HomeMy WebLinkAboutContract 42406 t '
• • CITY SECRETARY
ethicsop
' CONTRACT NO. �a 41D LP
egrity at work
SERVICES AGREEMENT
CLIENT INFORMATION:
Name: City of Fort Worth, a Texas organization ("CiienF)
ETHICSPOINT INFORMATION:
Name: EthicsPoint, Inc., a Washington corporation ("EthicsPoint")
Services Agreement Effective Date: OC,-b_ R_r 'I . ak
1. ORDERS. Pursuant to this Services Agreement ("Agreement`s, 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 ("ProfessionaiService l�. 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 Form'. 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 "Repore�. 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 "Reporter" 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 "Reporr 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
Q �CIL ECORD
2.2.2. use and make a reasonable number of copies of any user guides, EthicsPoi t s e or/ o nd
Security Implementation plan, product workbooks and other technical documentation m dGITIA94it by
FT. WORTH, TX
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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 Rights. The Hosted Services will include a restricted-access administrative interface
component ("Administrative Interface") to allow employees designated by Client ("Primary Administrator") 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 Offce,*`� 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 User Access"), 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"Osers".
2.4. Restrictions and Requirements. 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
Report") 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
pa rty.
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. Report Availability. 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 ("EthicsPointAPls"). 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. Hosting 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 Infrastructures 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 PIPS may be collected, processed, used
and/or stored by EthicsPoint (''PII 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 Poiicies'�
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 (''Guideiines'�. 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. SuRRort 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 Wori'�. 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 ("Specifications%
(d) the schedule for performance of such Professional Services ("Schedule''),
(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,
"CiientI.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. Payment 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.
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6. TERM AND TERMINATION.
6.1. Term of Agreement. 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; Adjustment; 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") 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. "Conridential Information' means, with respect to a party (the "disclosing
party'), information that pertains to such party'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 party 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 party'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 party'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 parry
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 party'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 party'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 Coverage 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.:
BY:
APPROVED
NAME: (2�d' ff47 7d, EthicsPoint Legal
TITLE: (�11 P,T � /�lI - C�t l�� > BpS
DATE: q6 c /// [date: g12,tal11
CITY OF FORT WORTH:
ACCEPTED: ATTEST:
By: — By:
Marty Hendrix tj ,v'd O Ln
Assistant City Manager City Secretary AV 00000
00
Date: Date: 1 �° 0S
dv° °
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APPROVED AS TO FORM AND LEGALITY: CONTRACT AUTHORIZATION: �� °°°00°00°°°° a
�- a44 iX4����
By: L ,,, M&C: None Required
Assistant City Attorney OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ethics * intc
integrity at Mork
6000 Meadows Road,Suite 200 Lake Oswego,OR 97035/Toll Free:1(866)297-0224/Fax:(503)352-1090
ORDER FORM No. 1
I.GENERAL INFORMATION
CLIENT INFORMATION: BILLING INFORMATION:
Name: City of Fort Worth,Texas Contact Name: James Rodriguez
Address: 1000 Throckmorton St. Address: 1000 Throckmorton St.
FortWorth, TX 76102 FortWorth, TX 76102
Email: james.rod rig uez@fortworthgov.orgPhone: (817)392-2057 Fax:
II.ORDER INFORMATION
Client Type: Existing Client
Order Form Effective Date:
Services Agreement Effective Date:
Subscription Term: Commencement Date:September 25,2011
Length:12 months from the Commencement Date
III.SERVICES INFORMATION
Hosted Services-Please see attached document for services listing.
Hosted Service Name If of Licensed Employee One-time Set-up and Annual Subscription Fee Overaoes
Users or Reports Implementation Fee
Hotline/Helpline Per Report Subscription 50 $2,500.00
Total Combined Fees: $0.00 $2,500.00
Total First Term Fee: $2,500.00
IV.OTHER TERMS
1. Hotline/Helpline Annual Subscription Fee is based on Client's use of EthicsPoint's web-based and telephone reporting system.The Annual Subscription Fee
includes 50 Reports annually.Client shall be charged$40 per Report for all Reports received by EthicsPoint in excess of the annual allotment.
2. All Fees for the Subscription Term are due 100%upon the execution of this Services Agreement.
3. All Fees for the Services for any Renewal Term will be invoiced to Client at least 30 days prior to the renewal date and will be due on or before the renewal date.
4. Translation and Interpretation Fees and overages will be invoiced monthly in arrears.
V.GENERAL TERMS
This Order Form is made effective as of the Order Form Effective Date,sets forth the services to be provided by EthicsPoint,Inc.("EthicsPoint")to the entity referenced above
("Client")and is governed by the terms of a written Services Agreement dated as of the Services Agreement Effective Date set forth above between EthicsPoint and Client
(the"Agreement").The parties agree that this Order Form is incorporated by reference into the Agreement as an additional product and/or services order as of the Order Form
Effective Date.Except as otherwise defined herein,all capitalized terms used in this Order Form shall have the meanings attributed to them in the Agreement.This Order
Form supersedes any related quotation issued by EthicsPoint pertaining to the products and services set forth above.
ACCEPTED BY CLIENT: ACCEPTED BY ETHICSPOINT,INC.:
SIGNATURE: / / ✓L SIGNATUREi. �C.
�CIAL RE
� CORD
CITY SECRETARY
F . WORTH, TX
DATE: DATE:_
NAME: NAME:�( �
TITLE: TITLE: 0'11 eT_;I VY/f (Jl 1111'!
VI.PRODUCT DESCRIPTIONS
Hotline/Helpline Per Report Subscription
The epHotline solution has been designed to enable your employees and other stakeholders to easily and confidentially report any issue or instance of misconduct.The
Contact Center is globally accessible 24/7/365 with system availability ensured by end-to-end network redundancy,scalability,and reliability.Live telephone interpretation
support is available in 188 languages.
Includes:
• Unique Domestic Toll-free Number(or transfer of existing)
• Toll-free hotline access for all domestic&most international calls
• Reporting via web,telephone,or internal
• Access to EthicsPoint Standard Awareness/Rollout Materials
• Includes Basic Membership to Open Compliance Ethics Group with Free 90-day trial Premium Membership