HomeMy WebLinkAboutContract 58578 ThoughtExchange
Service Order
Fulcrum Management Solutions Inc. Sales Rep:Anthony Cerami
Suite E, 1990 Columbia Avenue Phone: 4169987012
PO Box 2260 Email: anthony.cerami@thoughtexchange.com
Rossland, BC, Canada. VOG 1 YO
Company Information
Bill To: City of Fort Worth
Address: City Hall
200 Texas St, Fort Worth,Texas United States
Postal/Zip Code: 76102
Billing Contact Name:
Billing Contact Email:
Billing Contact Phone:
Ship To (if different than Bill To):
Address:
Postal/Zip Code:
Shipping Contact Name:
Shipping Contact Email:
Shipping Contact Phone:
Order Details
Subscription Start Date: October 1, 2022 Billing Frequency:All Up-Front
Subscription End Date: September 30, 2023 Payment Terms: Net 15 Days
Currency: USD
Pricing
ThoughtExchange Services Quantity
Small Room (Up to 5 Leaders 1.00 $50,400.00
One-Time Discount 1.00 ($10,400.00)
Subscription Total $40,000.00
Product Description can be found in Attachment 1
Standard Terms and Conditions
The services described in this order is governed by the attached Subscription Agreement.
Order Special Terms
Notwithstanding anything to the contrary found herein, your subscription shall terminate on the subscription end date
indicated on this Order Form and shall not automatically renew.
OFFICIAL RECORD
FULCRUM CONFIDENTIAL 1990 Suite E,Columbia Avenue,PO BOX 2260,Rossland,BC VOG 1YO CITY SECRETARY Page 1
800-361-9027 1 thoughtexchange.com FT.WORTH,TX
ThoughtExchange
Purchase Order Information
Is a Purchase Order(PO)required?
Please email PO to accounts.receivable(a-thoughtexchange.com
Purchasing Contact Name:
Purchasing Contact Email:
Is the licensee exempt from sales and use tax?
If yes, please send a tax exempt form to accountsO-)thoughtexchange.com
Acceptance
Please indicate your acceptance of this agreement(including the attachments) by signing below and returning this
Service Order to us. By signing you represent that you are authorized to agree to this agreement on behalf of the
undersigned organization.
City of Fort Worth Fulcrum Management Solutions Inc.
By: Reyne es(Nov 29,202219:37 CST) By: O
Reyne Telles Joe Baker
Print Name Above Print Name Above
Chief Communications Officer VP Corporate Development
Title Title
11/29/22 11/17/22
Date Date
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
FULCRUM CONFIDENTIAL 1990 Suite E,Columbia Avenue,PO BOX 2260,Rossland,BC VOG 1YO Page 2
800-361-9027 1 thoughtexchange.com
CSC No. 58578
ADDENDUM TO THOUGHTEXCHANGE SUBSCRIPTION AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
FULCRUM MANAGEMENT SOLUTIONS,INC.
This Addendum to the ThoughtExchange Subscription Agreement ("Addendum") is
entered into by and between Fulcrum Management Solutions,Inc. ("Vendor")and the City of Fort
Worth("City"), collectively the "parties."
The Contract documents shall include the following:
1. The ThoughtExchange Subscription Agreement;
2. Atttachment 1 —Room Subscription Document;
3. ThoughtExchange Order Form; and
4. This Addendum.
Notwithstanding any language to the contrary in the attached contract documents
([collectively referred to herein as] the "Agreement"), the parties stipulate by evidence of
execution of this 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. Term. The Agreement shall commence upon the date signed by the Assistant City
Manager below("Effective Date")and shall expire no later than September 30,2023 ("Expiration
Date"),unless terminated earlier in accordance with the provisions of this Agreement or otherwise
extended by the parties. This Agreement may be renewed for two (2)one year renewal periods at
the City's option, each a "Renewal Term." The City shall provide Vendor with written notice of
its intent to renew at least thirty(30)days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach.If either party commits a material breach of the Agreement,the non-
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten(10)calendar days after
receipt of notice from the non-breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non-breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party. OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Addendum Page 1 of 9
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County,Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
4. 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 City to purchase insurance, City objects to any such provision,the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
5. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
6. Limitation of Liability and Indemnity. To the extent the contract documents,in any
way, limits the liability of Vendor or requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
7. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s),or any part
Addendum Page 2 of 9
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8,Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however,City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so.In the event City,for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City shall have the sole
right to conduct the defense of any such claim or action and all negotiations for its settlement
or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action.City agrees to give
Vendor timely written notice of any such claim or action,with copies of all papers City may
receive relating thereto.Notwithstanding the foregoing,the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non-infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s)with equally suitable, compatible, and functionally equivalent non-infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
8. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s)of Work("Data Breach"),Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
to prevent or stop such Data Breach.In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws,and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Addendum Page 3 of 9
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement,any applicable Statement(s)of Work,
or as required by law.Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
9. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
10. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, 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 there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
11. 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 City,the terms in this Addendum shall control.
12. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES.City,upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
13. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000,this section does not apply. Vendor acknowledges that in accordance with
Addendum Page 4 of 9
Chapter 2270 of the Texas Government Code,City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and(2)will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and(2) will not boycott Israel during the term of the Agreement.
14. Right to Audit. Vendor agrees that City shall,until the expiration of three(3)years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
15. Prohibition on Boycotting Energy Companies. Vendor acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that
has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. The terms "boycott energy company"
and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 13, §2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not boycott energy companies; and(2)will not boycott energy companies during the term of
this Agreement.
16. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of$100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms"discriminate,""firearm entity"and"firearm
trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 19, § 1. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not have a practice, policy, guidance, or directive that discriminates against a firearm entity
or firearm trade association; and(2)will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
Addendum Page 5 of 9
17. Insurance.
1.1. The Vendor shall carry the following insurance coverage with a company
that is licensed to do business in Texas or otherwise approved by the City:
1.1.1. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per
occurrence; $4,000,000 aggregate; or
1.1.1.2. 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.
1.1.1.3. Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability
Insurance requirements per the amount required by statute.
1.1.3. Technology Liability(Errors & Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per
occurrence; $4million aggregate or
1.1.3.2. 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.
1.1.3.3. Coverage shall include, but not be limited to, the
following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with
final adjudication language;
Addendum Page 6 of 9
1.1.3.3.5. 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 Vendor under this Agreement;
1.1.3.3.6. 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 Vendor 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; and
1.1.3.3.7. Any other insurance as reasonably requested
by City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies 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.
1.2.2. The workers' compensation policy shall include a Waiver of
Subrogation(Right of Recovery)in favor of the City of Fort Worth.
1.2.3. 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.
1.2.4. 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
Addendum Page 7 of 9
strength and solvency to the satisfaction of Risk Management. If the rating is below
that required,written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained
all required insurance shall be delivered to and approved by the City's Risk
Management Division prior to execution of this Agreement.
(signature page follows)
Addendum Page 8 of 9
[Executed effective as of the date signed by the Chief Communications Officer/[ACCEPTED
AND AGREED:]
City: Vendor:
By: By: ?
Name: Reyne Telles Name: Joe Baker
Title: Chief Communications Officer Title: VP Corporate Development
Date: 11/17/22
Date: 11/29/22
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended: Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
By: �°"°''-� ensuring all performance and reporting
Name: Reyne Telles requirements.
Title: Chief Communications Officer
Approved as to Form and Legality:
By: Boa
Name: _Michelle Gutt
e .
Title: Comm/Public Engagement Director
B .
Y
Name: Taylor Paris City Secretary: 'rPA'Oo F°Rt�o��
Title: Assistant City Attorney ��j'=d
oa *�
d
Contract Authorization: By: -ann&f&S.aoc4all ��Il nEXASo�p
M&C: Name: Jannette S. Goodall
Title: Acting City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Addendum Page 9 of 9
ThoughtExchange®Subscription Agreement
ThoughtExchange®Subscription Agreement
1. PARTIES
1.1 Parties.This Agreement is between you,the legal person identified in one or more signed and dated Service Orders(as
defined below)and the ThoughtExchange entity identified in such Service Order(s)("we"or"us").
2. AGREEMENT
2.1 Component documents.The Agreement between you and us is comprised of this Subscription Agreement document,
one or more Service Orders described in Section 2.2,the Terms of Use identified in Section 2.3,and the online documents
listed in Section 2.4.
2.2 Service Orders.You become a party to and bound by this Agreement by signing a Service Order.The Service Order sets
forth the Scope Limitations(as defined below in Section 3.5),fees,effective date,term and other details of your subscription for
the ThoughtExchange platform and related software and online services. In addition to any Scope Limitations described directly
in the Service Order,the Scope Limitations may be further described by one or more referenced online descriptions or written
proposals,each of which are incorporated into the Service Order.To the extent there is conflict between a term set forth in this
document,an online description or a written proposal and a term set forth in one or more Service Orders,the terms of the
applicable Service Order shall prevail.
2.3 Terms of Use.While this Agreement sets forth the terms under which we provide the Subscription Services(as defined
below)to you,our customer,the use of the ThoughtExchange platform by individuals to whom you provide access to lead or
participate in an Exchange is governed by our Participant and Leader Terms of Use(the"Terms of Use").The Terms of Use
provide protections for Participants,prevents abuse of the platform by Participants and Exchange Leaders and limits our liability
and yours to Participants and Exchange Leaders.
We intend for this Agreement,and not the Terms of Use,to govern the relationship between us.Accordingly, if there is conflict
between a term set forth in this Agreement and a term set forth in the Terms of Use:
a. the term contained in this Agreement takes precedence as between us,and
b. the term set forth in the Terms of Use takes precedence for Exchange Leaders and Participants.
Our current form of Terms of Use can be found at https://www.thouahtexchange.com/participant-leader-terms-of-use/.We may
change our Terms of Use from time to time,and we will notify you as early as is commercially reasonable of any upcoming
change. No such change will have the effect of changing this Agreement.
2.4 Other documents incorporated by reference.Also incorporated by reference into the Agreement between you and us are
the following:
a. Privacy Statement
The above documents,as incorporated into our Agreement, are legally binding and should be carefully reviewed.We may
change these from time to time, and we will notify you as early as is commercially reasonable of any upcoming change. No such
change will have the effect of changing this Agreement.To the extent there is conflict between a term set forth in this document
and a term set forth in one of the documents listed above,the terms of this document shall prevail.
3. SERVICES
3.1 Access is online only.We market and sell subscriptions to various online services offered as part of the cloud-based
platform called ThoughtExchange(collectively,the"Subscription Services").You acknowledge that access to the
Subscription Services is through a remote internet browser,and your access to the Subscription Services does not
include the transfer of or license to any of our software or other intellectual property.
3.2 Exchanges are limited to internal use.The Subscription Services allow users to engage with others in scaled,structured
online discussions called"Exchanges."Unless you have entered into a separate Sales Partner Agreement or as otherwise
agreed in writing,you may create and launch Exchanges solely for internal business purposes.You may not launch and run
Exchanges on behalf of entities who are not party to this Agreement, including clients, members,or other entities,even if closely
associated with your business or organization.
2022.04.26 Confidential Page 1 of 6
Thou ghtExchange®Subscription Agreement
3.3 Leaders and other roles. Each Exchange is created by an"Exchange Leader".A"Participant'is any other person who
participates in the Exchange. In addition,the Subscription Services may include administrative and other roles for managing
Exchange Leaders and Exchanges.The number of individual permitted Exchange Leaders and the number of individuals
permitted to perform other roles are specified in each Service Order.You can change the individuals having access at any time
during your subscription.
3.4 Authorized users.Other than for Exchange participation, access to and use of the Subscription Services is limited to
"Authorized Users."An Authorized User is an individual(a)who is your employee or consultant; and (b)who is identified for
purposes of access by a unique email address issued by you.We will provide each Authorized User a unique login based on
that email address.You are responsible for ensuring that each of your Authorized Users complies with this Agreement.
3.5 Scope limitations.Your rights to use the Subscription Services are subject to any scope and usage limitations set forth in
the applicable Service Order,which may include,without limitation, limits on the number of users, use solely by an internal
department,team or other division within your organization,or administrative, management or other service features
(collectively,the"Scope Limitations").You agree to use the Subscription Services within the Scope Limitations.
4. RELATED INTELLECTUAL PROPERTY AND RESERVATION OF RIGHTS
4.1 Installable Software. From time to time we may offer installable software components such user interface plug-ins or data
exchange programmatic interfaces("Installable Software").Should we give you access to Installable Software in connection with
the Subscription Services(and not under a separate license agreement),then as to such we grant to you a limited,worldwide,
non-exclusive, non-transferable right during the term of the applicable Service Order to install the Installed Software on your
computer network,systems or other devices for use solely to facilitate your authorized use of the Subscription Services.Your
rights to use the Installable Software are subject to any Scope Limitations set forth in the applicable Service Order. Except as
may be expressly permitted by applicable law,you will not: (a)sell, rent, lease, license,sublicense or distribute the Installable
Software:or(b)copy, reproduce,modify,translate,enhance,decompile,disassemble, reverse engineer,or create derivative
works of the Installable Software.
4.2 Rights reserved. Subject to the limited access granted under this Agreement,we reserve all intellectual property rights,
including rights in the ThoughtExchange platform and brand,the Subscription Services and the Installable Software, including
all patent,copyright,trade secret,trademark and other proprietary rights.
4.3 Feedback.You,your Exchange Leaders and other authorized users,and your Participants may,on an entirely voluntary
basis,submit feedback, user community contributions and comments,technical support information,suggestions,enhancement
requests, recommendations,and messages relating to the operations,functionality,or features of the Subscription Services or
other products or services(collectively,"Feedback").You grant us a royalty-free,fully paid, non-exclusive, perpetual,
irrevocable,worldwide,transferable license to display, use, incorporate into the Subscription Services,copy, modify, publish,
perform,translate,create derivative works from,sublicense,distribute,and otherwise exploit Feedback without restriction.
5. SUBSCRIPTION PERIOD
5.1 Term and renewal.The initial term of your subscription to the Subscription Services will be as agreed in your Service
Order.At the end of the initial term,your subscription will automatically renew for additional twelve(12)month periods unless
you notify us in writing at least sixty(60)days prior to the end of the then-current term,that you do not wish to renew.
5.2 Cancellation or downgrade.You may cancel or downgrade your subscription at any time by providing us with written
notice. If you cancel(or downgrade)your subscription,you must continue to pay for the rest of your current subscription term
and you will not receive a refund of any subscription fees already paid.
5.3 Violation of agreement or law.We may terminate or suspend your access to the Subscription Services if you violate this
Agreement or any law, including without limitation those identified in Section 11 below. If we terminate your access because you
violated this Agreement or law,you will not receive a refund.
5.4 Discontinued services.We may also terminate your subscription if we discontinue the Subscription Services.We will do
our best to notify you in advance of any suspension or termination; however,there may be some cases where we need to
suspend access immediately to comply with law or prevent harm to others. If we terminate your access to the Subscription
Services other than for reasons specified above in Section 5.3,we will refund you for any Subscription Services not received.
5.5 No access following termination.Cancellation,termination or failure to renew your subscription will result in suspension
of your access to the Subscription Services at the time of cancellation or termination or at the end of your paid term,as
applicable.
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Thou ghtExchange®Subscription Agreement
6. FEES AND PAYMENT
6.1 Fees.The fees for your Subscription Services(together with all applicable taxes,duties and levies or similar
assessments)are payable in advance,either annually or in accordance with any different billing frequency stated in the
applicable Service Order.
6.2 Renewals.All renewal terms are subject to a five percent(5%)price increase above the pricing that applied to the prior
subscription term. Unless we agree otherwise in the applicable Service Order,the renewal of any promotional priced
subscriptions will be at our standard price in effect at the time of renewal.
6.3 Non-refundable and non-divisible commitment. Fees are non-refundable and based on Subscription Services purchased,
not actual usage.The initial term specified in a Service Order is a non-divisible,continuous commitment, regardless of the
invoice schedule,and pricing is based on purchase of the Subscription Services in in the specified quantity and configuration for
the entire initial term (or applicable renewal term).
6.4 Invoices and purchase orders. Unless we agree otherwise in the applicable Service Order,we will invoice you for your
subscription fees at the beginning of each annual term.All invoiced fees are due net 30 days from the invoice date. If you issue
us a purchase order for your subscription to the Subscription Services,the purchase order must be for the full amount of the
subscription fees shown on your Service Order.You agree that any purchase order is for your internal convenience only,and
any purported contractual terms will have no force or affect with respect to this Agreement.
6.5 Taxes.The fees stated in a Service Order do not include local,state,federal,or foreign taxes or other governmental
charges resulting from this Agreement or any Service Order.You are responsible for paying all such taxes,excluding taxes on
our net income or property.
7. CONTENT AND SECURITY
7.1 Content.As between us,you own and shall retain all right,title and interest in and to all information collected,
entered,created or otherwise provided by you,your Exchange Leaders or your Participants in the course of using the
Subscription Services("Content").We will obtain and process your Content solely to perform our obligations under this
Agreement.Content shall constitute your Confidential Information under Section 8 of this Agreement. You are responsible for
the accuracy,quality,content,availability,appropriateness,and legality of Content, including how Content is acquired and
shared by you,your Exchange Leaders and your Participants outside of the Subscription Services.You are responsible for the
proper disclosure to and receipt of all required consents from each individual to transfer any personal information to us and to
allow us to use,disclose and otherwise process such information for the purpose of providing the Subscription Services.
7.2 Prohibited Content.You will not,and you will ensure that your Exchange Leaders and Participants do not, upload
any Prohibited Content to,or otherwise provide any Prohibited Content for processing by,the Subscription Services.You
acknowledge and agree that,notwithstanding anything to the contrary,we will have no liability with respect to Prohibited
Content."Prohibited Content"means an individual's(a)financial account or payment card information; (b)patient, medical or
other protected health information; (c)social security, national identity, or similar personal identifiers; (d)"special categories of
personal data" as defined under the General Data Protection Regulation, Regulation(EU)2016/679(GDPR); (e)any other
sensitive personal data as such term(or a similar term)is defined under applicable privacy or data protection laws;and(f)any
data that you do not have the legal right to transfer to us.
7.3 Aggregated and Anonymous Data. Notwithstanding Section 7.1,you acknowledge that we may collect
aggregated and anonymous data from the Subscription Services to improve our products and services,and to track certain
aspects of our services, including without limitation,availability capacity, performance, and response times.We will ensure that
none of the information we gather identifies,or could be used to identify you,your Exchange Leaders or your Participants.
7.4 Security.We implement and maintain reasonable administrative, physical,and technical safeguards intended to
protect against the unauthorized access, use,disclosure,alteration,or destruction of your Content. However,since the Internet
is not a 100%secure environment,we cannot ensure or warrant the security of any information that you transmit to us.There is
no guarantee that information may not be accessed,disclosed,altered,or destroyed by breach of any of our physical,technical,
or managerial safeguards.To learn more,please visit httr)s://thouahtexchange.com/security/.
7.5 Data Processing Agreement. If your use of the Subscription Services involves processing personal data pursuant
to the GDPR and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed
by the European Commission as providing an adequate level of protection for personal data,the terms of the Data Processing
Addendum shall apply to such personal data and be incorporated into this Agreement by reference.
8. CONFIDENTIALITY
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Thou ghtExchange®Subscription Agreement
8.1 Obligation of Confidence During the performance of this Agreement,each party may receive Confidential Information
from the other. Each party will treat Confidential Information as confidential and protect it from disclosure as it would its own
information of a similar nature. Neither party will disclose confidential information other than to those of its employees or agents
who need to know such information for performance of each party's rights and obligations under this Agreement. Neither party
will use Confidential Information for any purpose beyond the performance of its rights and obligations under this Agreement
without the prior written consent of the other party. All Confidential Information shall remain the property of the disclosing party,
and each party will return or destroy any tangible materials containing such Confidential Information upon request of the other
party.
8.2 Identification of Confidential Information.The parties hereby agree that,for purposes of this Agreement,"Confidential
Information"shall mean all information marked as confidential or proprietary, or received under circumstances reasonably
interpreted as imposing an obligation of confidentiality. It includes, but is not limited to,trade secrets and business matters as
research and development,the identity and profiles of customers and suppliers,and sales and marketing plans and information.
Confidential Information does not lose its status as Confidential Information merely because it was known by a limited number of
persons or entities or because it was not entirely originated by either party.
8.3 Exclusions. The obligations of confidentiality and protection imposed by this paragraph shall not apply,or shall cease to
apply,to any information that: (1)was lawfully known by either party prior to its receipt hereunder; (2)is or becomes publicly
available without breach of this Agreement; (3)is lawfully received by either party from a third party who does not have an
obligation of confidentiality to either party; or(4)is developed independently by employees of either party without reference to or
use of Confidential Information.
8.4 Disclosure in Accordance with Law.A party may disclose Confidential Information to the extent required to do so by a
governmental agency, by operation of law,or if necessary in any proceeding to establish rights or obligations under this
Agreement, provided that such party,to the extent legally permissible,furnishes prior written notice of such disclosure and
reasonably cooperates with the other party, in any effort to seek a protective order or other protection of the Confidential
Information.
8.5 Agreement Confidential. Except as otherwise required by law,all terms of this Agreement are confidential between us,
and,with the exception of our respective advisors and other agents having an obligation of confidentiality,are not to be
discussed with anyone outside of our respective organizations.
9. WARRANTY AND LIMITATION OF LIABILITY
9.1 Limited Warranty. Because the technologies underlying Subscription Services such as ThoughtExchange are inherently
complex,we cannot warrant that the Subscription Services will be entirely error-free or will operate without interruption.We
warrant that the Subscription Services will not infringe the intellectual property rights of any third party and that during your
Subscription Period the Subscription Services will be free from significant defects.Our sole responsibilities in the event of an
error or defect in the operation of the Subscription Services are:
a. to use reasonable efforts to correct significant defects without charge;or
b. to refund a portion of the subscription price, pro-rated from the time such defects are first brought to our attention,and
terminate your subscription.
9.2 Advice.All advice provided by us is"as-is"and reflects our best judgment based on the information available to us at the
time.You are solely responsible for the consequences of acting on our advice.
9.3 Limitation of Liability; Damages. EXCEPT FOR THE INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL
PROPERTY RIGHTS OR A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, IT IS UNDERSTOOD AND
AGREED THAT EITHER PARTY'S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT,WHETHER IN CONTRACT,
IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE
AMOUNT OF THE FEES PAID BY YOU FOR SERVICES PROVIDED OVER THE PRIOR TWELVE(12)MONTH PERIOD.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR DAMAGES.THE PRICE STATED
FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING OUR LIABILITY.
10. INDEMNIFICATION
10.1 Obligation to Indemnify.You and we each agree to defend,indemnify and hold the other harmless against and in respect
of any loss, damages,obligation, penalty, deficiency or liability(including,without limitation,attorneys'fees)imposed upon,
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Thou ghtExchange@ Subscription Agreement
incurred by or asserted against one of us that are finally determined to result from the other's material breach of any provision of
this Agreement or its failure to meet its obligations to or perform any acts required under this Agreement,except to the extent
such loss is caused by the acts or omissions of, or misrepresentations by,the non-breaching party, its employees or agents or
third parties.
10.2 Defense and Settlement. If any demand,claim or suit is asserted or instituted with respect to which any party may be
entitled to indemnification under this Agreement,then the party liable for indemnification shall notify the party entitled to
indemnification of the full details to the extent then known.The party entitled to indemnification shall be entitled at its own
expense to employ counsel to defend such demand, claim or suit or to participate in the defense of such asserted demand,
claim or suit.Any proposed settlement of any such demand,claim or suit must be approved by both of us.We agree to
cooperate in good faith in the defense or settlement of any such demand,claim or suit.
11. REGULATORY MATTERS
11.1 General Compliance with Laws You agree to comply with all applicable federal,state and local laws, rules, regulations
and executive orders as it pertains to this Agreement. You agree to obtain and maintain all permits, licenses,or certificates
required by any regulatory body for resale or use of the Subscription Services.
11.2 U.S.Government Customers. Any Subscription Service or modification or derivative thereof and related documentation
and technical information which we or you distribute or license to or on behalf of a U.S.Government, are Commercial Items, as
that term is defined at 48 C.F.R.§2.101,consisting of Commercial Computer Software and Commercial Computer Software
Documentation,as such terms are used in 48 C.F.R.§12.212 or 48 C.F.R.§227.7202, as applicable.Consistent with 48 C.F.R.
§12.212 or 48 C.F.R.§227.7202-1 through 227.7202-4,as applicable,the Commercial Computer Software and Commercial
Computer Software Documentation are being licensed to the U.S. Government(a)only as Commercial Items, (b)not as military
or defense articles as defined in the International Traffic in Arms Regulations,22 C.F.R Parts 120-130 or Export Administration
Regulations, 15 C.F.R. Parts 700-799),and(c)with only those rights as are granted to all other customers of the sales partner
program pursuant to this Agreement. Unpublished rights are reserved under the copyright laws of the United States.
11.3 Export Compliance.The Subscription Services and Installable Software may be subject to export laws and regulations of
the United States and other jurisdictions. Each party represents that it is not named on any government denied-party list.You
further represent that you are not located,and will not access or use,or permit any Authorized User to access or use,any of our
technology in any U.S.-embargoed country or region(including but not limited to Cuba, Iran, North Korea,Sudan,Syria or
Crimea),or access or use any of our technology in violation of any applicable U.S., local or foreign export laws or regulations.
11.4 Anti-Corruption.You represent that you have not received or been offered any illegal or improper bribe,kickback,
payment,gift,or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and
entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the
above restriction,you must promptly notify our Legal Department at legal@thoughtexchange.com.
11.5 General Privacy Laws.You agree to comply with all applicable provincial,state and federal data privacy and security
laws and regulations, including without limitation (as applicable)the GDPR,California Consumer Protection Act and the
Personal Information Protection and Electronic Documents Act as they may relate to this Agreement. In addition,you agree to
provide us with such assistance as we may reasonably require to fulfill our responsibilities under such privacy and security laws.
11.6 Privacy of Students and Minors.You agree to comply with all applicable provincial,state and federal data privacy and
security laws and regulations governing students and other minors, including without limitation(as applicable)the Personal
Information Protection and Electronic Documents Act, Federal Educational and Privacy Rights Act at 12 U.S.C. 1232g,
Children's Online Privacy Protection Act, New York Education Law Section 2-d and Part 121 of the Regulations of the
Commissioner of Education and 15 U.S.C.6501-6502; Protection of Pupil Rights Amendment(as they may relate to this
Agreement. In addition,you agree to provide us with such assistance as we may reasonably require to meet our responsibilities
under such privacy and security laws. If you are a U.S.School District or other regulated education institution, by entering into
this Agreement,you represent,warrant and agree that:
a. You have hired us to perform a service for which the district would otherwise use its own employees.
b. You have previously provided us with an accurate copy of your most recent annual notification of Federal Educational
and Privacy Rights Act(FERPA)at 12 U.S.C. 1232g rights.
C. You are not hiring us to create Exchanges other than for the exclusive purpose of developing,evaluating or providing
education products or services for students or schools.
d. If you ask us to collect information governed by the Children's Online Privacy Protection Act(COPPA),that you are
validly exercising consent on behalf of the parents of every student for which information is provided.
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Thou ghtExchange@ Subscription Agreement
12. GENERAL
12.1 Publicity.We may use your name,trademarks,and service marks to the extent necessary to fulfill our obligations under
this Agreement and any Service Order or as otherwise expressly authorized in this Agreement or a Service Order.With your
prior written consent we may use your name and trademark as a reference for marketing and promotional purposes on our
website and in other communications with our existing and prospective customers. If you subsequently do not want to be listed
as reference for the Subscription Services,you may send an email to legal@thoughtexchange.com stating that you do not wish
to be identified as a reference.
12.2 Insurance. Each party,at its sole cost and expense,will maintain during the term of this Agreement insurance in the type
and amount required by law and consistent with standard industry practices based on its business and the scope of this
Agreement. Upon written request of a party,the other party will provide a certificate of insurance evidencing is insurance
coverage.
12.3 Entire Agreement.This Agreement constitutes the entire agreement between us and there are no covenants,
representations,warranties or agreements other than those contained or specifically preserved under the terms of this
Agreement.The rights and obligations under Sections 4 through 12 shall survive termination of this Agreement.
12.4 Relationship of the Parties. In providing Subscription Services to you,our relationship to you is that of an independent
contractor. It is not the intent of either party to create a relation of employment, partnership,agency or joint venture. Except as
specifically set forth in the applicable Service Order,we will bear all expenses incurred in connection with the Subscription
Services.
12.5 Applicable Law.This Agreement shall be governed by, and construed in accordance with,the laws of the State of
Washington if you are a U.S. resident and if you are a Canadian or other non-U.S. resident, in accordance with the law of the
Province of British Columbia,without reference to any conflict-of-laws principles. If you are a U.S. resident,you irrevocably
submit to the personal jurisdiction of the U.S.federal and state courts in King County,Washington for any action or proceeding
arising out of,or based upon,this Agreement,and waive any objection to the laying of venue in such courts or that any such
court constitutes an inconvenient forum. If you are a Canadian or other non-U.S.resident,you irrevocably submit to the personal
jurisdiction of the courts of the Province of British Columbia for any action or proceeding arising out of,or based upon,this
Agreement,and waive any objection to the laying of venue in such courts or that any such court constitutes an inconvenient
forum. EACH PARTY WAIVES,TO THE FULLEST EXTENT PERMITTED BY LAW,ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING(WHETHER SOUNDING IN CONTRACT,TORT OR OTHERWISE)ARISING OUT OF,OR
RELATING TO,THIS AGREEMENT.
12.6 Severabilitv. In the event that any portion of this Agreement is held to be unenforceable,the unenforceable portion shall
be construed in accordance with applicable law as nearly as possible to reflect the parties'original intentions and the remainder
of the provisions shall remain in full force and effect.
12.7 Waiver and Modifications;Assignment. Either parry's failure to insist upon or enforce strict performance of any provision
of this Agreement does not mean that either party has waived any provision or right in this Agreement. Neither the course of
conduct between you and us nor trade practice shall act to modify any provision of this Agreement.This Agreement may only be
amended by written agreement between all parties.You may not assign or transfer this Agreement without our prior written
consent.This Agreement inures to the benefit of and is binding on our respective successors and assigns.
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ThoughtExchange
ThoughtExchange®Services —Attachment 1
ThoughtExchange
ThoughtExchange is a hosted Software-as-a-Service platform. ThoughtExchange allows Exchange Leaders to
engage with Participants in structured online interactions.We call each of these interactions an Exchange. Each
Exchange is created by an "Exchange Leader"designated by you, our customer.A"Participant' is any other
person who participates in the Exchange.
Exchange Leaders and Participants can access ThoughtExchange via most popular web browsers on standard
desktop and mobile platforms (see https://get.thoughtexchange.help/hc/en-us/articles/226950227-Supported-
browsers-and-devices for a list of supported platforms).
Room Subscription
ThoughtExchange Rooms are virtual environments allowing Exchange Leaders to launch Exchanges to engage
participants in meaningful conversations about decisions impacting them.
You have purchased one or more Room Subscriptions.A Room allows the number of Exchange Leaders
(specified on the cover page)to create unlimited Exchanges, any of which can be active at the same time.
Rooms are collaborative environments. Exchange Leaders who have access to a given Room are able to access
and work with all Exchanges created in the Room.
Core Features and Services
Exchange Leaders: Each holder of an Exchange Leader account can create their own Exchanges and have
access to special ThoughtExchange features.
Unlimited Participants per Exchange: Exchanges have no limit on the number of participants,
although Exchanges including more than a few thousand participants we recommend contacting our customer
support team.
Unlimited Exchanges:An Exchange Leader can create an unlimited number of Exchanges.
Unlimited Report Creation: Create an unlimited number of printable, downloadable, or web-based reports.
Multilingual: The ThoughtExchange user interface runs natively in either English, French, or Spanish. Exchanges
can be created where Participants can participate in the same Exchange in any language that Google Translate
supports.
Analytics and Data Visualization: You have access to analytics and data visualization that is
automatically generated by the software. This includes our presentation mode functions and AI-generated
theming technology.
Phone, Chat, and Email Support: These are available to you during regular working hours.
Access to Customer Success: Ensures your Exchange Leaders get the training, support, and access to
resources in order to run successful Exchanges.
Access to Events and Resources: Engage with your peers, learn from industry leaders, and identify new ideas to
better engage with your community and organization.
2021.01.01 Room FULCRUM CONFIDENTIAL Pagel
±P' ThoughtExchange
Administrative Controls: Increased security controls to provide maximum protection.Adjust Room names,
registration requirements, set domain restrictions, and add/remove Exchange Leaders.
Machine Moderation:Access to our machine moderation technology which can review thoughts that appear toxic,
or that name people explicitly, before they are shared in the Exchange. This allows Exchange Leaders additional
security and an opportunity to keep the Exchange a safe space.
Survey Questions: Up to 10 survey-style (multiple choice)questions, allowing for additional filtering of your
Exchange data for deeper analysis.
Custom Logo:Add your logo on your exchanges and Summary Reports.
Participant Grouping: Create custom participant groups within a single exchange to keep participant thoughts and
ratings contained and be able to compare trends between groups.
2021.01.01 Room FULCRUM CONFIDENTIAL Page 2