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HomeMy WebLinkAboutContract 59841NAVEX'" I. GENERAL INFORMATION CUSTOMER INFORMATION: Name: City of Fort Worth ("Customer" or "City") Address: 1000 Throckmorton St Fort Worth, TX 76102-6311 United States II. SERVICE UPDATES A. NEW SERVICES CSC No. 59841 ORDER FORM 592650 BILLING INFORMATION: Contact Name: Monique Irwinsky Address: 200 Texas Street Fort Worth, TX 76102-6311 United States Email: monique.irwinsky@fortworthtexas.gov Phone: (817) 392-7846 r Services 'MML HQty AFees I OnFees a Fees Due Fraud Waste & Abuse (FWA) Intake - Per Report Subscripti EP Incident Management - Foundation Subscription Standard to F/E-Lite/E Data Migration Service (PS) Hotline - Web Intake Site Setup EP Incident Management - Foundation Setup Platform - EthicsPoint Migration to NAVEX One Custom Global Telephony Set-up Custom Global Telephony Subscription B. SERVICES TO BE REMOVED Hotline - Per Report Subscription C. TOTALS on 50 1 $6,489.001 $6,489.00 7,500 $3,500.00 $3,500.00 1 $1,980.00 $1,980.00 1 $1,500.00 $1,500.00 1 $0.00 $0.00 1 $0.00 $0.00 1 - $2,200.00 $2,200.00 1 $648.90 $648.90 Annual One Fees -Time Fees Fees.&,.6 SUB -TOTALS: $10,637.90 $5,680.00 $16,317.90 Services EW__]Quantity Credi (50) ($3,257.07) FEES FOR NEW SERVICES: I $16,317.90 CREDIT APPLIED: I ($3,257.07) TOTAL FEES DUE NOW: $13,060.83 OFFICIAL RECORD Ref.: 0I-000592650 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 CITY SECRETARY Confidential C 2022 NAVEX Global, Inc. All rights reserved. FT. WORTH, TX Page 1 of 10 III. ADDITIONAL TERMS 1. GOVERNING TERMS AND CONDITIONS a. This Order Form shall be governed by the terms of the Services Agreement between the parties dated October 7, 2011, as supplemented by Exhibit A hereto (collectively, the "Agreement"). The 2011 Services Agreement is attached as Exhibit B. b. To the extent any terms and conditions of the Services Agreement conflict with the terms and conditions of Exhibit A, the terms and conditions of Exhibit A shall control. 2. SERVICE UPDATES a. The parties have agreed to replace the existing Services listed in Section 111.13 above (the "Discontinued Services") with the new Services detailed in this Order Form. b. Customer shall continue to have access to the Discontinued Services until the "go -live" date of the new Services. Upon the "go - live" date of the new Services, the Discontinued Services shall be deactivated and terminate. 3. NEW SERVICES a. The Term shall begin on the Order Form Effective Date and run for 1 year (the "Initial Term"). b. All fees detailed herein will be invoiced upon execution of this Order Form and Customer shall remit payment within 30 days of said invoice's date. c. The annual fees for subsequent years will be invoiced to Customer at least 30 days prior to the start of the upcoming year and will be due by the start of such year. d. Each subscription will automatically renew for successive 1-year periods (each a "Renewal Term"). However, either party may elect to not renew by providing written notification to the other party at least 30 days prior to the start of a Renewal Term. e. NAVEX may increase annual fees applicable to a Renewal Term by providing written notification of the increase at least 60 days prior to the start of the Renewal Term. 4. Either Party may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. If NAVEX terminates the Agreement in accordance with the foregoing, NAVEX shall provide Customer a pro-rata refund of pre- paid, unused fees. If Customer terminates the Agreement in accordance with the foregoing, Customer shall not be entitled to a pro-rata refund and shall remain responsible for all fees for the then -current Term affected by such termination for convenience. 5. All prices are in U.S. Dollars. 6. Pricing, terms, and conditions may be subject to change, at NAVEX's sole discretion, in the event Customer does not sign and return this Order Form to NAVEX by 5:00 p.m. (PT) on July 30, 2023. 1. DESCRIPTION OF SERVICES. Custom Global Telephony Set-up Provides customers with the ability to communicate custom branding and messaging including all supported languages. Customer will provide text of the custom greeting in English within NAVEX's preferred format. NAVEX can provide recommended word counts during the setup. • Customer may provide full translated versions of custom greeting • The greeting may be applied to multiple lines currently implemented • One (1) additional menu with prompts allowed • Default routing to a communication specialist is not supported (selection must be made) • External terminations are not supported • All custom greeting scripts are final and unable to be modified following approval. Modifications may result in additional fees and extended timelines to be agreed to by NAVEX and Customer Fraud Waste & Abuse (FWA) Intake - Per Report Subscription NAVEX's FWA Intake has been designed to enable your plan enrollees/constituents to easily and confidentially report any issue or instance of Fraud Waste & Abuse. The Contact Center is globally accessible 24/7/365 with system availability ensured by end -to -end network redundancy, scalability, and reliability. While the majority of non-English language calls are serviced with greater than 98% interpreter availability, global demand for specific languages can occasionally peak beyond interpreter supply. If an interpreter cannot be obtained, callers will be given the option to report their concern in English. Live telephone language interpretation is available in 200+ languages at $3.70 per minute invoiced in arrears. Customer understands that NAVEX will (i) automatically provide English language translations of web Reports and follow-up information received in non-English languages; and (ii) automatically translate Customer responses to Reports into the language in which the associated Report was originally received. Translations incur additional fees which will be invoiced monthly in arears at $0.35 per word with a minimum fee of $120 per translation. Translation of Web Intake Pages and Reports Forms incur additional fees and are priced separately. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 2 of 10 Contracted report counts include all initial reports via phone and web. Additional reports above the contracted cap will be invoiced at 120% of the contracted per report price. Custom Global Telephony Subscription Provisioning and annual maintenance for phone line configuration with international or domestic inbound lines. This includes recommended line options by country with configurable language prompts, menus, and greetings and a unique US domestic number. The Subscription utilizes the following solutions: One -Step dialing where the caller will have a single toll -free number for a particular country to access the reporting hotline; Two -Step dialing where the caller will use a two -stage dialing process, first entering a common, country specific access code followed up with a toll -free number to access the reporting hotline; and/or Collect dialing is used where no toll -free option is available for reporting. Disclosure Statement: "For callers using One Connect Local dialing, in -Country long distance and/or mobile airtime minutes may apply". Glossary of Line Types: OneConnect (OCl - Available in more than 100 countries, OneConnect is a one-step dialing solution that eliminates the need for access codes and removes the use of English branded messaging in the calling process. The product provides in -country toll -free numbers that are routed to NAVEX that allow callers to access the international reporting program without the need to add international calling plans to landlines and mobile phones. This allows the OneConnect program to have fewer mobile phone restrictions and a more robust dialing enabled community. Dedicated International Toll -Free Service (D-ITFS) - Employers using D-ITFS make it possible for their employees to dial a country -specific toll -free number to reach one of our Contact Centers. There is no special dialing, access code, or operator assistance required. This service is available in over 70 countries and allows for custom automated call treatment. Direct Access (DAl - Direct Access implementations provide a more widely available international toll -free option for access to one of our Contact Centers. To use this service, employees first dial their country -specific access number to connect with our telephony service partner, followed by dialing the customer -specific proprietary toll -free number to connect to one of our Contact Centers. This service is available in 140 countries. It allows for custom automated call treatment and can improve access by mobile phones. WWC — (Worldwide Connect), - WWC is a product based on the Direct Access platform that allows for calls to be identified and treated with custom language options based on country of origin. Calls are made using a two-step dialing process where the caller must first dial the Direct Access code specific to the country where the call is originating followed by the proprietary toll -free number for routing to NAVEX. Global Inbound Service (GIS), - GIS is an additional toll -free option that provides one- or two-step dialing to one of our Contact Centers. GIS can have fewer restrictions for mobile phone access. This service is available in over 130 countries. Collect Calline - Stop -gap for most countries where international toll -free service and other formats are not available. Telephony by Country: • United States Call Plan: US Dialing Plan. Greetings: English;Spanish (Latin American) 2. SERVICE TERMS. 2.1. Telephonv Connectivitv. Communication connectivity is provided by a third -party provider. NAVEX cannot guarantee communication connectivity for all or any available connection sources within a particular country or region. Thus, NAVEX makes no warranties, express or implied, concerning the reliability or functionality of communication connectivity to the Hotline services outside of NAVEX's control. Customer is responsible for conducting in -country connectivity testing for quality assurance, and NAVEX will address any service failures identified through this process upon Customer notifying NAVEX and in accordance with the information provided on NAVEX's website: httD://trust.navexelobal.com/telephonv-availabilitv-reoort.html. 1. DESCRIPTION OF SERVICES. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 01-000592650 Page 3 of 10 Platform - EthicsPoint Migration to NAVEX One Platform - EthicsPoint Migration to NAVEX One includes user migration to NAVEX's consolidated Platform, NAVEX One. NAVEX will: • Migrate existing EthicsPoint user profiles to NAVEX One in the live environment Note: If customer has also purchased SSO integration, the customer will allow NAVEX to copy existing EthicsPoint database in order to test SSO configuration Standard to F/E-Lite/E Data Migration Service (PS) EthicsPoint Incident Management (EPIM) Standard to Foundation, Enterprise Lite, or Enterprise migration service includes: • Copy and recreation of the current tier structure in the new destination EPIM system. • Migration of case data to copied tiers in the new destination EPIM system. • Mapping of existing Web Intake Site and Hotline intake methods to the new destination EPIM system. • Half day of system downtime required for data migration process. • Shutdown of the old EPIM Standard system once the migration is complete. • EPIM training available for System Administrators and Users via regularly scheduled webinars. Customer is responsible for: • User data migration and set up in the new destination EPIM system. • Auto -Assignment set up in the new destination EPIM system. Hotline - Web Intake Site Setup Hotline - Web Intake Site setup includes design and development services to support the creation of a Web Intake Site. Setup includes: • A single English Web Intake Site (translated pages are priced separately) • Assignment to an industry -specific issue package with the option to modify issue titles and descriptions • Web Intake Site and system configuration in response to Customer instructions in the Web Intake Site workbook • One round of edits to Web Intake Site text and layout, issue type names and descriptions, and attachments • Note - edits to standard intake questionnaire will require additional scoping • CIA and configuration of the Hotline and Web Intake Site to make live for reporting EP Incident Management - Foundation Setup EthicsPoint Incident Management Foundation setup includes: • Initial timeline providing an overview of expectations, documentation, and customer responsibilities for a successful implementation • Kick-off call to establish key stakeholders, implementation goals, and timelines • Customized issue types • Mapping of the Hotline and Web Intake Site intake methods to the EthicsPoint Incident Management Foundation system • System structure configuration to support key business and reporting needs • NAVEX Administrator / User training available via the web, through regularly scheduled webinars • Platform Authentication setup includes Customer's implementation on the NAVEX Platform Authentication and setup of Customer's Administrators. • Customers are able to setup their own SSO integration, assistance is available for an additional fee • Included one-time delivery of Mobile Awareness Digital Poster: • Customer shall receive one non -customizable (1) 11 x 17 digital poster per language, delivered as a high -resolution, print -ready, non-editable PDF file. • Will include mobile intake URL, OR code and web intake site URL as applicable. • Available languages: Chinese (simplified), Dutch, English, French (CA), French (EU), German, Italian, Japanese, Korean, Portuguese (Brazilian), Russian, Spanish (LA), Spanish (EU). • Six (6) week implementation timeline starting at the kick-off call to complete configuration items included above. Additional changes or requests made after this period will be scoped and priced separately. If purchased in conjunction with a Professional Services engagement, the Professional Services timeline will supersede this one. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 4 of 10 EP Incident Management - Foundation Subscription EthicsPoint Incident Management - Foundation is delivered as a baseline single configuration incident management system including foundational case components. Comprised of Standard Web Intake and Mobile Intake for report intake purposes; (2) Dedicated Seat Licenses and (3) Concurrent Seat Licenses; system -level user management; built-in analysis tools including baseline reporting and standard analytics; and (1) GB storage for files attached to cases. Includes access via NAVEX's Platform authentication which provides seamless access to the customer's supported NAVEX solutions. These include EthicsPoint® Incident Management, PolicyTech® Policy & Procedure Management, RiskRate® Enterprise Due Diligence, Disclosures: Disclosure Management, and GRC Insights. 2. SERVICE TERMS. 2.1. Reoort Availabilitv. NAVEX will use commercially reasonable efforts to make English -language versions of the Reports available to Customer for review and processing (a) within 12 hours of receipt, for Reports submitted in English and (b) within 48 hours of receipt for Reports submitted in any language other than English, excluding weekends and US national holidays. As used herein, (a) a "Reporter" is any individual (employees and/or non -employees) permitted by Customer to access and use the reporting features of the Services and (b) a "Report" includes the following as a single Report: (i) any information reported by a Reporter about Customer or its business or personnel via the Services, (ii) any communications directed by Customer to a Reporter via the Services and any Reporter responses thereto, or (iii) any notes, summaries or other data uploaded to the Services by Customer representatives. Customer will have sole responsibility for the deletion and use of any Report, User PII, or other data residing in the Services. NAVEX will have no responsibility, liability or obligation with respect to any such Report, information or data that has been purged, overwritten or otherwise destroyed by or as directed by Customer. Customer will have access and the ability to download and save Reports during the Term. Upon termination and at the request by Customer made within thirty (30) days following the effective date of termination, NAVEX will create and deliver to Customer, at Customer's cost and expense, a copy of all Reports then in existence in the Services. 2.2. SUB -PROCESSORS. Hosting Location: US Customer consents to the use of the applicable sub -processors set forth in the following link: htti3s://www.navex.com/en-us/service- hostinR-providers. The foregoing link contains a mechanism to subscribe to notifications of the addition of any new sub -processors for each applicable Service, to which Customer may subscribe. Notwithstanding any provision to the contrary, updates provided via this mechanism shall operate as the notification of changes concerning the addition of any new sub -processors. IV. GENERAL TERMS This Order Form is made effective as of the date of last signature below (the "Order Form Effective Date"). The parties agree this Order Form supersedes any related quotation issued by NAVEX Global, Inc. ("NAVEX" or "Vendor"), previous and conflicting terms, or purchase order issued by Customer pertaining to the Services set forth above. Each of the signatories to this document represent they are duly authorized representatives of their respective party to this Order Form and further represent and warrant they have the actual corporate authority to execute this Order Form on behalf of their respective party as of the Order Form Effective Date. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 5 of 10 ACCEPTED AND AGREED: City of Fort Worth By: C>S�1� Name: Jesica McEachern Title: Assistant City Manager Date: J U [ 26, 2023 Approval Recommended: By: Dianna M. Giordano (Jul19, 202309:40 CDT) Name: Dianna Giordano Title: Human Resources Director Attest: o vvanu P oFFopr�ao p�o�� .�� aanu��zAgap By: Name: Jannette Goodall Title: City Secretary VENDOR: NAVEX Global, Inc. By: Shon Ramey (Jul 18, 202316:00 PDT) Name: Shon Ramey Title: General Counsel Date: J u l 18, 2023 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Sandra ta(Ju119, 23109:27CDT) Name: Sandra Huerta Title: Assistant Human Resources Director Approved as to Form and Legality: By: ¢aa�C2 GviHt2 i (� Name: Jessika J. Williams Title: Assistant City Attorney Contract Authorization: M&C: N/A OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Exhibit A Additional Terms and Conditions 1. Compensation. 1.1 City will pay Vendor in accordance with the Prompt Payment Act (Chapter 2251 of the Texas Government Code) and provisions of the Agreement, which is attached hereto and incorporated herein for all purposes. 1.2 Vendor will not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City will not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 2. Non -appropriation of Funds. 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 this Agreement will terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 3. Disclosure of Conflicts and Confidential Information. 3.1 Disclosure of Conflicts. Vendor hereby warrants to City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to City in writing. 3.2 Confidential Information. Vendor, for itself and its officers, agents and employees, agrees that it will treat all information provided to it by City ("City Information") as confidential and will not disclose any such information to a third party without the prior written approval of City. 3.3 Public Information Act. 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. In the event there is a request for information marked Confidential or Proprietary, City will 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. 3.4 Unauthorized Access. Vendor must store and maintain City Information in a secure manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Vendor must notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Vendor will, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and will fully cooperate with City to protect such City Information from further unauthorized disclosure. 4. Independent Contractor. It is expressly understood and agreed that Vendor will operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor will have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, Vendors, and subcontractors. Vendor acknowledges that the doctrine of respondeat superior will not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractors, and subcontractors. Vendor further agrees that nothing herein will be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City will in no way be considered a Co -employer or a Joint employer of Vendor or any officers, agents, servants, employees, contractors, or subcontractors. Neither Vendor, nor any officers, agents, servants, employees, contractors, or subcontractors of Vendor will be entitled to any employment benefits from City. Vendor will be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees, or contractors. 5. Insurance. During the Term of the Agreement, Vendor shall at its own cost and expense continuously maintain the following insurance coverages with insurers having an A.M. Best rating of at least A- VII or better: (i) Worker's Compensation insurance as required by Applicable Law; (ii) Employers' Liability insurance in the amount of $1,000,000 each accident, $1,000,000 each bodily injury disease and $1,000,000 aggregate bodily injury disease; (iii) Commercial General Liability insurance including premises -operations, property damage, products/completed operations, contractual liability, personal and advertising injury with limits of $1,000,000 per occurrence and $2,000,000 general aggregate, and $2,000,000 Products/Completed Operations aggregate; 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 6 of 10 (iv) Commercial Automobile Liability insurance, including hired, borrowed and non -owned automobile coverage, in the amount of $1,000,000 combined single limit each occurrence; (v) Umbrella liability with limits not less than $11,000,000 per occurrence and aggregate in excess of the limits in subsections (ii), (iii), and (iv) above; and (vi) Professional Liability insurance including Technology Errors and Omissions, Privacy and Cyber-Risk (Network Security) Liability insurance with a minimum limit of $10,000,000 each claim and annual aggregate. Vendor will provide City with certificates of insurance evidencing the above coverages upon request 6. Non -Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, contractors, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder, it will not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY VENDOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, CONTRACTORS, SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 7. Solicitation of Emolovees. Neither City nor Vendor will, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision will not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 8. Governmental Powers. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 9. No Waiver. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 10. Governing Law / Venue. This Agreement will be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action will lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 11. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 12. Force Maieure. City and Vendor will exercise their best efforts to meet their respective duties and obligations asset forth in this Agreement, but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the Party's performance, as soon as reasonably possible after the occurrence of the Force Majeure Event 13. Headings not Controlling. Headings and titles used in this Agreement are for reference purposes only, will not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 14. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement. 15. Amendments / Modifications. No amendment or modification of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. 16. Counteroarts. This Agreement may be executed in one or more counterparts and each counterpart will, for all purposes, be deemed an original, but all such counterparts will together constitute one and the same instrument. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 7 of 10 17. Immigration Nationalitv Act. Vendor must verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (1-9). Vendor must 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 WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR AGENTS. City, upon written notice to Vendor, will have the right to immediately terminate this Agreement for violations of this provision by Vendor. 18. Signature Authoritv. The person signing this Agreement hereby warrants that they have the legal authority to execute this Agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement and any amendment hereto, may be executed by any authorized representative of Vendor. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 19. Change in Companv Name. Vendor must notify City's Purchasing Manager, in writing, of a company name or address change for the purpose of maintaining updated City records. The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 20. No Bovcott of Israel. If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the 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" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. By signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 21. Prohibition on Bovcottine Enerev 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 Vendor's signature provides written verification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 22. 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 Vendor's signature provides written verification to the City that Vendor: (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. 23. Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. 24. Right to Audit. Vendor agrees that City will, until the expiration of three (3) years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records, of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that Citywill have access during normal working hours to all necessary Vendor facilities and will be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City will give Vendor reasonable advance notice of intended audits. 25. LIABILITY -VENDOR WILL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 0I-000592650 Page 8 of 10 ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF VENDOR, ITS OFFICERS, REPRESENTATIVES, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 26. GENERAL INDEMNIFICATION - VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, REPRESENTATIVES, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO VENDOR'S BUSINESS AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF VENDOR, ITS OFFICERS, AGENTS, REPRSENTATIVES, SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS. 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 01-000592650 Page 9 of 10 Exhibit B Services Agreement dated October 7, 2011 5500 Meadows Road, Suite 500, Lake Oswego, OR 97035 1 Toll Free: 1 (866) 297-0224 Confidential © 2022 NAVEX Global, Inc. All rights reserved. Ref.: 01-000592650 Page 10 of 10 • • CITY ONTRACT t� ethics nt Ca 4 Pin egrity lat work SERVICES AGREEMENT CLIENT INFORMATION: Name: City of Fort Worth, a Texas organization ("Client) ETHICSPOINT INFORMATION: Name: EthicsPoint, Inc., a Washington corporation ("EthicsPoint) Services Agreement Effective Date: Q b t, 1. ORDERS. Pursuant to this Services Agreement ("Agreenrenf�, Client may order from EthicsPoint (a) licenses to access and use one or more of EthicsPoint's proprietary governance, risk and compliance anonymous call center reporting hotline and software product offerings which (other than may be described below) will be hosted and made available by EthicsPoint in object code format on a software -as -a -service basis (each such offering a "Hosted Service.') and/or (b) related consulting, implementation or other professional services ("Professional Services"). The specifics of each Client order will be set forth on one or more of EthicsPoint's standard order forms that reference this Agreement and are executed by both parties (each, an "Order fornf�. Client's execution of an Order Form constitutes a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement. All mutually -executed Order Forms are incorporated herein by reference. In the event of any conflict between the terms of this Agreement and an Order Form, the terms of this Agreement will govern unless otherwise specifically stated in the Order Form. 2. LICENSE RIGHTS AND RESTRICTIONS. 2.1. Scope. Client may access and use the Hosted Services in accordance with this Section 2 subject to the limits and overage charges as are set forth on the applicable Order Form. Unless otherwise expressly set forth on an Order Form, pricing for the Hosted Services is based upon either (a) the then -current number of Client employees set forth on the Order Form (each an "Empioyee'� or (b) the number of anticipated Reports (defined below) submitted by Reporters (defined below) as set forth on the Order Form (each a "Report"). The number of licensed Employees or Reports may be increased through the ordering process set forth in Section 1 above. The Hosted Service may include one or more components that include call center functionality. As used herein, (y) a "Reportee is any individual (Employees and/or non -Employees) permitted by Client to access and use the reporting features of the Hosted Services and (z) a "Report' means the following: (i) any information reported by a Reporter about Client or its business or personnel via the Hosted Services, (ii) any communications directed by Client to a Reporter via the Hosted Services and any Reporter responses thereto, or (iii) any notes, summaries or other data uploaded to the Hosted Services by Client representatives. 2.2. Hosted Services and Technical Documentation. During the applicable Subscription Term (as defined in Section 6.2 below) and subject to the terms and conditions of this Agreement, EthicsPoint hereby grants to Client a limited, worldwide, non-exclusive, non -transferable (except pursuant to Section 13) license to: 2.2.1. access, use, perform and display the Hosted Services in a production environment, and allow Employees to access and use applicable user -interface portions of the Hosted Services to (among other things) create, submit and monitor the processing of Reports, in any case solely for Client's internal business purposes related to governance, risk and/or compliance; and 2.2.2. use and make a reasonable number of copies of any user guides, EthicsPoint's Network Continuity and Security Implementation plan, product workbooks and other technical documentation made available to Client by rev. 0210 10 - 0 7 -1 1 A 1 0: 17 1 N Confidential EthicsPoint that describes the operation and/or functionality of the products and Hosted Services (collectively, "Technical Documentation') solely for Client's internal business purposes. 2.3. Administrative Riahts. The Hosted Services will include a restricted -access administrative interface component ("Administrative interface') to allow employees designated by Client ("Primary Administrator`s to access the configuration and settings components of the Hosted Services to manage, configure and monitor the Hosted Services for Client's benefit. An authorized officer ("Authorized Officer's who is authorized to add, replace or remove the Primary Administrator by providing email notice to EthicsPoint at clientservices@ethicspoint.com, will also be designated by Client. The Primary Administrator will be provided access to and use of the Administrative Interface ("Admin UserAccess�), all submitted Reports and other features of the Hosted Services. Client shall be responsible for ensuring the security and confidentiality of all Admin User Access. Client acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access. Collectively, the Primary Administrator, other Administrators (if applicable) and Reporters are referred to as "Userg'. 2.4. Restrictions and Reauirements. Except as otherwise expressly permitted under this Agreement, Client agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Hosted Service or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Hosted Services (or any portion thereof) to third parties other than Users, including, but not limited to, making such Hosted Service commercially available as an application service provider, service bureau, or rental source; (c) create modifications to or derivative works of the Hosted Services (or any portion thereof including the products); (d) reproduce the Hosted Services (or any portion thereof including the products) or Technical Documentation; (e) use the Hosted Services in a manner not authorized under the Technical Documentation or in violation of any Applicable Laws (as defined below), (f) in any way access, use, or copy any portion of the Hosted Services (or any portion thereof) (including the logic and/or architecture thereof and any trade secrets included therein) or the Technical Documentation to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Hosted Service; (g) use the Hosted Service, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without EthicsPoint's prior written consent; or (h) permit access to the Hosted Service or Technical Documentation by a direct competitor of EthicsPoint. Within 30 days after EthicsPoint's request, Client will provide a certified report or similar documentation signed by an authorized representative of Client that discloses the actual number of individuals employed by Client ("Employee Count Reporfl as of the date of the Employee Count Report. As used in this Agreement, "Applicable Laws" means, with respect to a party, any applicable law, rule or regulation, including any export/import laws as applicable solely to such party. 2.5. Client Content. Client hereby grants to EthicsPoint a limited, non-exclusive, non -transferable (except pursuant to Section 13) royalty -free license to reproduce, perform, display, create derivative works of (solely for formatting purposes) and otherwise use any and all text, graphics, data, or other materials (including, without limitation trademarks and service marks and copyrighted material) (collectively, "Client Content) solely in connection with EthicsPoint's provision of the Hosted Services for Client and its Users (and no other party) under this Agreement. 2.6. Reuort Availabilitv. EthicsPoint will use commercially reasonable efforts to make English -language versions of the Reports available to Client for review and processing (a) within 12 hours of receipt, for Reports submitted in English or Spanish and (b) within 48 hours of receipt for Reports submitted in any language other than English or Spanish. The foregoing target response times exclude weekends and US national holidays. EthicsPoint will notify Client if complications or delays will affect its ability to provide translated Reports in the above -described timelines. 2.7. Web Services. Client may, if it purchases certain versions of the Hosted Services, purchase certain additional web services (" Web Services�� that will enable Client to enhance and expand the features and functionality of the Hosted Services through use of EthicsPoint's application programming interfaces ("EthicsPointAPM. Pricing and additional terms pertaining to the Web Services and EthicsPoint APIs will be set forth on the Order Form. If Client purchases a license to the Web Services, Client will have the right to (a) use the EthicsPoint APIs to develop plug -ins and other feature enhancements for the Hosted Services ("Client Plug -Ins') and (b) receive related email and phone support from EthicsPoint. Client (and expressly not EthicsPoint) is solely responsible for any Client Plug -Ins including, without limitation (y) any impact that any Client Plug -In may have upon any Hosted Services including the performance thereof, and (z) maintaining compatibility with any updates or upgrades that EthicsPoint may make to the EthicsPoint APIs; provided that EthicsPoint will deliver to the Primary Administrator electronic notice of any changes to the EthicsPoint APIs at least 30 days in advance of such changes becoming effective. 3. DELIVERY OF SERVICES; USER DATA. 3.1. Hostino Infrastructure. During the applicable Subscription Term, subject to Client's payment of all related Fees (as defined in Section 5.1 below), EthicsPoint will be responsible for the set-up, hosting and management of the Hosted Service, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure ("Hosting lnfrastructurdo necessary to permit Client and Users to access and use the Hosted Service in accordance with this Agreement and the Technical Documentation. EthicsPoint will manage and install within the Hosting Infrastructure all updates and upgrades that EthicsPoint makes generally available to its customers for the Hosted Service. 3.2. Personal Information and Data. 3.2.1. Client acknowledges and agrees that through the use and provision of the Hosted Services by Client and Users, certain personally identifiable information pertaining to Users ("User P.11'7 may be collected, processed, used and/or stored by EthicsPoint ("Pll Usage(% including, without limitation through the generation and processing of Reports. Client is responsible for establishing and enforcing terms of use and privacy policies ("Client Policies' pertaining to the use of the Hosted Service including (a) authorization of Client's use of the Hosted Service and EthicsPoint's PII Usage as permitted under this Agreement and the Technical Documentation and (b) to ensure compliance with Applicable Law. 3.2.2. Client will have sole responsibility for directing the deletion and use of any Report, User PII or other data residing in the Hosted Service. EthicsPoint will have no responsibility, liability or obligation with respect to any such Report, information or data that has been purged, overwritten or otherwise destroyed as directed by Client. 3.2.3. EthicsPoint (a) shall establish and maintain appropriate technical and organizational measures to protect against unauthorized access to any User PII that is stored within the Hosting Infrastructure, and (b) shall not (i) utilize User PII for any purpose other than to provide Hosted Services to Client and Users or (ii) disclose any User PII to any person not authorized by Client (except as necessary to comply with Applicable Law). 3.2.4. EthicsPoint may collect, store, use, disclose or make publicly available certain activity log data relating to the use of the Hosted Service for benchmarking purposes. Any disclosure of such information will be done so in an aggregated and anonymous format. 3.2.5. EthicsPoint's transfer of any User PII will be in compliance with the U.S. Department of Commerce European Union and Swiss Safe Harbor Guidelines ("Guidelines'. If EthicsPoint no longer complies with the Guidelines, Client will have the option (as its sole remedy) to execute a data transfer agreement, in a form and format reasonably acceptable to EthicsPoint, to ensure ongoing privacy protection for relevant individuals. All EthicsPoint subcontractors with access to User PII will be contractually required to comply with the Guidelines or relevant laws for the transfer and processing of User PII. 3.2.6. EthicsPoint will act solely on the instructions of Client in respect of all User PII, unless otherwise prohibited by the Guidelines or Applicable Law. 3.2.7. EthicsPoint will inform Client in a timely manner of any (a) confirmed security breach regarding or disclosure of User PII, (b) complaint by a User concerning disclosure or other unauthorized use of User PII or (c)any other complaint or request relating to EthicsPoint's obligations under the Guidelines or corresponding Applicable Laws in other jurisdictions. 4. SUPPORT SERVICES; PROFESSIONAL SERVICES. 4.1. Supoort Services. During the applicable Subscription Term, subject to Client's payment of all related Fees, EthicsPoint shall provide support services to Client via phone, online services or email, as made available by EthicsPoint, from 7:00 a.m. to 4:00 p.m. Pacific Time, Monday through Friday (excluding national holidays recognized by EthicsPoint), regarding the Hosted Service. Client will provide all support to Client's Users with respect to any questions, issues or requests that a User may have about the Hosted Service. EthicsPoint will provide Client with (a) at least 6 months' notice prior to ending support for any particular operating system or browser and (b) 12 months' notice prior to ending access or provision of any Hosted Service and will provide Client with a migration path to a substitute product at no charge. Such notices will be in writing and may be delivered to the Primary Administrator via email. 4.2. Professional Services. In the event that Client has ordered Professional Services as specified on an Order Form, EthicsPoint will perform the Professional Services described in one or more statements of work or services proposals that reference such Order Form (each, a "PS Statement of Worie�. Each PS Statement of Work will be binding upon mutual execution by the parties and will set forth the following at a minimum: (a) the Professional Services to be performed, (b) any deliverables resulting from such Professional Services ("Deiiverabies'% (c) any specifications or other requirements pertaining to such Professional Services or Deliverables ("Specification'% (d) the schedule for performance of such Professional Services ("Scheduief% (e) Fees for such Professional Services and Deliverables, (f) any applicable assumptions or conditions and (g) any other terms mutually agreed upon by the parties. All PS Statements of Work entered into by the parties will specifically reference this Agreement and the related Order Form and are deemed incorporated as part of this Agreement. EthicsPoint will provide all Deliverables in accordance with this Agreement and the Specifications and Schedule. Except with respect to any of Client's Confidential Information or pre-existing intellectual property included therein (collectively, "Ciient.T.0% EthicsPoint will retain all right, title and interest in and to all Deliverables (including any and all intellectual, property rights therein) and Client hereby irrevocably assigns to EthicsPoint any and all ownership rights it may have in or to such Deliverables (including any and all intellectual, property rights therein). Client's rights to the Deliverables shall be the same as the rights granted to Client under the Agreement with respect to the Hosted Solution to which such Deliverable pertains. Notwithstanding any other provision of this Agreement, if, through no fault of EthicsPoint, Client does not "go -live" with the Hosted Service in a production environment by the Commencement Date, then (y) EthicsPoint will not be liable for any such delay and (z) EthicsPoint reserves the right to charge additional fees to implement such Hosted Services for Client. S. FEES AND PAYMENT. 5.1. Fees. Subject to the terms and conditions below, all Fees for use of the Hosted Services (including any set-up, implementation and/or license Fees) and, if applicable, Professional Services (collectively, the "Fees'? will be set forth on the applicable Order Form. 5.2. Pavment Terms. Unless otherwise agreed to in writing by the parties, Client will pay to EthicsPoint all undisputed Fees owed within thirty (30) days after the date of EthicsPoint's invoice pertaining thereto or such other period as may be specified in the Order Form. All Fees pertaining to any renewal of a Subscription Term will be invoiced at least 30 days prior to the renewal date and will be due no later than the commencement of the subsequent renewal Subscription Term. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States. Client is a tax exempt entity and should not be subject to any taxes pursuant to this Agreement. Evidence of such tax exempt status will be provided to EthicsPoint upon request. In the event Client ceases to be a tax exempt entity, Client agrees to pay all taxes (foreign, federal, state, or local sales, excise, use, or similar taxes.) properly levied at such time. In the event that any Fees are more than 30 days past due, EthicsPoint will have the right, in addition to all other rights and remedies available to it, to suspend access to the Hosted Service and the processing of all Reports upon 10 days written notice. 6. TERM AND TERMINATION. 6.1. Term of Aareement. This Agreement shall continue in effect until terminated as set forth herein. The initial Subscription Term for each license purchased will be as set forth in the applicable Order Form. 6.2. Subscription Terms; Adiustment; Renewal. The term of each subscription to a Hosted Service purchased by Client will commence on the date specified in the relevant Order Form ("Services Commencement Date's and will continue for the period set forth on such Order Form, subject to any adjustment and/or renewal as described in this Section 6.2 (collectively, the "Subscription Term'). Each Hosted Service subscription will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of two (2) successive one (1) year terms (ii) at the same Fees applicable during the immediately preceding term except that either party may terminate or amend the Agreement by notifying the other at least 30 days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term or that renewal shall not be subject to the same terms. 6.3. Termination. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non -breaching party (except that such cure period shall be 5 days for breaches of Sections 2 or 8), (b) as set forth in Section 10.1, or (c) by either party upon written notice at any time that no Order Form is then - outstanding. Upon termination of this Agreement, all Order Forms will also terminate. 6.4. Effect of Termination. Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.4, 5, 6.4, and 7 through 13 shall survive termination, (b) upon written request by Client within thirty (30) days following the effective date of such termination, EthicsPoint will create and deliver to Client, at Client's sole cost and expense, a copy of all Reports then in existence in the Hosted Service, and (c) Client shall pay to EthicsPoint any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination. 6.5. Termination for Convenience. Client may terminate this Agreement without cause (termination for convenience) upon 30 days written notice to EthicsPoint. 7. PROPRIETARY RIGHTS. As between the parties, EthicsPoint will retain all ownership rights in and to the Technical Documentation, the Hosted Service, all Deliverables and all updates, upgrades and other derivative works thereto and all intellectual property rights incorporated into or related to the foregoing. All rights not expressly licensed by EthicsPoint under this Agreement are reserved. As between the parties hereto, Client and its Users will retain all ownership rights in and to all Reports and all contents of a Report. Client will retain ownership to all Client IP. 8. CONFIDENTIAL INFORMATION. "ConFdentiai Information" means, with respect to a party (the "disclosing party, information that pertains to such parry's business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the "receiving partyo knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing parry's Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. The receiving party will promptly notify the disclosing party of any accidental or unauthorized disclosure or loss of the disclosing parry's Confidential Information and will cooperate with the disclosing party to remedy such disclosure or loss to the extent reasonably practical. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure. The parties acknowledge that the Hosted Services and each party's Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each parry's Confidential Information, the Hosted Services, or any information or data contained therein. 9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER. 9.1. Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, and (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered. 9.2. By EthicsPoint. EthicsPoint represents and warrants that: (a) the Hosted Services, as delivered and when used in accordance with the then -current Technical Documentation, will perform in all material respects as specified in such Technical Documentation during the applicable Subscription Term, (b) all Services will be performed in a professional and workman like manner in accordance with industry standards, (c) unless configured otherwise by or at the direction of Client, those Hosted Services and Call -Center Services that collect and/or process User PII to develop Reports will include processes and functionality designed to ensure the anonymity of the User to whom such Report relates, (d) EthicsPoint will not knowingly introduce any "back door," `time bomb," "Trojan horse," "worm," "drop dead device," "virus," "preventative routines" or other computer software routines within the Hosted Service that are intentionally designed to permit unauthorized access to or use of Client's computer systems (" Viruses'. In the event of any breach of the warranty in subsection (a) above, EthicsPoint shall, as its sole liability and Client's sole remedy after providing written notice to EthicsPoint, diligently remedy any deficiencies that cause the Hosted Service to not perform in all material respects as specified in such Technical Documentation during the applicable Subscription Term. EthicsPoint will not be liable to the extent that any breach of the foregoing warranties are caused by: (i) components or content (including in combination with the Hosted Service) not provided by EthicsPoint (including any Client Content or Client Plug -Ins); (ii) unauthorized use or use of the Hosted Service other than in accordance with the Technical Documentation and this Agreement; or (iii) Viruses introduced by Client or its agents or Users (collectively, "Exciusions'�. 9.3. By Client. Client represents and warrants that (a) it owns or has sufficient right in the Client Content to grant the license set forth in Section 2.5, and (b) all Client Policies will be implemented and enforced. 9.4. Disclaimer. THE EXPRESS WARRANTIES IN THIS SECTION 9 ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. Client further acknowledges that while the Hosted Services are designed to assist Client in complying with Applicable Laws, Client will have sole responsibility to ensure that it remains in compliance with Applicable Laws and uses the Hosted Services to facilitate such compliance. Client will not rely solely on its use of the Hosted Services in complying with Applicable Laws. Other than EthicsPoint's breaches of this Agreement or gross negligence, EthicsPoint will have no liability to Client as a result of the contents of any Report or Client's actions or inactions with respect to any Report. 10. INDEMNIFICATION. 10.1. By EthicsPoint. EthicsPoint is responsible for its own negligence, gross negligence, wilful misconduct or legal wrongdoing in any way connected with the performance of any work under this Agreement which results in claims or liabilities, penalties, costs or expenses. 10.2. By Client. Client is responsible for its own negligence, gross negligence, wilful misconduct or legal wrongdoing in any way connected with the performance of any work under this Agreement which results in claims or liabilities, penalties, costs or expenses to the extend allowed by law. 11. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) FAILURE TO PAY AMOUNTS PROPERLY OWED, (II) BREACHES OF SECTION 8, OR (III) VIOLATIONS OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS ABOVE, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EACH PARTY'S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE HOSTED SERVICES SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO ETHICSPOINT BY CLIENT UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES. 12. PUBLICITY. Client may use EthicsPoint's name in press releases and other communications pertaining to Client's agreement to use EthicsPoint's products and services. 13. MISCELLANEOUS. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer -employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other parry's prior written consent except (a) to any party that controls, is controlled by or is under common control of the assigning party (i.e. an affiliate) or (b) pursuant to a transfer of all or substantially all of such party's business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Promptly following any permitted assignment of this Agreement, the assigning party shall notify the other party in writing and, if Client is the assigning party, Client will cause the assignee to certify in writing the number of employees of the assignee and if such number exceeds the number of Employees for which Client is licensed, additional license Fees must be paid promptly by the assignee based upon the excess number of employees. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Texas, without regard to Oregon conflict of laws rules. The prevailing party shall be entitled to recover reasonable attorney's fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by EthicsPoint. The terms on any purchase order or similar document submitted by Client to EthicsPoint will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the Order Form and are deemed delivered when received. This Agreement may be executed in counterparts and electronic and facsimile signatures are valid. 14. RIGHT TO AUDIT. EthicsPoint agrees that Client shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the EthicsPoint involving transactions relating to this Agreement. EthicsPoint agrees that Client shall have access during normal working hours to all necessary EthicsPoint facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. Client shall give EthicsPoint reasonable advance notice of intended audits. EthicsPoint further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that Client shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that Client shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. Client shall give subcontractor reasonable notice of intended audits. 15. INSURANCE. EthicsPoint shall provide Client with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 15.1 Coveraoe and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Property damage $500,000 Bodily injury per person per occurrence Coverage shall be on any vehicle used by EthicsPoint, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non -owned (c) Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Technology Liability (Errors & Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Technology E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims -made, and 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 Client to evidence coverage. 15.2 Certificates. Certificates of Insurance evidencing that EthicsPoint has obtained all required insurance shall be delivered to Client prior to EthicsPoint proceeding with any work pursuant to this Agreement. All policies shall be endorsed to name Client as an additional insured thereon, as its interests may appear. The term Client shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of Client to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to Client. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto EthicsPoint's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the Fort Worth Attorney at the same address. Agreed: ETHICSPOINT, INC.: TITLE: I ^ DATE: % Iatc6f CITY OF FORT WORTH: ACCEPTED: By: Assistant City Manager Date: APPROVED AS TO FORM AND LEGALITY: By: Assistant City Attorney APPROVED .• MY ATTEST: B n� IAA Y� —t� Marty Hendrix City Secretary Date: 10 I -1 � 0�:0 CONTRACT AUTHORIZATION: M&C: None Required