Professional Services. Professional Services, if any,shall be provided under an Order Form or SOW describing the work to be performed,
fees and any applicable milestones, dependencies and other technical specifications or related information and be signed by both parties
before GuideSpark will commence work.
Reviews Video Run Time, Development and Annual Maintenance. The number of Company Reviews and the length of Video Run Time
will be limited based on the Software Service's Subscription Category,as set forth below.The Software Service will include Development
Time during the initial Subscription Term, and Annual Maintenance during both the initial and renewal Subscription Terms, each capped
at hourly limits based on the Software Service's Subscription Category. In the event that Company requires Development Time or Annual
Maintenance that exceeds the limits of its Subscription Category("Additional Work"),GuideSpark shall notify Company that the Additional
Work is necessary, and will provide Company with notice before charging Company for that Additional Work. Company shall be invoiced
at GuideSpark's then-current hourly rate for each hour of Additional Work performed by GuideSpark. GuideSpark's limits on Edits,
Reviews,Video Run Time, Development Time and Annual Maintenance are set forth in the table below.
GuideSpark Confidential-2014
guidesparlt,
Lite Customization Premium Customization
Development
Employer Voice Script edits on up to 3 video chapters Custom script
Brand Designed to reflect your brand (logo, colors, Custom style guide
fonts)
Visual style/imagery Select from 2 visual style options Custom style guide
Visual edits on up to 3 video chapters Your choice of edits to visuals
Your choice of edits to on-screen copy Your choice of edits to on-screen copy
Voiceover Select from 5 GuideSpark voice talents Select from library of 7 voice talents
Reviews
Style Guide Lite 1 revisions
Script N/A(No pre-video script review) 3 revisions per script
Video 2 revisions per video(no sharing of script) 3 revisions per video
CAP on Development Time
Group A 10 hrs 20 hrs
Group B 15 hrs 25 hrs
Group C 20 hrs 30 hrs
CAP on Video Run Time
Groups A and B 6 mins 6 mins
Group C 8 mins 8 mins
CAP on Annual Maintenance
Group A 5 hrs 10 hrs
Group B 8 hrs 12 hrs
Group C 20 hrs 30 hrs
GuideSpark Confidential- 2014
guidesparit.,
CITY OF FORT WORTH STATEMENT OF WORK NO. 1
GuideSpark, Inc.("GuideSpark")and City of Fort Worth("City")have entered into a Master Subscription Agreement,dated as of December
12, 2014 (the "Agreement"), relating to the provision of Software Services by GuideSpark. This Statement of Work(or"SOW") is made
pursuant to the terms and conditions of the Agreement, including Exhibits B and C. In the event of an explicit conflict or inconsistency
between the Agreement and this SOW,the Agreement will control.Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Agreement.
1 This Statement of Work shall be effective for the term set forth below and describes GuideSpark's Services with respect to creation
of a performance management video library(the"Project").
1.1 1. Scope of Project
Services to be provided:
GuideSpark will create, host and manage an online HR communications site for City.This includes developing, managing and
updating customized multimedia Flash content similar to the demonstrations on the GuideSpark website.
The hosted site will include a management dashboard,the City of Fort Worth logo and related City of Fort Worth content as provided
to GuideSpark. Typically, end users will access the multimedia content via a hyperlink. No software platform is required to be
installed by the end user.
The analytic software is proprietary in nature and will be hosted with a third party(Amazon Web Services& Rackspace).
Deliverables to be provided, if any:
GuideSpark will furnish an annual subscription of a customized permformance management video library, including, but not limited
to the following titles:
Performance Management Overview, Performance Conversations for Employees, Performance Conversations for Managers.
GuideSpark will furnish the above named videos via a hosted microsite.
Target Project Schedule
Upon GuideSpark's receipt of all necessary deliverables (i.e.,style guide, relevant plan information, program information)from City,
delivery of customized videos typically can be expected within 8-12 weeks,provided that the City provides timely feedback and meets
intermediate project deadlines set forth by GuideSpark at the project kick-off call.
Project Manager/Key Personnel
After execution of the Agreement, GuideSpark will assign a Customer Service Manager("CSM")who will work with City of Fort Worth
personnel, manage internal GuideSpark resources/team and oversee implementation of the Project.
I
I
GuideSpark Confidential- 2014
�I
guldespark,
2. Project Fees and Expenses
Benefits Video Library
Product Description Start/Renewal Fee Type Annual Fees
Date
Performance Management Annual subscription includes ongoing 12/12/14- Annual
Overview hosting,video development and up to 12/12/15 Recurring $6,500
(C-034-13-1-1) 2 revisions to the video, no script
review.
Performance Conversations Annual subscription includes ongoing 12/12/14- Annual
For Employees hosting,video development and up to 12/12/15 Recurring $3,500
(A-039-13-1-1) 2 revisions to the video, no script
review.
Performance Conversations Annual subscription includes ongoing 12/12/14- Annual
for Managers hosting,video development and up to 12/12/15 Recurring $3,500
(A-038-13-1-1) 2 revisions to the video, no script
review.
TOTALS $13,500 per year
ONE TIME FEES
Software Service Description Fees(one-time)
Set Up Fee Platform Set U $0 Waived
PAYMENT
Total One-Time Fees Due on Effective Date: $0
Total Recurring Fees Due on Effective Date: $13,500
Total Fees Due on Effective Date: $13,500
INVOICE TO
Billing Address:
Attn:
PO Required on Invoice: []Yes or[] No
If yes, PO#:
Accounts Payable Email Alias:
Term
The initial term for Subscription Products is the period of time defined by the subscription start and end dates contained in this SOW and
will automatically renew thereafter, at GuideSpark's then-current rates,for one(1)year successive terms(renewal terms)after the initial
term unless either party provides written notice to the other party of an intent to terminate the Agreement ninety(90)days prior to the
commencement of a renewal term, in which event that termination will be effective upon the expiration of the then-current term.
This SOW has been accepted and agreed to by the Authorized Representative of each party on the date stated below each signature:
CriddeSpark Confidential- 2014
guldesparit.,
CITY OF FORT WORTH GUIDESPAFK INC.
1000 Thmckmorton St. 1350 i w Suite 201
Fort Worth,TX, 76102 Menl Pa 025
By: By:
Name: �cu� L`�Y� 1tS Name: �A 'LI r ul�.
U Title: Title: V
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Date: � � Date: ) � -
Fax No: h 7 - 3 7 Fax No: 866-611-6756
Email: '-)U5"-\. (kLoxa-s C'FUr�(7�)G�` -��� Email:
Primary User Contact
Primary User Email
Bill To Email
GuideSpark Confidential- 2014
FORT WORTH
ADDENDUM TO AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
GUIDESPARK, INC.
Title of Agreement: Master Subscription Agreement("the Agreement")
Name of Vendor: GuideSpark, Inc.
Agreement Number:
Term of Agreement: 12 months (initial term)
Notwithstanding any language to the contrary in the attached Agreement presented by GuideSpark, Inc.,
("Contractor") for hosted and HR and benefits video content ("services"), the City of Fort Worth
("City") and Contractor (collectively the "parties") hereby stipulate by evidence of execution of this
Addendum ("Addendum") below by a representative of each party duly authorized to bind the parties
hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the
Agreement as follows:
1. Insurance: The City is a governmental entity under the laws of the state of Texas and pursuant to
Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-
insured and therefore is not required to purchase insurance. To the extent the Agreement requires the City
to purchase insurance, the City objects to this provision and will provide a letter of self-insured status as
requested by Contractor.
2. Indemnity: To the extent the attached Agreement requires the City to indemnify or hold Contractor or
any third party harmless from damages of any kind or character, the City objects to these terms and any
such terms are hereby deleted from the Agreement and shall have no force or effect.
3. Attorneys' Fees, Penalties, and Liquidated Damages: To the extent the attached Agreement requires
the City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in
any amount, the City objects to these terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect.
4. [Intentionally Omitted]
5. Sovereign Immunity: Nothing herein constitutes a waiver of the City's sovereign immunity. To the
extent this Agreement requires the City to waive its rights or immunities as a government entity, such
provisions are hereby deleted and shall have no force or effect.
6. No Debt: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that
all obligations of the City hereunder are subject to the availability of funds. If such funds are not
appropriated or become unavailable, the City shall have the right to terminate this Agreement except for
those portions of funds which have been appropriated prior to termination.
7. Assignment: To the extent the Agreement addresses the right to assign any rights or interest in the
agreement to another party, such right of assignment shall be reciprocal, and neither party shall have the
right to assign or transfer any of its rights or interests in the Agreement without the express prior written
consent of the other party. However, the Contractor shall have the right to assign the Agreement to any
entity in which it is a recognized legal affiliate or subsidiary or which such entity obtains a majority
interest without the consent of the City. However, Contractor shall give the City at least thirty (30) days
written notice of any such assignment or transfer of interest.
8. Confidential Information: The City is a government entity under the laws of the State of Texas and all
documents held or maintained by the City are subject to disclosure under the Texas Public Information
Act. To the extent the Agreement requires that the City maintain records in violation of the Act, the City
hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall
have no force or effect. In the event the City is asked to disclose any GuideSpark confidential information
pursuant to the Texas Public Information Act, City shall provide GuideSpark with the advance written
notice required by the Texas Public Information Act.
9. Addendum Controlling: If any provisions of the attached Agreement, conflict with the terms herein,
are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of the City, the
corresponding terms in this Addendum shall control.
10. [Intentionally Omitted]
11. Insurance:
11.1 The Contractor shall carry the following insurance coverage with a company that is licensed to do
business in Texas or otherwise approved by the City:
I. Commercial General Liability
a. Combined limit of not less than $1,000,000 per occurrence; $2 million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella
Coverage in the amount of$2,000,000. Umbrella policy shall contain a follow-form provision and
shall include coverage for personal and advertising injury.
c. Defense costs shall be outside the limits of liability.
2. Automobile Liability Insurance covering any vehicle used in providing services under this
Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than
$1,000,000 per occurrence.
3. Professional Liability(Errors & Omissions) in the amount of$1,000,000 per claim and $1,000,000
aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount
CFW/Form Addendum
Page 2 of 4
required by statute.
5. Technology Liability(Errors & Omissions)
a. Combined limit of not less than$2,000,000 per occurrence; $2million aggregate or
(a) Coverage shall include, but not be limited to, the following:
(i) Failure to prevent unauthorized access
(ii) Unauthorized disclosure of information
(iii) Implantation of malicious code or computer virus
(iv) Fraud, Dishonest or Intentional Acts with final adjudication language
(v) Intellectual Property Infringement coverage, specifically including coverage for
intellectual property infringement claims and for indemnification and legal defense of any
claims of intellectual property infringement, including copyright or trade mark, brought
against the City for use of Deliverables, Software or Services provided by Contractor under
this Agreement.
Technology coverage may be provided through an endorsement to the Commercial General
Liability (CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all
other requirements. Any deductible will be the sole responsibility of the Contractor. Coverage
shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of
this Agreement. Coverage shall be maintained for the duration of the contractual agreement and
for two (2) years following completion of services provided. An annual certificate of insurance
shall be submitted to the City to evidence coverage.
11.2 General Insurance Requirements:
1. All applicable policies, except workers compensation, shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees, officers, officials,
agents, and volunteers in respect to the contracted services.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in
favor of the City of Fort Worth.
3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be
provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of
premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort
Worth, Texas 76102, with copies to the City Attorney at the same address.
4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas.
All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or
have reasonably equivalent financial strength and solvency to the satisfaction of Risk
Management. If the rating is below that required, written approval of Risk Management is
required.
5. Any failure on the part of the City to request required insurance documentation shall not constitute
a waiver of the insurance requirement.
CFW/Form Addendum
Page 3 of 4
6. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be
delivered to and approved by the City's Risk Management Division prior to execution of this
Agreement.
CITY OF FORT WORTH: G ID
By: By:
Na e: Christop Krook
Assistant City Manager VP, CFO
Date: � 'I-7 Date:
ATTEST: 1� 000 =
\ 9
By: o�
City S r ar s $ 4
C'P
., Z11
APPROVED AS TO FORM AND LEGALIF .
By: J l :��
Assistan City Attorney j65.\C,S y s s r 5
Contract Authorization:
M&C: 1��
Date Approved:
OFFICIAL RECORD
CFW/Form Addendum CITY SECRETARY
Page 4 of n WORTN7 WN
FORTWORTH
REQUEST TO WAIVE INSURANCE RECOMMENDATIONS
Services to be Provided: Animated videos on performance appraisal;Vendor will host on a microsite.
Vendor: GuideSpark
Contract Amount: $13,500 per year
Department: Performance Office
The Risk Management Division recommends that the City require certain insurance for
procurements or contracts for technology based services, including, but not limited to the following:
1. Software development
2. Software implementation and maintenance services
3. Software design
4. Hardware installation and/or maintenance
5. Internet based services
6. Data storage or transfer
7. E-Commerce
8. Technology based consulting services
The following language and coverage amounts are recommended for all technology based services -
contracts:
The Consultant shall carry the following insurance coverage with a company that is licensed to do
business in Texas or otherwise approved by the City:
1. Commercial General Liability
a. Combined limit of not less than$2,000,000 per occurrence; $4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and
Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-
form provision and shall include coverage for personal and advertising injury.
c. Defense costs shall be outside the limits of liability.
2. Automobile Liability Insurance covering any vehicle used in providing services under this
Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not
less than$1,000,000 per occurrence.
3. Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and
$1,000,000 aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the
amount required by statute.
5. Technology Liability (Errors & Omissions)
a. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and
Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-
form provision and shall include coverage for personal and advertising injury. The umbrella
policy shall cover amounts for any claims not covered by the primary Technology Liability
policy. Defense costs shall be outside the limits of liability.
(a) Coverage shall include, but not be limited to,the following:
(i) Failure to prevent unauthorized access
(ii)Unauthorized disclosure of information
(iii)Implantation of malicious code or computer virus
(iv)Fraud, Dishonest or Intentional Acts with final adjudication language
(v) Intellectual Property Infringement coverage, specifically including coverage for
intellectual property infringement claims and for indemnification and legal defense
of any claims of intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Consultant under this Agreement.
Technology coverage may be provided through an endorsement to the Commercial General
Liability (CGL) policy, a separate policy specific to Technology E&O, or an umbrella
policy that picks up coverage after primary coverage is exhausted. Either is acceptable if
coverage meets all other requirements. Technology coverage shall be written to indicate that
legal costs and fees are considered outside of the policy limits and shall not erode limits of
liability. Any deductible will be the sole responsibility of the Consultant and may not
exceed $50,000 without the written approval of the City. Coverage shall be claims-made,
with a retroactive or prior acts date that is on or before the effective date of this Agreement.
Coverage shall be maintained for the duration of the contractual agreement and for two (2)
years following completion of services provided. An annual certificate of insurance, or a
full copy of the policy if requested, shall be submitted to the City to evidence coverage.
6. Any other insurance as reasonably requested by City.
Waiver Request and Certification:
The Department procuring the services to be provided under the proposed contract requests that the
specific insurance recommendations above be waived. The vendor is providing some insurance,
but at reduced coverage. Based on the dollar amount of this proposed contract and the scope of
services for this project, the Department believes the risk of exposure is minimal and recommends
accepting the contract with the reduced coverage.
�eo��Z"I' kPCI
Departm Ot irector Date