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HomeMy WebLinkAboutGeofeedia Inc; 2014-11-20;AGREEMENT FOR A SOCIAL MEDIA MONITORING, ANALYSIS AND ENGAGEMENT PLATFORM GEOFEEDIAINC. THIS AGREEMENT is made and entered into as of the _ day of MoKJCrvKhc^T . 20/^. by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and GEOFEEDIA, INC. a Delaware corporation ("Contractor"). RECITALS City requires the professional services of a "SOCIAL MEDIA MONITORING, ANALYSIS AND ENGAGEMENT PLATFORM" that is experienced in aggregating public social media data and monitoring public social media data for user defined key words as well as identified geographic locations. 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 hereto and incorporated herein. The online service will be subject to the online terms of Service defined in Exhibit "B", attached hereto and incorporated herein. Ifthe event that there is a conflict with any term or condition contained within Exhibit B and this Agreement, the terms of this Agreement and Exhibit A will prevail over Exhibit B. 2. TERM This Agreement will be effective for a period of one (1) year from the date first above written. 3. COMPENSATION The total annual fee payable for the Services to be performed shall not exceed seven thousand dollars ($7,000.00). 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. City Attomey Approved Version 1/30/13 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. 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 rating in the Best's Key Rating guide of at least A-:VII OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide ofat least "A:X", in an amount of not less than one million dollars ($1,000,000) each, unless othenwise 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. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City's execution of this Agreement. 7. 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 four categories. 8. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment-. 9. 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. 10. 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. 11. 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. 12. 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. City Attomey Approved Version 1/30/13 13. 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. The City Manager may amend the Agreement to extend it for one additional one year periods in an amount not to exceed seven thousand dollars ($7000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance. City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 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. CONTRACTOR By: (sign here) (print name/title) By: (print name/titl^f CITY OF CARLSBAD, a municipal corporation of the State of California Gity Monagor or Mayor or Director Gary MOrrison ATTEST: 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: City Attorney Approved Version 1/30/13 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. BRKS/ERjCi^ Attorney ^ "Assistant City Attorney City Attorney Approved Version 1/30/13 EXHIBIT "A" SCOPE OF SERVICES Real-time search • Search seven social media (Twitter, Facebook, Instagram, YouTube, Flickr, Pleasa and Viddy) sources by location and view results in our map or collage views • Unlimited data from monitored Geofeeds Location Monitoring • Geofeedia will continuously monitor and record social media from user defined locations providing the ability to perform historical searches and analysis • Unlimited number of location recordings and ability to change locations at any time Streaming • View up to five concurrent live streams of social media per licensed user User Track • Connect undercover Twitter and Instagram accounts and follow specific users' posts Archive and Export • Unlimited monitored Geofeeds and archival in secure data warehouse • Export Geofeed data to CSV format Analytics • Filtering by timeframe, keyword and user; trend views by volume, media, keyword and user; detailed view of feed items and associated metadata; curate items in collections Alerts • Create unlimited email alert notifications triggered by specific keywords, phrases or users • Customize Alerts at any time User Licenses and Data Charges • Unlimited number of user licenses • Data includes up to 50,000 items per month. • Additional data packs available for purchase. A data pack is a defined number of "match items" or "hit items" on the listed social media sources in user defined geographic areas or to user defined keywords. Support and Training • Account set-up, initial location monitoring configuration, ongoing priority support • One kick-off training session plus one user-training session per month when requested Terms: • Initial Term: 12 months • Full payment due within 30 days of contract execution City Attomey Approved Version 1/30/13 Cost Breakdown: • Enterprise license, 1-year term • Unlimited user licenses • Unlimited recorded locations, up to 50,000 posts per month • Unlimited Alerts $8,500 Included Included Included • Strategic partner discount • Setup & training Total annual fee ($1,500) Included $7,000 City Attorney Approved Version 1/30/13 EXHIBIT "B" ONLINE TERMS OF SERVICE BY REGISTERING FOR AN ACCOUNT OR USING THE GEOFEEDIA SERVICE DEFINED BELOW IN ANY MANNER, YOU AGREE TO COMPLY WITH AND BE BOUND BY THESE ONLINE TERMS OF SERVICE. IF YOU ARE THE FIRST USER TO REGISTER FOR A GEOFEEDIA ACCOUNT ON BEHALF OF YOUR COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THESE ONLINE TERMS OF SERVICE WHICH, TOGETHER WITH ANY ONLINE OR WRITTEN ORDER FORM COMPLETED BY YOU OR YOUR COMPANY, FORM A BINDING LEGAL AGREEMENT BETWEEN GEOFEEDIA AND YOUR COMPANY WITH RESPECT TO THE ORDERED SERVICE. GEOFEEDIA RESERVES THE RIGHT TO MODIFY THESE ONLINE TERMS OF SERVICE AND ITS ONLINE PRIVACY POLICY FROM TIME TO TIME, WITH OR WITHOUT NOTICE TO YOU. THE DATE OF EACH REVISION WILL BE DISPLAYED ON THE VERSION POSTED ON THE GEOFEEDIA WEBSITE. ANY MODIFICATIONS WILL BE EFFECTIVE FROM THE DATE OF POSTING ON THE WEBSITE AND WILL APPLY TO ANY DISPUTES ARISING ON OR AFTER THE POSTING DATE. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO PERIODICALLY REVIEW THE VERSIONS OF THESE ONLINE TERMS OF SERVICE AND THE ONLINE PRIVACY POLICY POSTED ON GEOFEEDIA'S WEBSITE AND TO FAMILIARIZE YOURSELF WITH ANY MODIFICATIONS AND THAT YOUR CONTINUED USE OF THE SERVICE AFTER A MODIFIED VERSION HAS BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF THE MODIFIED VERSION. YOU MAY BE REQUIRED TO AGREE TO THE MODIFIED VERSIONS TO CONTINUE ACCESSING AND USING THE SERVICE. IF YOUR COMPANY HAS EXECUTED A WRITTEN SOFTWARE-AS-A-SERVICE AGREEMENT WITH GEOFEEDIA, THAT WRITTEN AGREEMENT WILL CONTROL IN THE EVENT OF ANY CONFLICT WITH THESE ONLINE TERMS OF SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, PLEASE QUIT THE ACCOUNT REGISTRATION PROCESS, IN WHICH CASE YOU WILL NOT BE PERMITTED TO ACCESS THE SERVICE. 1. Definitions. When used in these Online Terms of Service (ToS), the following capitalized terms shall have the meanings given them: 1.1 "Administrative User" means an Authorized User who is responsible for managing and administering User Accounts on behalf of his or her Company. 1.2 "Agreement" means the legal contract formed between Geofeedia and Customer as provided herein, consisting of these Online Terms of Service and the applicable Order Form(s). 1.3 "Applicable Laws" means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement. 1.4 "Authorized Purpose(s)" means those purposes set forth on the Geofeedia website, including the applicable User Materials, or in an Order Form describing the purposes for which the Service and associated Content may be used by a Customer and its Authorized Users. 1.5 "Authorized User" means any user of the Service who has been given a User ID by Geofeedia or the Administrative User for his or her Company. City Attomey Approved Version 1/30/13 1.6 "Confidential Information" means: (i) information of or relating to Customer or Geofeedia, or their respective affiliates, subsidiaries, customers, vendors, suppliers, service providers or licensors, that is competitively sensitive material not generally known to the public, including information that relates to past, present or future research and development, trade secrets, products and services, search parameters, pricing, marketing, financial matters, or business affairs (including policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats), systems, networks, computer equipment and software proprietary to or licensed by a party, including object or source code, custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein; and (ii) Personally Identifiable Information. 1.7 "Content" means any text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other copyrighted materials or materials subject to copyrights. 1.8 "Data" means all information, records, files, and data entered into, received, processed, or stored by or for Customer and its Authorized Users using the Service, including information comprising or concerning Content. 1.9 "Data Privacy and Security Laws" means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of Personally Identifiable Information and security breach notification relating to Personally Identifiable Information and any other laws in force in any jurisdiction (regulatory or otherwise) in which the Service is being utilized, including Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106- 102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the "Interagency Guidelines Establishing Standards for Safeguarding Customer Information" (Exhibit B to 12 CFR Part 364) (collectively referred to herein as "GLBA"). 1.10 "Geofeedia" means Geofeedia, Inc., a Delaware corporation. 1.11 "Geofeedia Content" means Content owned by or licensed to Geofeedia and made available to Authorized Users through the Service or on Geofeedia's website. 1.12 "Including" (and its derivative forms, whether or not capitalized) means including without limitation. 1.13 "Losses" means, in connection with a Claim that is subject to defense and indemnification by a party under this Agreement, all reasonable attorneys' fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including taxes, interest and penalties. 1.14 "Order Form" means either (i) a written order form prepared by Geofeedia and signed by an authorized representative of Customer, or (ii) an online order form presented by Geofeedia and completed by an Authorized User, which in either case sets forth the necessary information relating to the Services to be made available to a Customer and the associated fees payable to Geofeedia. 1.15 "Personally Identifiable Information" means all individually identifiable information provided to the Service by Customer or the Authorized Users or otherwise accessed by Customer or the Authorized Users through the Service that is subject to the protection of Data Privacy and Security Laws including: (i) any "Non-Public Personal Information" as such term is defined in GLBA, (ii) any individually identifiable information (including demographic information) relating to a person's health, to the health care provided to a person, or to payment for health care (collectively, "Personal Health Information"), (iii) information subject to Section 628 ofthe Fair Credit Reporting Act (15 U.S.C. § 1681 et seq) and any interpretive regulations issued by the Fair Trade Commission ("FCRA") and any regulations or guidelines adopted thereunder including, (iv) "Sensitive Customer Information" as that term is defined in the Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer City Attorney Approved Version 1/30/13 Notice, 70 Fed. Reg. 15736 (March 29, 2005) ("Guidelines"), (v) any "personal information" (or its equivalent) subject to the protection of applicable security breach laws and (vi) any "personal data" subject to applicable data protection laws. 1.16 "Service" means access and use, via the Internet, ofthe Geofeedia "software-as-a-service" described in the applicable Order Form or on Geofeedia's website. 1.17 "Services" means the Service, together with related Support Services and any other associated services provided by Geofeedia to Authorized Users, but "Services" does not include any Social Media Content. 1.18 "Social Media Content" means Content obtained by Trial Users or Authorized Users from the Internet through the Service, including links, posts and excerpts, and derivative works made from any of them. 1.19 "Subscription Term" means the time period for which a Customer has subscribed for the Service, as indicated on the Order Form. 1.20 "Support Services" has the meaning set forth in Section 4. 1.21 "Trial User" means an Authorized User to whom Geofeedia has granted the right to access and use the Service at no charge during a free evaluation trial period established by Geofeedia in its discretion. 1.22 "Update" means any improvement, enhancement, modification and/or changes to the Service offered or provided by Geofeedia. 1.23 "User ID" means a unique user identification assigned to an Authorized User. 1.24 "User Materials" means any online help files or written instructions regarding use of the Service. 2. The Service 2.1 Access. Subject to Customer's and your continuing compliance with this Agreement and payment of any applicable fees, Geofeedia grants to Customer and you a nonexclusive, personal and nontransferable right to access and use the Service and associated Content during the Subscription Term for the conduct of Customer's and its affiliates businesses. Customer's and your right to use the Service is limited to any parameters specified in the applicable Order Form, including the number of Authorized Users and Authorized Purposes. 2.2 Trial Accounts. At its sole discretion, Geofeedia may grant an individual the right to access and use the Service as a Trial User at no charge for a specified time period. At the expiration of the trial period, the Trial User's access to the Service will be terminated unless he or she chooses to pay the applicable subscription fee and become an Authorized User. Only a single trial account will be granted for a given email address. Geofeedia has no duty to provide trial accounts and has no liability to anyone for failing to offer a trial account or for terminating a Trial User's trial period, with or without notice. 2.3 Compliance. Customer's and your right to access and use of the Service is subject to your continuing compliance with all ofthe following: (a) the Agreement; (b) Geofeedia's online Privacy Policy available at https://geofeedia.com/home/privacy, (c) all third party service terms and conditions governing Content accessed through the Service, and (d) Applicable Laws, including Data Privacy and Security Laws. 2.4 Content The Service is a productivity tool designed to make it easier for you to search for, find, manage and use Social Media Content of interest that is accessible through the Service. Geofeedia does NOT claim any ownership rights in any Social Media Content accessed or made available through the Service. You acknowledge and agree that Geofeedia does not have responsibility to review Social Media City Attorney Approved Version 1/30/13 Content and that Geofeedia has no control rights over Social Media Content. As between Customer and Geofeedia, Customer is solely responsible for (i) obtaining any authorizations, consents, releases, and permissions that are necessary or desirable for Customer's or your use, re-use and/or dissemination of Social Media Content accessible through the Service, and (ii) ensuring that its (and its Authorized Users') use, re-use and dissemination of Social Media Content is in compliance with Applicable Laws and the terms of service of the website(s) from which the applicable Social Media Content is obtained or derived. As between Customer and Geofeedia, Customer is solely responsible for payment of any royalties, fees, and any other monies owing any person by reason of Social Media Content accessed or made available through the Service by Customer's Authorized Users. Some Content accessible through the Service may be indecent, offensive, inaccurate or otherwise objectionable or unlawful, and Geofeedia has no obligation to preview, verify, flag, modify, filter or remove any Content. Geofeedia may remove or disable access to any Content at its sole discretion, but is not responsible for any failures or delays in removing or disabling access to any Content, including Content that may be considered harmful, inaccurate, unlawful or otherwise objectionable. 2.5 RISK AND RESPONSIBILITY. AS BETWEEN CUSTOMER AND GEOFEEDIA, CUSTOMER IS SOLELY RESPONSIBLE FOR USE OF THE SERVICE AND ASSOCIATED CONTENT BY CUSTOMER AND ITS AUTHORIZED USERS, AND SUCH USE IS AT CUSTOMER'S SOLE RISK AND EXPENSE. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY SERVICES THAT IT PROVIDES TO OTHERS THAT ARE BASED ON OR INVOLVE THE USE OF THE SERVICE OR CONTENT, INCLUDING ENSURING THE ACCURACY, COMPLETENESS AND COMPLIANCE OF ANY SUCH SERVICES AND CONTENT, AND FOR ALL LIABILITIES AND RESPONSIBILITIES IN CONNECTION WITH THEIR USE. NEITHER CUSTOMER NOR ANY OTHER PERSON WILL HAVE ANY CLAIM OR CAUSE OF ACTION AGAINST GEOFEEDIA AS A RESULT OF OR IN CONNECTION WITH ANY SERVICES RENDERED OR WITHHELD BY CUSTOMER IN CONNECTION WITH ITS USE OF (OR INABILITY TO USE) THE SERVICE OR ANY CONTENT. 2.6 Restrictions. Except with Geofeedia's prior written consent, which Geofeedia may grant or withhold in its sole discretion, you shall not, in whole or in part, (a) copy or distribute copies ofthe Service or User Materials to any third party; (b) modify, adapt, translate, reverse engineer, make alterations to, decompile, disassemble or make derivative works of the Service or User Materials (except as otherwise expressly permitted by Applicable Law); (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Service to third parties; (d) use the Service or any User Materials to act as a service bureau or application service provider, or to permit access to the Service or any User Materials by any third party; (e) use the Service or associated Content for any illegal, unauthorized or injurious purpose; or (f) re-use, disseminate, copy, or otherwise use the Service or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party. 2.7 No Interference with Service Operations. You agree not to take any action that does or attempts to: (a) interfere with the proper working of the Service; (b) circumvent, disable, or interfere with security- related features of the Service or features that prevent or restrict use, access to, or copying of any Content or Data or enforce limitations on use of the Service, Content or Data; or (c) impose (or which Geofeedia determines in its sole discretion may impose) an unreasonable or disproportionately large load on the Service infrastructure. 2.8 Right to Suspend or Terminate the Service. Geofeedia reserves the right to immediately suspend or terminate Customer's or your ability to access and use the Service and/or to remove or restrict access to any Content from the Service if Geofeedia has reason to believe that Customer's or your use of the Service or associated Content is or is likely to become non-compliant with any applicable law, regulation or policy, or is or is likely to become the subject of a lawsuit or material dispute. 2.9 Future Access to Content Not Guaranteed. Customer and you are advised that, for most Content, the Service is designed to store links to where the Content is hosted on third-party websites that Geofeedia does not own or control, instead of storing the raw Content on Geofeedia's sen/ers. Geofeedia does not guarantee that any specific Content will remain available and accessible to Customer or you in City Attorney Approved Version 1/30/13 10 the future. Consequently, Geofeedia encourages Customer and its Authorized Users to maintain their own backups of any Content they may wish to access or use in the future, if permitted to do so by the Content's publisher or author. 2.10 Restriction of Access to Content. Although Geofeedia normally will only restrict access through the Service to Content that it deems inconsistent with these Online Terms of Service, Geofeedia reserves the right to restrict access through the Service to any Content, for any reason, with or without prior notice. 3. Authorized Users 3.1 Number. The number of Customer's Authorized Users who are granted access to the Service is as stated in the applicable Order Form. Unless otherwise specified on the Order Form, the Service may be accessed only by Authorized Users. 3.2 User IDs. Each Authorized User will have a unique User ID for his or her access to the Service. User IDs are for designated (i.e., named) Authorized Users only and cannot be shared, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Service. 3.3 Administrative User. At least one Authorized User of Customer will be designated to act as its Administrative User. The Administrative User will be responsible, on behalf of Customer, for registration of Authorized Users, User ID issuance and cancellation, and other administrative tasks related to Customer's use of the Service. 3.4 Additional User IDs. Unless othenwise specified on the applicable Order Form: (a) the Service may not be accessed by anyone other than Authorized Users; (b) User IDs may be purchased for additional Authorized Users (forwhich the subscription fees will be prorated during the remaining master Subscription Term); and (c) such additional Authorized User accounts will terminate on the expiration date of the master Subscription Term. 4. Other Services 4.1 Support Services. Geofeedia will provide during business hours, at no additional charge, reasonable support for the Service that does not require programming code changes ("Support Services"). Geofeedia may also offer enhanced support for an additional fee. 4.2 Scheduled Maintenance. Geofeedia reserves the right to take down applicable servers hosting the Service to conduct routine maintenance ("Scheduled Maintenance"). Geofeedia will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours in the U.S. Geofeedia will not be responsible for any damages or costs incurred by Customer due to unavailability of the Service during Scheduled Maintenance. 5. Certain Customer Responsibilities 5.1 Registration Information. Customer will provide to Geofeedia the current and accurate name, contact information and other information requested by Geofeedia to register each Authorized User to use the Service (collectively, the "Registration Information"). Geofeedia will not be liable for the accuracy, completeness or authenticity of Registration Information furnished by Customer or its Authorized Users and shall have no obligation or responsibility to audit, check or verify any Registration Information provided. 5.2 Account Security. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USER ID AND PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to use only the User ID assigned to you as a Trial User or Authorized User and to adopt and City Attomey Approved Version 1/30/13 11 maintain security precautions for your User ID to prevent its disclosure to and use by unauthorized persons. You agree to notify Geofeedia immediately of any unauthorized use of your account or User ID or any other breach of Geofeedia's security and to provide properiy documented evidence as requested by Geofeedia. Unless otherwise agreed to in writing by Geofeedia, you may not use anyone else's User ID at any time, nor may you allow anyone else to use your User ID at any time. You agree that Geofeedia will not be liable for any loss you may incur as a result of someone else using your Geofeedia User ID, password, or account, either with or without your knowledge or permission. You further agree that you or Customer will be liable for any and all losses incurred by Geofeedia, or another party, due to someone else using your User ID, password or Registration Information. 5.3 Service Activation and Ongoing Access. Customer and its Administrative User will cooperate and consult with Geofeedia in the set-up and activation of the Service for Customer. Customer is responsible for furnishing and bearing the costs of its own Internet access and all necessary communications equipment, software and other materials necessary for its Authorized Users to access and use the Service in a secure manner. Access methods and equipment used by Customer and its Authorized Users must conform to any published Geofeedia specifications and requirements. Customer is responsible for the security of its own computer systems and the security of its access to and connection with the Service. 5.4 Access and Use ofthe Service Outside the U.S. As between Customer and Geofeedia, Customer is solely responsible for compliance with Applicable Laws relevant to its Authorized Users accessing or using the Service while outside the U.S. 5.5 No Liability for Access by Minors. Geofeedia is not responsible for determining the age of Authorized Users and shall have no liability whatsoever should a minor use the Service, regardless of whether the minor's use of the Service would otherwise be prohibited due to the minor's age. 6. Fees and Payment 6.1 Fees. Fees for the initial Subscription Term are based on the billing plan and number of Authorized Users selected by Customer and are set forth in the Customer's Order Form. Customer agrees to pay for the Services in accordance with the Order Form, which specifies the payment terms. 6.2 Taxes. The stated fees do not include taxes. Customer is responsible for paying or reimbursing Geofeedia for all applicable taxes associated with this Agreement or the Services (other than taxes based on Geofeedia's gross receipts or net income). 6.3 Credit Card Information. If you provide credit card information to Geofeedia, you authorize Geofeedia to store the information and use it to charge the associated billing source according to the billing plan and number of Authorized Users selected for the Customer's subscription. For monthly billing pians, you authorize Geofeedia to charge the billing source each month without further authorization until the Customer's subscription is terminated. If the billing source your provided declines any charge, Geofeedia will notify you at the email address provided in your Registration Information. If you do not provide a valid billing source to Geofeedia within 3 business days ofthis notice, Geofeedia may terminate access to the Service by you and all other Authorized Users of the Customer for whom payment was not made. Even after access to the Service is terminated, you will still have access to the Geofeedia website, where you can access your account and restore access to the Service by providing a proper billing source. After your access to the Service is terminated, Geofeedia will keep your current Registration Information and Service settings on file for 90 days. After that time, Geofeedia reserves the right to remove your Registration Information and Service settings from its files with NO liability or notice to you, or to the Customer or any of its other Authorized Users. Credit Card Charge-Backs. Geofeedia has a zero-tolerance policy regarding credit card fraud and charge-backs. If you use a credit card to purchase a subscription to the Services and then start a charge- back process regarding such purchase, Geofeedia reserves the right to immediately terminate your City Attorney Approved Version 1/30/13 12 account, in which case, the credit card number will no longer be accepted in our systems. Should Geofeedia do this, you will never again be able to use that account and credit card with Geofeedia. • You and Geofeedia Responsibilities. 1. Registration Information. You will promptly provide to Geofeedia the name, contact information and other information requested by You to register each Authorized User (collectively, the "Registration Information") to use the Service. 2. User IDs. Each Authorized User will have a unique User ID for his or her access to the Service. You will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another's User ID. You will adopt and maintain such security precautions for User IDs to prevent their disclosure to and use by unauthorized persons and will promptly notify Geofeedia if the security or integrity of a User ID or password has been compromised, but always within one business day of such unauthorized disclosure. 3. Access and Compliance. You are (a) responsible for all obligations under this Agreement arising in connection with its use, including those of Authorized Users, of the Services, including but not limited to the Service; (b) You are liable for any act or omission by any of its users of the Services, which, if performed or omitted by You, would be a breach of this Agreement; (c) any such act or omission of any Authorized User will be deemed to be a breach of this Agreement by You; (d) You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Social Media Content; and (e) You will only access and use Services and Social Media Content in accordance with this Agreement, User Materials and applicable laws. 4. Computer System. You will: (a) cooperate and consult with Geofeedia in the set-up and activation of the Service for You, (b) provide and maintain, in good and working order at all times, its own Internet access and all necessary communications equipment, software and other materials necessary for Authorized Users to access and use the Service. You are responsible for the security of its own computer systems and the security of its access to and connection with the Service. 5. Authorization; Noninfringement; Delivery of Data. You are responsible for obtaining all authorizations, consents, releases, and permissions all necessary or desirable to use the Service and the re-use and/or or the dissemination ofthe Social Media Content. You and Your Authorized Users will not re-use, disseminate, copy, or otherwise use the Social Media Content or use the Services in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders. Geofeedia shall not be liable for the accuracy, completeness or authenticity of Data furnished by You or any other third party, and shall have no obligation or responsibility to audit, check or verify the Data. You shall transmit Data and receive reports by means of a secure network connection with Geofeedia. You shall be responsible for acquiring at its own expense all equipment needed for such transmission unless otherwise agreed by the parties. If equipment is not City Attorney Approved Version 1/30/13 13 provided by Geofeedia, then You equipment shall conform to Geofeedia specifications and requirements. You shall bear all costs associated with the method of transmission used, including without limitation line rentals, installation charges, required deposits, long- distance charges, and/or related hardware, software and internet connectivity costs. Any transmission method used must conform to Geofeedia specifications and requirements. Geofeedia shall not be liable or responsible for any loss or delay of Data, reports or any other information that pertains to You or the Services during any period of transit or electronic transmission to or from Geofeedia's facility or other agreed delivery location if through no fault of Geofeedia. Social Media Content. You agrees that Geofeedia has no ownership or control rights in or to Social Media Content. You represent, warrant and covenant that Your access and use of Social Media Content, (whether alone or in combination with other Social Media Content or data), shall be in compliance with applicable laws and the terms of service of the website from which the applicable Social Media Content is obtained or derived, including, without limitation any terms as may be set forth at www.geofeedia.com. Some Social Media Content may be indecent, offensive, inaccurate or otherwise objectionable or unlawful, and Geofeedia has no obligation to preview, verify, flag, modify, filter or remove any Social Media Content. Geofeedia may remove any Social Media Content at its sole discretion, but is not responsible for any failures or delays in removing any Social Media Content, including such content that may be harmful, inaccurate, unlawful or otherwise objectionable. YOUR USE OF SOCIAL MEDIA CONTENT IS ITS SOLE RISK AND GEOFEEDIA HAS NO RESPONSIBILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY USE OF SOCIAL MEDIA CONTENT BY YOU. No Interference with Service Operations. You will not take any action that: (a) interferes or attempts to interfere with the proper working of the Service or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features ofthe Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use ofthe Service or Data; or (c) imposes or may impose, in Geofeedia's sole discretion, an unreasonable or disproportionately large load on the Service infrastructure. Your Review and Responsibility. You will be solely responsible for any services that You provide to others involving the use ofthe Services or Data. Geofeedia makes no representations concerning the completeness, accuracy, or utility ofany Data in the Service or concerning the qualifications or competence of any Authorized User that may place Data in the Service. You shall be solely responsible for ensuring accuracy, completeness and compliance of any services, including services that include Data, it provides to any third party, and all liabilities and responsibilities in connection with such services, and Geofeedia shall not be responsible for the accuracy, completeness, or compliance thereof. Except as provided herein, neither You nor any other person will City Attomey Approved Version 1/30/13 14 have any claim or cause of action against Geofeedia as a result of any professional or other services rendered or withheld in connection with the use of the Data or Services. • Term and Termination. 1. Term of Agreement. You may terminate your account with Geofeedia at any time; however, unless Geofeedia is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from you ofthe breach, identifying specifically the nature of the breach, you are not entitled to any refunds. We may terminate your account without notice or refund to you if you violate this Agreement. If your account is terminated, Geofeedia reserves the right to remove your account information along with any software settings from our servers with NO liability or notice to you. 2. Effect of Termination. Geofeedia may destroy any of Your Data still residing on Geofeedia's systems after the termination of this Agreement without further notice to You, • Proprietary Rights. 1. Service. Geofeedia is and will remain the exclusive owner of all right, title and interest in and to the Service, Updates, User Materials, Geofeedia's Confidential Information, and all other Geofeedia work product and/or other materials provided or accessible to You in connection with this Agreement, including all intellectual property rights therein. 2. Feedback. To the extent that Geofeedia receives from You or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Service or any other products or services ("Feedback"), Geofeedia may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services. • Confidential Information; Privacy and Security. 1. Obligations. The parties acknowledge that the Services require disclosure by each party ("Disclosing Party") to the other party ("Receiving Party") of certain ofthe Disclosing Party's Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein: 1. maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care; 2. use the information solely to carry out the purposes for which the information was disclosed; and 3. limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party's suppliers or licensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the City Attomey Approved Version 1/30/13 15 Services; and (iii) the Receiving Party's external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality ofthe information. The Receiving Party shall remain responsible to the Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of the Receiving Party's confidentiality obligations hereunder. Notwithstanding the foregoing, (i) nothing herein shall be construed to authorize the disclosure of Personally Identifiable Information if such disclosure will violate any Data Privacy and Security Laws or any other federal or state law or regulation. Exceptions. Except to the extent disclosure would be in violation of any Data Privacy and Security Laws, the Receiving Party shall not be in violation of this Agreement for: 1. disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) was already known by the Receiving Party prior to the date of this Agreement (unless disclosed in connection with negotiations and discussions related to this Agreement or associated transactions), or (iv) was independently developed by the Receiving Party without reference to Confidential Information received from the Disclosing Party; or 2. disclosing Confidential Information of the Disclosing Party when required to do so by (i) the Receiving Party's federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required by any of the foregoing, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party's request and expense, cooperate with the Disclosing Party's efforts, if any, to prevent or limit the disclosure. No License; Return of Information. Nothing in this Section shall be construed as a grant or assignment ofany right or license in the Disclosing Party's Confidential Information. The Disclosing Party's Confidential Information shall at all times remain the property ofthe Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information ofthe Disclosing Party in the Receiving Party's possession or control, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed, subject to any provisions in this Agreement regarding return of Your Data or as otherwise agreed between the parties for the transfer of Your Data to a third party. Ownership. All Data (except for property of third parties) and Your Confidential Information are and shall remain the sole property of You. All Geofeedia Confidential City Attorney Approved Version 1/30/13 16 Information, specifications, manuals, tapes, programs, documentation, reports, report formats, systems and software (including without limitation, relating to the Services) and other tangible or intangible material of any nature whatsoever used, developed or produced by Geofeedia in connection with the Services and/or this Agreement (the "Geofeedia Materials"), and any modifications to the Geofeedia Materials, are and shall remain the sole property of Geofeedia. You hereby acknowledge and agrees that the Geofeedia Materials, including without limitation, its Confidential Information, constitute and contain valuable proprietary products and trade secrets of Geofeedia, embodying substantial creative efforts and confidential information, ideas, and expressions. The parties acknowledge that this Agreement in no way limits or restricts Geofeedia or any Geofeedia affiliates from developing or marketing on their own or for any third party software or services, as from time to time constituted (including, but not limited to, any modification, enhancement, interface, upgrade or change, and all software, source code, blueprints, diagrams, flow charts, specifications, functional descriptions or training materials relating thereto) without payment of any compensation, or delivery of any notice, to You. 5. Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party's Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all ofwhich remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order. Any requirements for a bond in connection with any such injunctive or other equitable relief are hereby waived by both parties. 6. Compliance with Laws. You agree to comply with the Data Privacy and Security Laws in connection with performing its obligations under and exercising its rights under this Agreement (including, without limitation, accessing and using the Service and the Social Media Content for the Authorized Purposes). Limitations; Disclaimer. 1. Service Limitations. The Service may be temporarily unavailable, without notice, from time to time due to required maintenance, improvements, telecommunications interruptions, or other disruptions. Geofeedia will not be responsible for any damages that You may suffer arising out of use, or inability to use, the Service. Geofeedia will not be liable for unauthorized access to or alteration, theft or destruction of Your data files, programs, procedures or information for any reason. It is hereby acknowledged that it is Your responsibility to validate for correctness all Data and to protect Your Data from loss by maintaining back-ups of all Data and routinely updating such back-ups. You hereby waive any damages occasioned by lost or corrupt Data or incorrect data files resulting from a programming error, operator error. Your equipment or software malfunction, or from the use of third-party software. 2. Disclaimer of Warranties. GEOFEEDIA MAKES NO WARRANTIES RELATED TO THE SERVICES PROVIDED BY GEOFEEDIA HEREUNDER, AND HEREBY City Attomey Approved Version 1/30/13 17 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES. GEOFEEDIA DOES NOT WARRANT THAT THE SERVICES MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR FREE. 3. Limitations of Liability. IN NO EVENT WILL GEOFEEDIA (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES PROVIDED BY GEOFEEDIA HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR DATA, EVEN IF GEOFEEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE TOTAL LIABILITY, IF ANY, OF GEOFEEDIA (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS GEOFEEDIAS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER (COLLECTIVELY, "CLAIMS"), SHALL BE LIMITED TO THE LESSER OF: (A) YOUR DIRECT DAMAGES, ACTUALLY INCURRED, OR (B) THE TOTAL FEES PAID BY YOU TO GEOFEEDIA IN THE MOST RECENT SIX (6) MONTH PERIOD. NOTWITHSTANDING THE FOREGOING, GEOFEEDIA'S SOLE OBLIGATION IN THE EVENT OF AN ERROR BY GEOFEEDIA IN THE PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO REPROCESSING APPLICABLE DATA OR REPERFORMING THE SERVICES. GEOFEEDIA (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS GEOFEEDIAS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY CLAIM OR DEMAND: (A) RESULTING DIRECTLY OR INDIRECTLY FROM YOUR INTERNAL OPERATIONS, EQUIPMENT, SYSTEMS OR SOFTWARE OWNED OR LICENSED BY COMPANY; OR (B) BY THIRD PARTIES, EVEN IF GEOFEEDIA WAS ADVISED OF City Attomey Approved Version 1/30/13 18 THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN. • Indemnification. 1. Indemnification of Geofeedia by You. You agree to defend, indemnify and hold harmless Geofeedia, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney's fees, that may, at any time, arise out of or relate to Your authorized, unauthorized, lawful or unlawful use ofthe Services, including but not limited to Your breach of this Agreement, Your inability to access the Services, Social Media Content, and Your reliance on any errors or omissions on the Services, violation of applicable laws (including, without limitation. Data Privacy and Security Laws) and violation of any third party rights. • General. 1. Assignment, Successors. No right or license under this Agreement may be assigned or transferred by You, nor may any duty be delegated by You without Geofeedia's prior written consent. Any assignment, transfer or delegation in contradiction ofthis provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of You and Geofeedia. 2. Subcontracting. Geofeedia may freely subcontract its duties and obligations under this Agreement. In the event that Geofeedia subcontracts any of its duties and obligations, Geofeedia agrees that: (i) the third party shall execute a confidentiality agreement consistent with the terms of this Agreement and (ii) any such permitted subcontracting shall not release Geofeedia from any of its obligations under this Agreement. 3. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors. 4. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of California, excluding its principles of conflicts of laws. 5. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Geofeedia is 1964 Isla De Palma Circle, Naples, FL 34119; billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of City Attomey Approved Version 1/30/13 19 overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section. 6. Independent Contractor. Geofeedia is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship of the You and Geofeedia shall be deemed to constitute a partnership, joint venture, or any other relationship between the You and Geofeedia except as is limited by the terms of this Agreement. 7. Entire Agreement; Amendments. This Agreement, together with the exhibits hereto, constitutes the entire agreement between Geofeedia and You with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. This Agreement, including the exhibits hereto, may be amended only by an instrument in writing executed by the parties or their permitted assignees. 8. Construction of Agreement; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect. 9. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions ofthis Agreement will remain in full force and effect. 10. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement. City Attomey Approved Version 1/30/13 20