Loading...
HomeMy WebLinkAboutSizeUp Inc; 2025-01-16;DM2\20267285.1 SizeUp Local Business Intelligence (Software As A Service) Agreement This SizeUp (Software As A Service) Agreement, effective as of -DQXDU\__, 202is entered into by and between SizeUp, Inc. a California corporation (“SizeUp”) and the City of Carlsbad, California, a municipal corporation (“Client”). In consideration of the mutual promises and upon the terms and conditions below, the parties agree as follows: 1. License. Subject to the terms and conditions of this Agreement, SizeUp will provide Client with online access to the SizeUp software for use as described in Exhibit A attached hereto (or a product with identical functionality even if marketed under a different product name), including updates, bug fixes, or other minor enhancements or improvements that are made generally available by SizeUp for users of SizeUp software (hereafter the “Services”). Subject to the terms and conditions of this Agreement, and upon payment in full to SizeUp, SizeUp grants to Client a personal, nontransferable, nonsublicensable, nonexclusive limited license to use the Services for Clients’ own use, in accordance with any documentation provided by SizeUp, to allow Client’s website users to use SizeUp services as provided by SizeUp. Subject to the terms and conditions of this Agreement, and upon payment in full to SizeUp, SizeUp also grants to Client a personal, nontransferable, nonsublicensable, nonexclusive limited license to download and embed the SizeUp widget software (“Widget Software”) on Client’s website solely, in accordance with any documentation provided by SizeUp, for the purpose of providing users of Client’s website the ability to use SizeUp services as provided by SizeUp. Client agrees that it shall not: i) distribute, rent, sell, lease, license, assign or otherwise transfer all or any part of the Services or Widget Software (including any associated documentation) and Client’s rights to use such Services, except for use by web site end-users as described herein, ii) reverse engineer or otherwise attempt to discover source code or underlying ideas or algorithms of the Services or Widget Software, or iii) modify or create derivative works based on the Services or Widget Software, including any modification to the text, layout, marks, logos or designs that appear in the SizeUp Widget. If Client does modify or create derivative works, Client agrees to assign, and hereby does assign to SizeUp, all right, title and interest in and to all and any modifications and derivative works of the Services or Widget Software created by Client. For the sake of clarity, this Agreement does not grant Client any rights in the Widget Software, except for the right to embed the Widget Software on its website in accordance with the license granted above. SizeUp retains the sole and exclusive right to control and direct the manner or means by which Services are performed, and may employ or subcontract others with respect to such services. Nothing herein entitles Client to actual possession of any software other than as to the license for the Widget Software. 2.Client’s Duties and Responsibilities; Data.Client must follow SizeUp’s instructions how to add the Services or Widget Software to Client’s website, including updated instructions, modifications, additions or deletions to the Widget Software, as may be updated and provided by SizeUp. Services are offered as or through an embedded tool. Data provided through the Services comes from a variety of sources and is provided on an "as is" basis. SizeUp makes no guarantee or representation about the accuracy or completeness of the information, and disclaims all warranties, express or implied, including but not limited to warranties of merchantability, and fitness for a particular purpose . See Section 6. SizeUp is not responsible for any damages arising from the use of Services. It is the responsibility of anyone using Services to independently investigate the information's accuracy and completeness, and to determine to their satisfaction the suitability of the information for any needs. Any projections, opinions, assumptions or estimates used are for example only and do not represent the current or future performance of any business. 3. Fees and Payment. 3.1 Fees. The fees for the Services and Widget Software during the Initial Term are specified in Exhibit A. Client shall pay SizeUp the fees for the Initial Term within thirty (30) days of receipt of the Initial Term invoice. Renewal fees shall be negotiated if the parties mutually agree to a Renewal Term and any such applicable fees shall be paid within thirty (30) days of receipt of the Renewal Term invoice. SizeUp may cease provision of Services at any time if payment is not timely made and/or suspend or terminate the licenses granted herein.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 2 2023.12.06-11:45AM 017005.7000\2564684.1 3.2 Taxes. If Client is not a tax-exempt entity, Client shall pay or reimburse any and all federal, state, dominion, provincial or local sales, use, personal property, excise, or other taxes, fees or duties arising from or related to this Agreement (other than taxes based on SizeUp’s net income). 4. Ownership. Client acknowledges that, as between SizeUp and Client, all right, title and interest in the Services and Widget Software including SizeUp Local Business Intelligence, and any other SizeUp materials furnished or made available hereunder, and all modifications, enhancements and improvements thereof, including all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by SizeUp, or SizeUp’s licensors and providers, if any. There are no implied rights. Any rights not granted under this Agreement are reserved by SizeUp. 5. Confidential Information. To the extent permitted by law, Client agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to SizeUp’s technology or business, including, but not limited to: information relating to products or technology of SizeUp or the properties, composition, structure, use or processing thereof, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, inventions, and other technical, business, financial, and product development plans, forecasts, strategies and information (all of the foregoing, “Confidential Information”). Client shall use reasonable precautions to protect SizeUp’s Confidential Information. Confidential Information shall not include information that (a) is in or enters the public domain including in reasonably available public or government databases through no improper action or inaction by Client; (b) was rightfully in the Client’s possession or known by it prior to receipt from SizeUp; (c) was rightfully disclosed to the Client by another person without restriction; or (d) was independently developed by Client by persons without access to such information and without use of any Confidential Information of SizeUp. Client may disclose Confidential Information that is required to be disclosed by a court or other adjudicative body provided that reasonable measures are taken to minimize disclosure and guard against further disclosure, and also provided that Client gives SizeUp prior written notice of the proposed disclosure to allow SizeUp to seek protection for the Confidential Information. For clarity, Confidential Information shall not include information subject to the California Public Records Act (CA Government Code § 6250 et seq.), California Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.), and other applicable laws. 6. Warranty Disclaimer; Limitation of Liability. SIZEUP FOR ITSELF AND ITS LICENSORS IF ANY, MAKES, AND CLIENT RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARISING IN ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES THEREUNDER, AND SIZEUP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WITH THE EXCEPTION OF SIZEUP’S IP INDEMNIFICATION OBLIGATION AS SET FORTH IN SECTION 12, THE PARTIES AGREE THAT LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES AND SOFTWARE BY CLIENT. IN NO EVENT SHALL THE PARTIES HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION. 7. Term and Termination. The Term of this Agreement will be effective for a period of one (1) year from the date first above written (“Initial Term”). The City Manager may amend the Agreement to extend it for three (3) additional one (1) year terms or parts thereof (“Renewal Term(s)”). Extensions will be based upon a satisfactory review of SizeUp’s performance, Client needs, and appropriation of funds by the City Council. The Parties will prepare a written amendment indicating the effective date, applicable fees, and length of the Renewal Term. Any such Renewal Term shall be subject to the same terms and conditions of this Agreement, except for the renewal fee which may change after the initial term. Notwithstanding the foregoing, SizeUp or Client may immediately terminate this Agreement if either party determines that the other party has failed to materially comply with any of the terms and conditions of this Agreement, or may terminate for convenience provided that SizeUp offers Client a pro-rata reimbursement for the time period that the Services are not provided due to such termination for convenience. This Agreement may be terminated by either party if the other party (i) fails to pay any amount due under this Agreement within ten (10) days after written notice of such nonpayment, or (ii) commits a material breach of this Agreement,      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 3 2023.12.06-11:45AM 017005.7000\2564684.1 which breach, if capable of being cured, is not cured within thirty (30) days of written notice of termination. Termination by any means will not affect the provisions of this Agreement relating to the payment of amounts due, or the provisions of Sections 4 (Ownership), 5 (Confidential Information), 6 (Warranty Disclaimer; Limitation of Liability), and 10 (General Provisions) of this Agreement, all of which will survive termination of this Agreement, regardless of the reason for termination. Upon termination, all licenses and rights to the Services and Widget Software that are granted hereunder shall terminate, and Client shall immediately return to SizeUp, SizeUp’s proprietary and confidential information, and documentation regarding use of the Services and Widget Software, if any, along with a signed, written statement certifying that Client has returned to SizeUp, and is no longer in possession of the foregoing items. 8. Government Use.If Client is a unit or agency of the government, or licensing use of the Services by payment with government funds, the Services are provided subject to SizeUp’s standard commercial terms, set forth in this Agreement. 9. Reference: Client agrees that SizeUp may identify Client as a customer on its brochures, websites, and other marketing materials, and describe the project and the Services provided by SizeUp to Client. Nothing herein constitutes an endorsement of SizeUp by Client. 10. General Provisions. This Agreement is not assignable or transferable by Client or SizeUp without prior written approval, and any such attempted assignment or transfer shall be void and without effect. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with, the other party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party. This Agreement shall be governed by and construed in accordance with the laws of the State of California or applicable federal law without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on the International Sales of Goods. The parties agree that any dispute relating to this Agreement shall be heard in the courts located in California, San Diego County, and the parties consent to jurisdiction and venue therein. The waiver by either party of a breach of this Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties hereto related to the subject matter hereof, and any and all written or oral agreements are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties hereto. Pre-printed purchase order terms and any other additional terms, and any terms in conflict with this Agreement, shall be void and of no effect. 11. Indemnification. SizeUp agrees, using counsel of its choosing, to defend, indemnify, and hold harmless the Client and its officers, elected and appointed officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the SizeUp, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Client shall defend, indemnify and hold SizeUp harmless from any and all claims, injuries, damages, losses or suits arising out of a claim (i) of any breach of this Agreement by Client, its affiliates, employees agents, successors and assigns; and (ii) relating to or based on the activities conducted by Client, its employees, contractors and agents, using or that used the Services; and Client shall pay any final judgment entered against SizeUp in any such proceeding or agreed to in settlement. Client shall be released from the above indemnification obligation unless SizeUp provides Client with: i) reasonably prompt written notification of the claim or action; ii) sole control and authority over the defense or settlement thereof; and iii) at no cost to Client, all reasonably available information and assistance reasonably necessary to settle or defend any or action.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 4 2023.12.06-11:45AM 017005.7000\2564684.1 12. IP INDEMNIFICATION Indemnification.SizeUp shall, using counsel of its choosing, indemnify, defend, and hold harmless Client from and against any and all Third Party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) (collectively, “Damages”) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party intellectual property rights by Client’s authorized use of the software. The foregoing provisions of this section shall not apply to the extent the Damages relate to or arise out of: (i) Client Data; (ii) Client Content; or (iii) unauthorized use and/or alteration of the software by Client. Infringement Cures.Should the software or any part thereof become, or in SizeUp’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party intellectual property right, then SizeUp shall, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the software (“Affected Software”) free of any liability for infringement; or (ii) replace or modify the Affected Software with a non-infringing substitute otherwise materially complying with the functionality of the replaced system; or (iii) if neither of the foregoing is reasonably practicable, terminate the right to use and access the Affected Software and refund unused prepaid fees. 13. INSURANCE SizeUp will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by SizeUp or SizeUp’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 13.1 Coverages and Limits. SizeUp will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on SizeUp's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by SizeUp pursuant to this Agreement are adequate to protect SizeUp. If SizeUp believes that any required insurance coverage is inadequate, SizeUp will obtain such additional insurance coverage, as SizeUp deems adequate, at SizeUp's sole expense. The full limits available to the named insured shall also be available and applicable to the Client as an additional insured. 13.1.1 Commercial General Liability (CGL) Insurance.Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 13.1.2 Automobile Liability. (If the use of an automobile is involved for SizeUp's work for Client). $2,000,000 combined single-limit per accident for bodily injury and property damage. 13.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if SizeUp has no employees and provides, to Client’s satisfaction, a declaration stating this. 13.1.4 Professional Liability. Errors and omissions liability appropriate to SizeUp’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 13.2 Additional Provisions. SizeUp will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions:      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 5 2023.12.06-11:45AM 017005.7000\2564684.1 13.2.1 The Client will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the Client. 13.2.2 SizeUp will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 13.2.3 If SizeUp maintains higher limits than the minimums shown above, the Client requires and will be entitled to coverage for the higher limits maintained by SizeUp. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage will be available to the Client. 13.2.4 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to Client sent by certified mail pursuant to the Notice provisions of this Agreement. 13.3 Providing Certificates of Insurance and Endorsements. Prior to Client's execution of this Agreement, SizeUp will furnish certificates of insurance and endorsements to Client. 13.4 Failure to Maintain Coverage. If SizeUp fails to maintain any of these insurance coverages, then Client will have the option to declare SizeUp in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. SizeUp is responsible for any payments made by Client to obtain or maintain insurance and Client may collect these payments from SizeUp or deduct the amount paid from any sums due SizeUp under this Agreement. 13.5 Submission of Insurance Policies. Client reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 6 2023.12.06-11:45AM 017005.7000\2564684.1 14. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this__25th_________ day of ___November_________________, 2024____. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of CaliforniaSIZEUP, INC., a corporation of the State of California By:By: (sign here)Matt Sanford Economic Development Director Anatalio Ubalde, CEO (print name/title) Attest: By:SHERRY FREISINGER, City Clerk (sign here)By: Mario Ubalde, Director of Customer Success Deputy City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney BY: _____________________________ Deputy / Assistant City Attorney      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 7 2023.12.06-11:45AM 017005.7000\2564684.1 EXHIBIT A 1. Fees Initial Term: 1 year SizeUp Software As A Service Subscriptions Individual Subscriptions D SizeUp Local Business Intelligence (LBI) with Premium Data D SizeUp Shop Local D SizeUp Small Business Advisor with Premium Data D SizeUp PULSE with Premium Data Annual Fee: $ 9,488 (nine thousand four hundred eighty-eight dollars and no cents) One-time Setup Fee: $ 3,000 (three thousand dollars and no cents) Total: $12,488 2. Services (Software As A Service) SizeUp Local Business Intelligence (LBI) The Services shall be the provision of SizeUp Local Business Intelligence software functionality (or a product with identical functionality even if marketed under a different product name); references to Services below shall refer to SizeUp Local Business Intelligence or SizeUp LBI as provided to end users) on an online basis via the Internet. SizeUp LBI will be hosted on servers with an Internet service provider or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other than providing documentation on installing the Widget Software by Client. The functionality of the Services will include the following features: •Industry Benchmarking -Website users of the Services as provided through Licensee’s Website will be able to enter certain data about their business to receive industry benchmarking of their business to other businesses in the same or similar industry. The information will be presented through graphs, tables, and/or maps at varying geographic levels. •Market mapping – Website users of the Services as provided through Licensee’s Website will be able to view companies within the same/similar industry on a map. Users will also be able to select businesses in industries they sell to or buy from and these will also be displayed on the map. This tool helps enable businesses to spatially see the distribution of potential business competitors, customers, and suppliers. •Locations to advertise – Website users of the Services as provided through Licensee’s Website will be able to enter their industry and city to see geographic locations to advertise based on a variety of measurements and filters. •Demographic analysis –Website users of the Services will be able to access demographic reports and analysis in the Project Geography including demographic, consumer expenditures, and labor force. •Limited Industries and Geographies. The parties agree that provision of the Services through Licensee’s Website will limit users to only being able to select from pre-defined industries and geographies available through the Services. If SizeUp does not include data for a unique industry,      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 8 2023.12.06-11:45AM 017005.7000\2564684.1 location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these situations. Product evolution. The parties agree that the Services may change over time including the addition or subtraction of features. Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute acceptance of the tool as delivered. “Web site users” refers to end users accessing Client’s website who have the necessary and adequate hardware, software and Internet connection services to access and use most commercial Internet sites. Client may schedule additional consulting services as needed. Small Business Advisor The Services shall be the provision of SizeUp Small Business Advisor software functionality (or a product with identical functionality even if marketed under a different product name); references to Services below shall refer to SizeUp Small Business Advisor or SizeUp SBAdvisor as provided to end users) on an online basis via the Internet. SizeUp SBAdvisor will be hosted on servers with an Internet service provider or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other than providing documentation on installing the Widget Software by Client. The functionality of the Services will include the following features: •Plan Your Business -Website users of the Services as provided through Licensee’s Website will be able to click to access webpages with content related to planning to open a business. This content may include text, data, and/or other media content. •Start Your Business – Website users of the Services as provided through Licensee’s Website will be able to click to access webpages with content related to starting a business. This content may include text, data, and/or other media content. •Manager Your Business – Website users of the Services as provided through Licensee’s Website will be able to click to access webpages with content related to planning to managing a business. This content may include text, data, and/or other media content. •Grow Your Business – Website users of the Services as provided through Licensee’s Website will be able to click to access webpages with content related to planning to growing a business. This content may include text, data, and/or other media content. •Limited Industries and Geographies. The parties agree that provision of the Services through Licensee’s Website will limit users to only being able to select from pre-defined industries and geographies available through the Services. If SizeUp does not include data for a unique industry, location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these situations. Product evolution. The parties agree that the Services may change over time including the addition or subtraction of features. Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute acceptance of the tool as delivered. “Web site users” refers to end users accessing Client’s website who have the necessary and adequate hardware, software and Internet connection services to access and use most commercial Internet sites.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 9 2023.12.06-11:45AM 017005.7000\2564684.1 Client may schedule additional consulting services as needed. Shop Local The Services shall be the provision of SizeUp Shop Local software functionality (or a product with identical functionality even if marketed under a different product name); references to Services below shall refer to SizeUp Shop Local as provided to end users on an online basis via the Internet. SizeUp Shop Local will be hosted on servers with an Internet service provider or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other than providing documentation on installing the Widget Software by Client. The functionality of the Services will include the following features: •Search businesses by industry -Website users of the Services as provided through Licensee’s Website will be able to search for businesses by industry. The results of the search will be displayed in a list format and shown geographically on a map. •Search businesses by name -Website users of the Services as provided through Licensee’s Website will be able to search for businesses by name after performing a search of businesses by industry. The results of the search will be displayed in a list format and shown geographically on a map. •Option to restrict search results to locally-owned companies - Client will have the option to show only businesses results for which the headquarter location is within the client Project Geography. •Limited Industries and Geographies. The parties agree that provision of the Services through Licensee’s Website will limit users to only being able to select from pre-defined industries and geographies available through the Services. If SizeUp does not include data for a unique industry, location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these situations. Product evolution. The parties agree that the Services may change over time including the addition or subtraction of features. Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute acceptance of the tool as delivered. “Web site users” refers to end users accessing Client’s website who have the necessary and adequate hardware, software and Internet connection services to access and use most commercial Internet sites. Client may schedule additional consulting services as needed. SizeUp PULSE The Services shall be the provision of SizeUp PULSE software functionality (or a product with identical functionality even if marketed under a different product name); references to Services below shall refer to SizeUp PULSE as provided to end users on an online basis via the Internet. SizeUp PULSE will be hosted on servers with an Internet service provider or hosting facility that SizeUp owns or uses. SizeUp provides no client or customer service support, other than providing documentation on installing the Widget Software by Client. The functionality of the Services will include the following features: •Industry Analysis -Website users of the Services as provided through Licensee’s Website will be able to view industry data by geography. The information will be presented through tables, graphs, and/or maps. •Industry mapping – Website users of the Services as provided through Licensee’s Website will be able to view companies by industry on a map.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 10 2023.12.06-11:45AM 017005.7000\2564684.1 •Limited Industries and Geographies. The parties agree that provision of the Services through Licensee’s Website will limit users to only being able to select from pre-defined industries and geographies available through the Services. If SizeUp does not include data for a unique industry, location, or combination of location and industry, SizeUp is not obligated to provide reports in any of these situations. Product evolution. The parties agree that the Services may change over time including the addition or subtraction of features. Review and acceptance period. The client shall have fourteen (14) days upon receipt of their client code to evaluate their tool. Public use of the tool or expiration of the fourteen (14) days will constitute acceptance of the tool as delivered. “Web site users” refers to end users accessing Client’s website who have the necessary and adequate hardware, software and Internet connection services to access and use most commercial Internet sites. SizeUp PULSE use by Client is contingent upon Client’s implementation of the other SizeUp products on the Client’s website as described in the implementation document and the public launch of these products. Client may schedule additional consulting services as needed. 3. Implementation Meetings and Trainings SizeUp staff and Client will have the following meetings related to implementation of SizeUp LBI and SizeUp Small Business Advisor Services: භ Kickoff meeting (1 meeting, 1 hour, with SizeUp and Client) –This meeting starts the process of implementing Services. Topics include, but are not limited to Introduction of team members, review of implementation and marketing materials, discussion of timelines and scheduling of follow-up meetings, review and walkthrough of Client’s Application, discussion of success criteria, and any additional questions and answers. භ Training (1 meeting, 1 hour, with SizeUp and Client) –This meeting is designed for SizeUp to train Client on the use of the SizeUp Services. In some cases, the Kickoff and Training meetings are combined into one meeting. This meeting will include a demonstration and training of SizeUp on Client’s web properties or hosted by SizeUp, followed by a Q&A session. භ Public Webinar (Optional) - Launch of the website to local businesses (1 meeting, 1 hour) –This meeting is designed for SizeUp and Client to host a webinar to introduce and train local businesses about the use of SizeUp Services. This meeting will follow the following format pre-webinar mic & audio check, introductions, context setting, demo, Q&A, and additional demonstration scenarios as time permits, followed by a wrap-up meeting and media availability. භ Implementation Review Meeting (1 meeting, 30 minutes, with SizeUp and Client) –This meeting is designed to review the implementation and public launch of Services. Topics include, but are not limited to, review of delivery by SizeUp team, review of implementation process, finalization of success criteria for quarterly reviews. An anonymous survey will be sent to the Client’s team post-meeting for additional feedback. Implementation Services must be utilized within ninety (90) days of delivery of Services. After ninety (90) days, Implementation Services may be contracted as described in Exhibit A, Section 5, “Additional Consulting Services”.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 11 2023.12.06-11:45AM 017005.7000\2564684.1 4. Project Geography The geographic scope of the Services provided to Client will cover the geographic boundaries of the City of Carlsbad, which is an area with a population of no more than 150,000 people. 5. Additional Consulting Services Except for Services identified above in this Exhibit A, any additional services requested, travel and time (“Additional Consulting Services”) will be charged at a consulting fee rate of $175 per hour for staff, $295 per hour for senior staff, or $425 per hour for Principals, plus expenses for calendar year 2024. A four (4) hour minimum is required for consulting services. Time will be billed in hourly increments. Unused time shall expire one-hundred-eighty days after approval of additional consulting services. Client shall make any request for Additional Consulting Services in writing and the parties shall agree to such additional services in writing through an amendment to the Agreement prior to performance of the Additional Consulting Services. The hourly rate for service is subject to change, in which case client shall be notified and approve of change before work is performed by SizeUp.      Docusign Envelope ID: F00CDD14-EEE2-4F89-BE3F-B98483D63EE0 CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 11/11/2024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATIONIS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER SPECIALTY PROGRAM GROUP LLC/PHS 46505301 The Hartford Business Service Center 3600 Wiseman Blvd San Antonio, TX 78251 CONTACT NAME: PHONE (A/C, No, Ext): (866) 467-8730 FAX (A/C, No): (888) 443-6112 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURED SIZEUP, INC 9600 GREAT HILLS TRL STE 150W AUSTIN TX 78759 INSURER A : Hartford Underwriters Insurance Company 30104 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/Y YYY)LIMITS A COMMERCIAL GENERAL LIABILITY 46 SBA AY30UA 12/20/2024 12/20/2025 EACH OCCURRENCE $2,000,000 CLAIMS-MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence)$1,000,000 X General Liability MED EXP (Any one person)$10,000 PERSONAL & ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $4,000,000 X POLICY PRO- JECT LOC PRODUCTS - COMP/OP AGG $4,000,000 OTHER: A AUTOMOBILE LIABILITY 46 SBA AY30UA 12/20/2024 12/20/2025 COMBINED SINGLE LIMIT (Ea accident)$2,000,000 ANY AUTO BODILY INJURY (Per person) ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) X HIRED AUTOS X NON-OWNED AUTOS PROPERTY DAMAGE (Per accident) A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS- MADE 46 SBA AY30UA 12/20/2024 12/20/2025 EACH OCCURRENCE $1,000,000 AGGREGATE $1,000,000 DED RETENTION $ 10,000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/ A PER STATUTE OTH- ER Y/N E.L. EACH ACCIDENT E.L. DISEASE -EA EMPLOYEE E.L. DISEASE - POLICY LIMIT DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) The Business Liability Coverage Part includes a Blanket Additional Insured By Contract Endorsement, Form SL 30 32. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03)The ACORD name and logo are registered marks of ACORD _.........--.., A, C>Rd I -~ □ - ~ □ □ ~ ~ - L--1--- L--1--- -7 I I I I l [