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HomeMy WebLinkAboutDevelopment Counsellors International LLC; 2020-01-03;AGREEMENT FOR ONGOING WEBSITE MAINTENANCE AND HOSTING SERVICES DEVELOPMENT COUNSELLORS INTERNATIONAL (DCI), LTD. AGREEMENT is made and entered into as of the ~cJL day of ----=:::o<..:c:ld...loXJr.::~~~-• 20Jti_, by and between the CITY OF CARLSBAD, a municipal corporation, (" "), and DEVELOPMENT COUNSELLORS INTERNATIONAL, a New York S- Corporation, ("Contractor''). RECITALS City requires the professional services of an internet hosting service that is experienced in configuration, maintenance and security of website hosting. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Exhibit "A", attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. TERM This Agreement will be effective for a period of three (3) years from the date first above written. 3. COMPENSATION The total fee payable for the Services to be performed will be no more than nine thousand dollars ($9,000) annually. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit "A." 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, 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 Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. City Attorney Approved Version 6/12/18 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current Best's Key Rating of not less than "A-:VI I"; 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, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims- made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City's execution of this Agreement. 7. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Joseph Stewart Name Susan Brake Title Management Analyst Title Vice President, Digital Community & Economic Department Development Address 2420 17th St., Suite 200 City of Carlsbad Denver, CO 80202 Address 1635 Faraday Ave. Phone No. 303-455-9601 Carlsbad, CA Email Susan.brake@aboutdci.com Phone No. 760-602-4620 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 8. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD No~ 9. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. City Attorney Approved Version 6/12/18 2 10. TERMINATION City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 11. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 12. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 13. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 14. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. City Attorney Approved Version 6/12/18 3 15. 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. CONTRACTOR, Development Counsellors International, a New York S- Corporation Carrie Nepo, CFO/Partner (print name/title) (sign here) Julie Curtin, President (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California Director, Information Technology ATTEST: ~~ L, <Jr~ pc-- BARBARA ENGLESON City Clerk 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. Chairman, President, or Vice-President Group B. Secretary, Assistant Secretary, 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: CELIA A. BREWER, City Attorney By ~aky i3:* City Attorney Approved Version 6/12/18 4 EXHIBIT "A" SCOPE OF SERVICES Hosting Contractor agrees to provide City with website hosting services, consisting of website server space, e-mail capability, internet access, domain name registration, and such additional services, as may be provided by Contractor from time to time. Please see Attachment "A" to Exhibit "A" for the dedicated server's Terms of Service and Attachment "B" to Exhibit "A" for the service level agreement. These will be managed by Contractor, however, the contractor wanted City to be aware of the exact agreements required. Website Shared-Dedicated Server Hosting $120/month Billed annually Benefits • Google Cloud Computing enabled • Global data centers for international traffic • Dynamic threat detection & blocking • Best in class disaster recovery • Data center redundancy, highest availability • Clustered configurations in a dedicated environment • 24/7 chat support via WPE partners • Dev, stage, production environments • PHP 7.3, HTTP/2 ready • Global CDN enabled for enhanced SEO and increased speed • Automated and Imported SSL certificates • SSH Gateway • Dedicated dev environments • Highest network availability • Server is only composed of DCI clients in a highly security- hygenic environment Liability; No Warranty; Limitation of Damages City expressly agrees that use of Services provided by Contractor is at City's sole risk. Contractor guarantees 99 percent uptime for its Web servers. If uptime for City's Web server falls below 99 percent during any given month (or specify other payment period), Contractor will credit City a percentage-commiserate monthly credit as associated to server downtime. Any such credit shall be applied to future invoices. This credit shall be City's sole and exclusive compensation for any downtime or other unavailability of Contractor's services under this Agreement. Contractor shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. Contractor, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, City Attorney Approved Version 6/12/18 5 reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement. Contractor, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Contractor's records, programs, or services. Contractor will exercise no control over the content of the information passing through Contractor's network except those controls expressly provided herein. Contractor makes no warranties or representations of any kind, express or implied, for the services it is providing. Contractor also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by City, including loss of data resulting from delays or non-deliveries. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to City. City agrees that all right, title, and interest in any product or service provided to City belongs to Contractor. These products and services are only for City's use in connection with Services provided to City as outlined in this Agreement. City expressly warrants to the Contractor that City has the right to use any patented, copyrighted, or trademarked material which City uses, posts, or otherwise transfers to Contractor servers. Hardware, Equipment, and Software City is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Contractor servers. Contractor makes no representations, warranties, or assurances that City's equipment will be compatible with Contractor Services. Age City expressly represents and warrants that City and any person to whom City grants access to City's Contractor account are at least 18 years of age. Notice City agrees to keep Contractor informed of all current contact information for City's account. Changes in City's account information may be reported to Contractor by e-mail at or on Contractor's website. City Attorney Approved Version 6/12/18 6 Maintenance Contractor will provide yearly website maintenance for the www.carlsbadlifeinaction.com talent attraction site. City will supply the Contractor team access to unfettered contend (brand guidelines, text, images, logins, etc.) needed to complete projects in a timely manner. Ian Richer will be the lead creative advisor and manager throughout the duration of the project. Contractor will give written notice to City should project managers change. Contractor agrees to provide the following services. Website Passive Maintenance $630/month Billed annually Benefits • All plugins updated every month • Ongoing monitoring by devs and QC team for site performance • Real-time dev team administration alerts as to site interruption • WordPress core updated automatically for security updates • Word Press major versions updated monthly . • Installation and monitoring of WordPress firewall • Monitoring and testing of server settings and security monthly • Website files, plugins and settings regularly regression tested to be sure that updates have not made an impact on functionality • Onsite backups for an easy rollback on a daily basis • Database backups daily • Offsite backups via Dropbox and AWS • Externally alert monitoring for both outages and errors (can be linked to City acct) • External security scan on a monthly basis (WPScan Linux CLI) • Ongoing report as to what updates were made, actual uptime, any issues encountered etc • Any maintenance work conducted on the www.carlsbadlifeinaction.com website will be done in accordance with the Americans with Disabilities Act (ADA) and consistent with City of Carlsbad ADA policies Maintenance Understanding • DCI will have responsibility over the websites being online at all times • DCI will know before the City if there are any major issues • DCI ensures that backups are in place if something does go wrong • DCI will always the first port of call if an issue occurs • Security patches are applied promptly before a hack • The updated www.carlsbadlifeinaction.com website will be built upon the latest stable version of Wordpress (Version 4.9), offering best-in-class security, content management, search engine optimization and SPAM protection. Contractor will supply City with four hours of developer access in order to train their staff in CMS updates. Additional training will be made available to the City team at a rate of $150/hour, should it be needed. City Attorney Approved Version 6/12/18 7 Services City is contracting Contractor for the purpose of website maintenance. Website maintenance does not include new website or template design or custom programming. These items would need to be quoted on an individual basis by the Contractor. Malware/Malicious Infiltration If City website/servers become corrupted due to malware, spam or malicious attacks due to poor security hygiene (ie installation of unapproved plugins, weak passwords, email phishing), City will be responsible for the cost in order to restore website to original state. Work will be billed at the agency rate of $150/hr. Copyrights & Trademarks The City unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Contractor for inclusion in web site are owned by the City, or that the City has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Contractor from any claim or suit arising from the use of such elements furnished by the City. Liability In the event that City or other agent acting on the behalf of the City accesses files and disrupts the layout or functionality of the web site, Contractor can work to get the web site back up and running at the agency hourly rate of $150/hr. Under no circumstances, including negligence, shall Contractor, or any other company involved in the creation, production or distribution of the web site, be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Contractor's services; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to Contractor's records, programs or services. Laws Affecting Electronic Commerce The City agrees that the City is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Contractor and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the City's use of Internet electronic commerce. Etiquette Contractor is a developer of ethical web sites. As such, Contractor will not design, promote, or attach links to any site that includes adult content, nudity, obscene language or that encourages or promotes intolerance or discrimination of or towards people or peoples of any race, color, sex, creed or religion. Nor will Contractor design, promote or attach links to any site that advocates, encourages or practices the exploitation of any group or groups in society, including, and in particular, children, the elderly or the disadvantaged. Confidentiality Contractor may, during the course of providing services hereunder or in relation to this contract have access to, and acquire knowledge regarding materials, data, systems, and other information of or with respect to City which may not be accessible or known to the general public. Any knowledge acquired by Contractor from such materials shall not be used, published or divulged by Contractor to any person, firm or outside source without the express written consent of City City Attorney Approved Version 6/12/18 8 FEES: City agrees to the following yearly payment structure: Website Shared Dedicated Server Hosting: $1,440/year Website Passive Maintenance: $7,560/year Total Annual Fee: $9,000/year 9 City Attorney Approved Version 6/12/18 ATTACHMENT "A" These are the terms and services are those that the Contractor has agreed to as part of Contractor's agreement with Word Press Engine. Contractor wanted City to be aware of them as we enter this partnership. 1. Agreement 1. By clicking through these terms, or signing the Order to which they are attached, you are entering into an agreement with WP Engine to provide Services to you. That agreement between us is comprised of these Terms of Service, the Order to which they are attached or by which they are referenced, the SLA, AUP, DPA, and Privacy Policy which are referenced herein, and any other terms, exhibits, schedules, or addenda which are referenced by any of the preceding (collectively the "Agreement} The Agreement sets fort.h the exclusive terms and conditions between the Part.ies and supersedes all previous proposals, agreements, negotiations, and other written or oral communications between the Part.ies with respect to the Services provided hereunder. 2. If there is a conflict between the terms of the Agreement, the terms shall govern according to the following order of precedence: 1) the Order, 2) these Terms of Service, and 3) any terms incorporated by reference by either of the above. The substantive terms contained in your purchase order, order confirmation, notice of receipt, vendor registration port.al, or any other transactional document, form, or notice provided by you shall be void and without effect, even where your customary business practices require a showing of assent to such terms by us such as by signature or reference in an invoice. 3. We may update these Terms of Service from time to time in our sole discretion; the current version may be found at https:llwpengine.comllegallterms-of-servicel In the event of any material change, we will provide you with written notice. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate the Agreement in accordance with the Termination section below. 2. Services 1. We will provide the Services in accordance with the terms of the Agreement and the SLA. You acknowledge that we may engage third part.ies to provide or enable elements of the Services, provided that we are responsible to you for the performance of such third part.ies as if we performed the Services ourselves. You shall use the Services solely for the intended purpose in accordance with the Agreement, including he AUP, and provide us with all information, assistance, and materials reasonably required for our ongoing provision of the Services. 2. We will provide support. to you through the standard means we make available to our customers (e.g. knowledge base, forums, chat, ticket). Authorized Users seeking support. must have a basic understanding of the systems and technology related to the Services. 3. The scope of Services provided under the Agreement may be amended by any reasonable means showing mutual agreement between the Part.ies including click- through terms, email, support. ticket, or your selections in the User Port.al. Any associated fees will be clearly and conspicuously provided to you before you agree to any such change. 4. From time to time, we may provide replacements for cert.a in components of the Services or cease support.ing them altogether. No such replacement or end of life shall constitute a breach of the Agreement. City Attorney Approved Version 6/12/18 10 5. If you request or utilize any Beta Services, such Beta Services shall be provided on an AS-IS basis with all faults. No SLA, indemnity, representation, or warranty shall apply to Beta Services. We reserve the right to terminate the Beta Services at any time and make no representation that Beta Services will be released into production. 3. Authorized Users 1. You may designate a number of Authorized Users in the User Portal for the purpose of receiving support and making changes to your account. You are responsible for managing your Authorized Users and keeping them up-to-date. You authorize us to provide all applicable support and account information to your Authorized Users and to make modifications to the Services at their direction. 2. You may only add, modify, or remove Authorized Users through the User Portal. We will not do so on your behalf, and we will only provide support, assistance, and information to your Authorized Users who can verify their identity through the User Portal. Notwithstanding the foregoing, if you pay for the Services with a credit or debit card, we may remove that card as a payment method at the request of any individual who is able to provide reasonably satisfactory evidence that he or she is the named individual on such credit or debit card. 3. You will require your Authorized Users to abide by the terms of the Agreement, and you acknowledge and agree that you are fully responsible for the actions and omissions of your Authorized Users and for all costs, overages, or other liabilities incurred through your account except to the sole extent that any such use or liability is the result of our breach of the Agreement. An Authorized User, within the scope of permissions granted to such user in the User Portal, may make changes to the Services, and you agree to pay any Fees associated with such changes. You shall promptly notify us in the event that you become aware of any violation of the terms of the Agreement or any unauthorized use of the accounts of you or your Authorized Users. 4. Fees; Invoicing 1. You agree to pay the Fees beginning on the Effective Date and according to the payment terms set out in the Order. If no payment terms are specified, Fees shall be due in full in advance, except for usage or overage fees which are invoiced monthly in arrears. If the Order sets any limit on your use of Services (such as number of visitors) and that limit is exceeded, you will be responsible for the applicable overages. You agree to pay any applicable taxes (excluding taxes on our income) which we are required to collect unless you provide us with a valid tax exemption certificate. If you elect to make any payment via wire or credit transfer, then you are responsible for any applicable transfer fees. Any applicable overages, taxes, or transfer fees will be added to the Fees. Fees applicable to any Renewal Term will be at our then-current rates, provided that we have notified you of any applicable increase prior to the date by which you may opt out of the renewal. Fees are payable in the currency specified in the Order and are not refundable except as expressly stated herein. 2. You agree to the issue and acceptance of invoices in electronic format. We will invoice you immediately upon execution of the Order and on each renewal date thereafter. Invoices will be sent to the billing contact you designate in the Order or the User Portal. If you elect to pay via credit or debit card, we will charge the provided credit or debit card immediately upon account activation and on each renewal date thereafter, up to one week prior to the due date. If you elect to pay by any other method, payments are due 30 days from your receipt of the applicable invoice. 3. It is your responsibility to maintain accurate and up-to-date billing details and ensure the Fees are paid by the due date. If you fail to maintain accurate and up-to-date billing details, your account may be suspended until such details are provided. If you are City Attorney Approved Version 6/12/18 11 overdue on any Fees, we may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend provision of the Services, and (iii) terminate the Agreement in accordance with Section 5(b) below. You will be responsible for any charges associated with our collection efforts related to unpaid Fees. 5. Term; Termination 1. Upon expiration of the Initial Term, this Agreement will renew for successive Renewal Terms, each equal to the immediately preceding term, unless one Party notifies the other in writing of its intent not to renew no later than 30 days prior to the expiration of the then-current term. 2. You may terminate the Agreement prior to the end of the Term: (i) if we materially breach the Agreement and fail to cure such breach within 10 days of your notice to us; (ii) if you provide us with at least 30 days notice; or (iii) for any other cause stated herein. We may terminate the Agreement prior to the end of the Term: (i) if you materially breach the Agreement and fail to cure such breach within 10 days of our notice to you; (ii) if we reasonably believe that your use of the Services endangers or negatively affects our network or systems, violates the law, or interferes with our ability to provide services to our other customers; (iii) if you abuse, harass, or threaten any of our employees; (iv) if we provide you with at least 30 days notice; or (v) for any other cause stated herein. 3. Upon termination, we will provide you with a prorated refund of any unused Fees paid annually in advance for Services beyond the date of termination (adjusted for any discounts that are rendered void due to such termination and any other amounts which you owe). 6. Proprietary Rights 1. Customer Content is and remains your exclusive property, and we claim no rights whatsoever in the Customer Content except to the extent explicitly granted herein. For the Term of the Agreement, you hereby grant to us, our affiliates, providers of Third- Party Services, and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub- licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Customer Content (in whole or in part) solely and strictly to the extent required to provide the Services to you under the terms of the Agreement. 2. We and our licensors own and shall continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. performance data), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant any other licenses, express or implied, to any of our intellectual property including software, services, or products. 3. We may solicit and you or your Authorized Users may provide feedback about the Services. If you or your Authorized Users provide feedback, you agree that such feedback is provided freely. Except to the limited extent such feedback contains any of your Confidential Information, we are free to use and disclose such feedback for any purpose without an accounting to you or any other person, and we shall own all right, title, and interest in and to such feedback along with any changes, modifications, or upgrades we make to our current products or services and any new products or services that we develop using the feedback you or your Authorized Users provide. 7. Confidentiality. Each Party agrees to preserve the confidential nature of the other Party's Confidential Information by retaining and using the Confidential Information in trust and confidence, City Attorney Approved Version 6/12/18 12 solely for its use as permitted and in connection with the Agreement, and by using the same degree of protection that it uses to protect its own similar confidential information, which in no event shall be less than reasonable care. Notwithstanding the foregoing, either Party may disclose the other Party's Confidential Information to the limited extent such disclosure is required by law, legal process, or court order, including any requirement under applicable data privacy regulations that a notice of data breach be given to a supervisory authority or regulatory agency. Information disclosed for these reasons will not cease to be Confidential Information. To the extent practicable, a Party will provide prompt notice of any such required disclosure and shall cooperate with all reasonable efforts by the disclosing Party to minimize or exclude the Confidential Information from such disclosure. Upon termination or expiration of the Agreement for any reason, any license granted herein to use the Confidential Information shall terminate immediately, and each Party will either return or destroy any Confidential Information in its possession which belongs to the other Party, or it shall continue to protect the Confidential Information in accordance with the Agreement for as long as it is retained as part of that Party's customary business practices. Notwithstanding any other terms to the contrary herein, each Party will have the right to seek an injunction in any court of competent jurisdiction to prevent a breach or threatened breach of this Section. 8. Security; Data Privacy 1. We will maintain commercially reasonable technical and operational measures designed to protect our internal networks from malicious activity and provide for the security and integrity thereof. You acknowledge that we are not responsible for any loss or harm suffered by you resulting from a security incident. You are responsible for determining whether the Services meet applicable regulatory standards and otherwise comply with your own security requirements. You agree to configure your use of the Services in such a way as to maintain the security of the Services and our network (e.g. by only uploading software that has been demonstrated to be secure, installing patches, and not sharing passwords). 2. Should we determine that our network has been accessed in an unauthorized manner, and that unauthorized access impacts your Services, we agree to notify you as soon as reasonably practicable after we have investigated the unauthorized access and fulfilled our legal obligations. Likewise, you agree to notify us should you identify unauthorized access to the Services. 3. We will adhere to the Privacy Policy. Where applicable under the data privacy laws of the European Union and its member states, we are the data controller for the personal data belonging to you and your Authorized Users which is provided or made available to us through the User Portal. For all other personal data collected by you from your employees, customers, or end users or otherwise stored, transferred, or processed by any part of the Services, we are the data processor. Where we are the data processor, we will use such personal data only as instructed by you or required by law, and not for any other purpose. In all cases, the Parties agree to comply with the terms and obligations of the DPA throughout the term of the Agreement. 9. Warranties. Each Party represents and warrants that (i) it has the power, authority, and legal right to enter into the Agreement and perform the obligations and grant the licenses set out herein; and (ii) it will comply with all laws and regulations applicable to its performance under the Agreement. 10. Indemnification. You agree to indemnify, defend, and hold harmless WP Engine; its affiliates, subsidiaries, and vendors; and their respective officers, directors, agents, and employees from and against any and all liabilities, obligations, losses, damages, penalties, fines, amounts in City Attorney Approved Version 6/12/18 13 interest, and other expenses (including reasonable attorney fees) in connection with a claim or demand brought by a third party related to your violation of the AUP. We reserve the right to control the defense of any indemnified matter under this Section and approve any proposed settlement. You will pay us the amounts due under this Section as they are incurred. 11. Limitations 1. Although we may perform regular backups of your site and Customer Content (as described in the Order), we do not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. We will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state. You agree to maintain a complete and accurate copy of any Customer Content in a location independent of the Services. 2. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WP ENGINE AND ITS LICENSORS SPECIF/CALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, AVAILABILITY, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PEFORMANCE, OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, THE SERVICES ARE PROVIDED AS-/S, AS AVAILABLE, AND WITH ALL FAULTS. 3. IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY REASON (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY) EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID OR OWED BY YOU TO US IN THE 3 MONTHS PRECEDING THE CLAIM. 4. IN NO EVENT SHALL WE OR OUR LICENSORS HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENT/AL, OR PUNITIVE DAMAGES, NOR ANY COVER OR LOST PROFITS, HOWEVER CAUSED, ARISING OUT OF OR IN ANYWAY CONNECTED WITH THE AGREEMENT WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5. THE SLA SETS OUT YOUR SOLE REMEDIES FOR DOWNTIME, UNAVAILABILITY, OR OTHER SLA FAILURES. 6. The limitations in this Section 11 do not apply to the extent prohibited by applicable law or to your payment obligations for Services provided. 12. General Provisions 1. Assignment. Neither Party may assign the Agreement, in whole or in part, without the other Party's prior written consent except in connection with a merger, reorganization, sale of assets or similar transaction. In case of the latter, the assigning Party will provide notice as soon as reasonably practicable and without undue delay. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns. 2. Force Majeure. We shall not be deemed to be in default of the Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from any City Attorney Approved Version 6/12/18 14 circumstances beyond our reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third-party network unavailability, and/or failure of telecommunication facilities. 3. Governing Law and Venue. The Agreement is governed by the laws of the State of Texas, without regard to its choice of law statutes. Subject to Section 12(d), any disputes must be brought in the state or federal courts located in Travis County, Texas. No claim may be brought as a class or collective action and you may not actively assert a claim arising out of the Agreement as a member of a class or collective action. The United Nations Convention on the International Sale of Goods shall not govern the Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LIT/GA TION IN ANYWAY RISING OUT OF, OR RELATED TO, THE AGREEMENT. 4. Arbitration. Both Parties agree that all disputes will be resolved by binding, individual arbitration under the American Arbitration Association's rules. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. WP Engine will pay all arbitration fees (excluding attorneys' fees) for claims less than $10,000. WP Engine will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. You may opt out of this agreement to arbitrate. If you do so, neither Party may require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing at the following address within 30 days of the date that you first became subject to this arbitration provision: WPEngine, Inc., ATTN: LEGAL -Arbitration Opt- Out, 504 Lavaca, Suite 1000, Austin, TX 78701. You must include your account name, contact address, and a clear statement that you wish to opt out of this arbitration agreement. If you choose to opt out, or if this Section is found to be unenforceable for any reason, disputes will be resolved as provided in the Agreement. This Section will be interpreted in accordance with the Federal Arbitration Act. 5. Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, 5 business days after being mailed to the designated address by first class mail. Notices to you shall be made to the address recorded in the User Portal or via electronic mail to an Authorized User. Notices to us should be delivered to: WP Engine, 504 Lavaca Street, Suite 1000, Austin, TX 78701, ATTN: Legal Department. 6. Publicity. The Parties may disclose that they have entered into a business relationship and may include the name and logo of the other Party in lists of their respective customers or vendors (as the case may be), subject to any provided usage guidelines with respect to a Party's trademarks and so long as neither Party mischaracterizes the nature of the actual relationship between them. Any other use of a Party's name, logo, or other trademarks or service marks shall require prior written consent. Specifically, and without limiting the generality of the foregoing, neither Party may disclose or advertise any other details of the Agreement or use the name, logo, or trademarks of the other Party in connection with a product or service based upon or similar to a product or service that Party offers. Neither Party may hold itself out as a reseller or a partner of the other, or any other similar designation, unless granted such license or authority under a separately executed agreement. 7. Severability. Any provision in the Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or City Attorney Approved Version 6/12/18 15 unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or the Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the Parties' intent. 8. Survival. Any provision of the Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement (including, without limitation, confidentiality, limitation of liability, and indemnification) survive termination or expiration and continue in full force and effect. 9. Third-Party Beneficiaries; Relationships. There are no third-party beneficiaries to the Agreement. Nothing contained in the Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties hereto. No Party is by virtue of the Agreement authorized as an agent, employee, or legal representative of any other Party. Neither Party has the authority to make any representations, claims, or warranties of any kind on behalf of the other Party, nor on behalf of that Party's affiliates, agents, subcontractors, licensors, or third-party suppliers. 10. Waiver. If one Party fails to exercise, or delays exercising, any right, remedy or power set out in the Agreement, this shall not operate as a waiver of that right, remedy or power, whether under the Agreement or at law or equity. 13. Definitions 1. "Agreement" has the meaning provided in Section 1(a). 2. "AUP" means the Acceptable Use Policy located at https:llwpenqine.comlaup as it may be updated by us from time to time. 3. "Authorized User'' means a user whom you have authorized to access and manage your account through the User Portal. 4. "Beta Services" means any services which are clearly and conspicuously designated by us as Beta Services. Beta Services may be in early stages of testing or development, are not recommended for production use, and are subject to additional disclaimers and limitations as described in the Agreement. 5. "Confidential Information" means information disclosed by one Party to the other, directly or indirectly, in writing, orally, or by inspection of tangible objects, that should be reasonably understood to be confidential by its particular identification or designation, the circumstances of its disclosure, or the nature of the information itself Confidential Information does not include information which, at such time: (i) is generally known or available to the public without breach of the Agreement by the receiving Party; (ii) is rightfully disclosed to the receiving Party without restriction as to further use or disclosure; or (iii) is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession. Confidential Information is and shall remain the property of the disclosing Party (or its licensors, as applicable), and no rights are granted to the Confidential Information other than those rights expressly granted in the Agreement. 6. "Customer," "you," or "your'' means the entity entering into this Agreement with WP Engine upon the actions taken by its authorized representative. 7. "Customer Content" means the text files, images, photos, videos, sounds, or other materials or works of authorship belonging to you or your end users that you cause to be stored within the Services, excluding Customer Data. 8. "Customer Data" means the information about you or your Authorized Users which is required by us in order to provide the Services to you. 9. "DPA" means the Data Privacy Addendum located at https:/lwpenqine.comlleqalldpa as it may be updated by us from time to time in order to comply with applicable laws or guidance. 10. "Effective Date" means the date your account is activated. City Attorney Approved Version 6/12/18 16 11. "Initial Term" means the term stated in the Order. 12. "Order" means the order form or online transaction which describes the Services and incorporates these Terms of Service. 13. "Party" means either Customer or WP Engine; "Parties" means both Customer and WP Engine. 14. "Privacy Policy" means the policy located at https:llwpengine.comllegallprivacy/ as it may be updated from time to time. 15. "Renewal Term" means any successive term after the Initial Term. 16. "Services" means the hosting, support, and other related services we provide to you as described in the Order. 17. "SLA" means the Service Level Agreement located at https:llwpengine.comlslal as it may be updated by us from time to time. 18. "Term" means the entirety of the Initial Term and all Renewal Terms. 19. "Third-Party Services" means certain third-party products or services which are not sold or licensed by us but which are made available for you, in your sole discretion, to enable or integrate with the Services (e.g. third-party themes and plugins available through the WordPress administrative portal). We maintain no control over and disclaim any and all liability for Third Party Services, even where we may have provided limited support or advice to you in relation to such services. Such support and advice are provided in good faith, AS-IS and AS-AVAILABLE, and solely for your convenience 20. "User Portal" means the web site located at https:llmy.wpengine.com which we make available to our customers for the purpose of managing their account and the Services. 21. "WP Engine," "we," or "our'' means WPEngine, Inc., a Delaware corporation located at 504 Lavaca St., Ste. 1000, Austin, Texas 78701. City Attorney Approved Version 6/12/18 17 ATTACHMENT "B" This Service Level Agreement is one that the Contractor has agreed to as part of The Contractor's agreement with Wordpress Engine. Contractor wanted City to be aware of them as we enter this partnership. This SLA amends the Agreement between WP Engine and Customer and addresses the uptime guarantees in relation to the Services we provide to you and your remedies for our failure to meet such guarantees. The remedies contained in this SLA are your sole and exclusive remedies for any issues addressed herein. We may update this SLA from time to time in our sole discretion; the current version may be found at https:llwpengine.comllegallsla/. 1. SERVICE AVAILABILITY WP Engine will make the Services available 99.95% of the time, excluding any Excused Downtime. In a given calendar month, we calculate "Service Availability" as follows: (total minutes Services are available) x 100 ' Service Availability = (total minutes in the month) -(Excused Downtime) 3. EXCUSED DOWNTIME "Excused Downtime" means the length of time the Services are unavailable due to: 1. Scheduled Maintenance; 2. Emergency Maintenance; 3. Beta Services; 4. Force Majeure events; and 5. the actions or omissions of you, your Authorized Users, or any third-party acting on your behalf or at your direction, including any unauthorized use of the Services, breach of the Agreement or Acceptable Use Policy, or any use or configuration of the Services that exceeds WP Engine's recommendations or advertised limits. "Scheduled Maintenance" includes any maintenance performed during the following windows or for which we provide reasonable notice or coordination with you in advance of the maintenance. Data Center location: Maintenance window: Americas 1 Op -4a Central Time Europe 4p -1 Op Central Time Asia-Pacific Ba -2p Central Time "Emergency Maintenance" means any maintenance performed outside the Scheduled Maintenance windows without advance notice where such maintenance is reasonably and urgently required to protect the integrity, availability, or security of any online systems. 4. SLA CREDITS You are entitled to a credit of 5% of the applicable monthly Fees for each full hour of downtime in excess of the Service Availability targets. (For example, you will receive a 5% City Attorney Approved Version 6/12/18 18 credit for between 1 and 60 minutes of downtime in excess of the Service Availability targets, a 10% credit for between 61 and 120 minutes, etc.) In order to receive a credit, you must contact Support within 30 days of the event giving rise to the credit. Credits are based on our monitoring, shall not exceed 100% of the applicable monthly Fees, may not be carried over or aggregated, are forfeited at the expiration or termination of the Agreement, and will not be paid or provided as a refund. 5. ENHANCED SLA A service or feature which is described as being subject to our "Enhanced SLA" benefits as follows: the Service Availability target is 99.99%, and you will receive a credit of 3% of the applicable monthly Fees for each half hour of downtime in excess of those targets. Except for these changes, all other terms of the SLA apply as normal. City Attorney Approved Version 6/12/18 19 I Client#· 36622 DEVCO1 ACORD™ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) 4/25/2019 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 SUBROGATION IS 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 ijfal~cT Nancy Volpe ISU/Szerlip & Company, Inc. FlJgNrio Extl: 973-912-5043 I rffc. Nol: 973-467-0725 288 Main Street it'ti:~ss: nvolpe@szerlip.com Millburn, NJ 07041-1031 INSURER(S) AFFORDING COVERAGE NAIC# 973 467-0400 INSURER A : The Hartford Insurance Company 19682 INSURED INSURER B : Beazley Insurance Company, Inc. 19445 Development Counsellor, lnt'I INSURER C : National Union Fire Insurance Co. 19445 215 Park Avenue S 10th Floor INSURER D: New York, NY 10003 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 TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR INSR WVD POLICY NUMBER (MM/DDIYYYY) I (MM/DDIYYYY) A X COMMERCIAL GENERAL LIABILITY 13SBATH2148 05/01/2019 05/01/2020 EACH OCCURRENCE $2 000 000 I CLAIMS-MADE [!] OCCUR ~~~b~H?E~~~J~~ence) $300.000 MED EXP (Any one person) $5 000 - PERSONAL & ADV INJURY $2,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 =7 nPRO-nLOC $4,000,000 POLICY ~ JECT PRODUCTS -COMP/OP AGG OTHER: $ C AUTOMOBILE LIABILITY BE025275832 05/01/2019 05/01/2020 COMBINED SINGLE LIMIT $1,000,000 /Ea accident\ ~ ANY AUTO BODILY INJURY (Per person) $ f---ALL OWNED -SCHEDULED BODILY INJURY (Per accident) $ ~ AUTOS -AUTOS X X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS /Per accident\ f---$ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ ~ EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I I RETENTION $ $ WORKERS COMPENSATION l~'ffrnTF I 10TH-AND EMPLOYERS' LIABILITY ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE□ E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes. describe under E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS below B Professional V228AC180201 ~4/02/2019 04/02/2020 $2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) City of Carlsbad Redevelopment Agency, its officials, employees and volunteers are named as an additional insured with respect to liability arising out of activities performed by or on behalf of the Named Insured (General Liability only). The full limits available to the named insured shall also be available and applicable to the City as an additional insured. (See Attached Descriptions) CERTIFICATE HOLDER The City of Carlsbad 1635 Faraday Ave San Diego, CA 92008 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 © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) 1 of 2 The ACORD name and logo are registered marks of ACORD #S277458/M277456 NAV POLICY NUMBER: 13 SBA TH2148 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON-ORGANIZATION LOC 001/BLDG 001 CITY OF LONG BEACH BOARD OF COMMISSIONERS 925 HARBOR PLAZA LONG BEACH, CA 90802 CITY OF CARLSBAD, ECONOMIC DEVELOPMENT DEPTARTMENT 1635 FARADAY AVE CARLSBAD, CA 92008 GOVERNMENT OF THE VIRGIN ISLANDS 21-22 KONGENS GADE ST. THOMAS, VI 00802 LOCATION: 215 PARK AVE SOUTH 10TH FL, NEW YORK, NY 10003 CITY OF KENOSHA 625 52ND STREET KENOSHA, WI 53140 CITY OF SUGAR LAND, OFFICE OF ECONOMIC DEVELOPMENT 2700 TOWN CENTER BLVD N SUGAR LAND, TX 77479 805 THIRD NEW YORK LLC MADISON THIRD BUILDING COMPANIES LLC MADISON THIRD BUILDING CORPORATION COHEN BROTHERS EQUITIES LTD COHEN CLEANING AND SERVICE COMPANY LLC 750 LEXINGTON AVE NEW YORK, NY 10022 Form IH 12 00 11 85 T SEQ. NO. 001 Printed in U.S.A. Page 001 Process Date: o 2 / o 8 / 19 Expiration Date: o 5 / o 1 / 2 o POLICY NUMBER: 13 SBA TH2148 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF SUBROGATION CITY OF LONG BEACH BOARD OF HARBOR COMMISSIONERS LONG BEACH, CA 90802 LOC 001/BLDG 001 CITY OF LONG BEACH BOARD OF COMMISSIONERS 925 HARBOR PLAZA LONG BEACH, CA 90802 CITY OF SUGAR LAND, OFFICE OF ECONOMIC DEVELOPMENT 2700 TOWN CENTER BLVD N SUGAR LAND, TX 77479 Form IH 12 00 11 85 T SEQ. NO. 002 Printed in U.S.A. Page 001 Process Date: 02/08/19 Expiration Date: 05/01/20