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HomeMy WebLinkAboutSiteimprove Inc; 2021-02-04; www.siteimprove.com # 91994 Page 1 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Software-as-a-Service Subscription Agreement This Software-as-a-Agreement corporation with a business address at 7807 Creekridge Circle, Minneapolis, MN 55439, and its Affiliates (defined below) Siteimprove City of Carlsbad Customer you your consists of the following: (A) this Software-as-a- This Agreement replaces the previous Agreement with Quote #4038. This offer is only valid if signed by you on or before January 15h, 2021. After that date, please contact Siteimprove to issue a new offer. Included Services Product Bundle: Government & Non-Profit Complete Included Services Quality Assurance Crawls website and identifies quality issues. 1,125 Pages Policy Allows Customer to set website parameters to ensure consistency in content. Accessibility Checks website against selected WCAG 2.1 accessibility standards and WAI-ARIA techniques. SEO Details technical and content-related issues affecting search engine rankings and traffic to the website. Standard Support Plan * The Limits consist of the following and their applicable definitions: Pages: A Page is an electronic document created with HTML and accessible with a browser. Response Check Points: Response Check Points are single URLs that are monitored for up-time and response time performance from a series of reliable servers across the globe. Yearly Page Views a single view by a website user of a page on a website that is being tracked by the Siteimprove Analytics tracking code. If a user clicks reload after reaching the page, it is counted as an additional Page View. If a user navigates to a different page and then returns to the original page, an additional Page View is recorded. PDFs: Portable Document Format (PDF) is a file format that has captured all the elements of a printed document as an electronic image that you can view, navigate, print, or forward to someone else. To be included in this subscription a PDF must be hosted on one of the covered websites. Access to the services Please allow up to five business days for setup to the Included Services to be completed. The Included Services can be accessed at http://my.siteimprove.com. At that location, you can administer the logins for your authorized users. The Included Services also include training and tech support pursuant to Exhibit C. www.siteimprove.com # 91994 Page 2 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Academy Plus Courses and learning tracks, a team leaderboard, administrative capabilities, and reporting. Academy Plus can be accessed through your dashboard at the URL stated above. Limitations The Included Services are subject to the following limitations: Your use of the Included Services is subject to the Limits. If you exceed the Limits, we will notify you that continued use in excess of the Limits may subject you to additional charges which will be documented in a mutually-agreed change order. Included Services may only be run on the website(s) listed in Exhibit A. Websites can be added to the Included Services, subject to the approval of Siteimprove. Additional URLs may subject you to additional charges, which will be documented in a mutually-agreed change order. You must be the owner of the approved website(s). You can only add websites approved websites cannot be replaced with different websites. Included Services may only be run on public websites that do not contain sensitive or personal information. Term Effective Date rce for a Initial Term Following the expiration of the Initial Term, this Agreement may be renewed for four (4) Renewal Term parties. Subscription Fees The annual subscription fee (excluding applicable taxes) for the Included Services is: $3,034.90 Fee Invoices & Payments All invoices are sent to the email address listed in the Customer Information section. If an email address is not listed, your invoice will be sent to the most current email address that Siteimprove has on file. You will be invoiced as follows: On December 21, 2020, you will be invoiced for the Fee and, if applicable, the Implementation Fee set forth in Exhibit D. If the parties agree to renew this Agreement, you will be invoiced for the Fee. All invoices must be paid pursuant to the terms set forth in Section 2 of the Terms and Conditions (Exhibit B). www.siteimprove.com # 91994 Page 3 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Customer Information (Required) You may be subject to sales tax (or equivalent). Sales tax is determined based on the below-entered service location. Sales tax is not included in the Fee. Service Address (Must be a physical address. The Service Address cannot be a PO Box) Name: Address: Email: Phone: Billing Address (only complete if different from Service Address) Name: Address: Email: Phone: www.siteimprove.com # 91994 Page 4 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Customer Information You may be subject to sales tax (or equivalent) unless you can provide proof of exemption. Are you exempt from sales tax? Yes, please attach exemption form. No. Yes, please provide Purchase Order Number: _______________________ No If a PO is required, will you be providing a new PO for each invoice? Yes No, the provided PO number can be used for the initial invoice and all subsequent invoices www.siteimprove.com # 91994 Page 5 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Signatures By signing below, each party acknowledges that it has carefully read and agrees to be bound by the terms of this Agreement. This Agreement will become effective on the Effective Date. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) City Manager or Mayor or Director (print name/title) ATTEST: By: (sign here) BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President 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: _____________________________ Assistant City Attorney www.siteimprove.com # 91994 Page 6 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Exhibit A: Website(s) The Included Services may be run on the following website(s): www.carlsbadca.gov/ Exhibit B: Terms and Conditions 1. DEFINITIONS a. Interpretation. Capitalized terms used in these Terms and Conditions will have the meanings ascribed to them in the Agreement or as defined below. Terms other than those defined below will be given their plain English meaning and terms of art having specialized meanings in the software industry will be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires. b. Affiliate irectly controlling or controlled by or in common control with the ownership of at least fifty percent (50%) or more of the voting stock or other interest entitled to vote on general decisions reserved to stockholders, partners, or other owners of such entity. An entity shall no longer be an Affiliate when through loss, divestment, dilution or other reduction of ownership, the requisite control no longer exists. c. Confidential Information ion that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used that either party discloses on or after the Effective Date, to the other contractors, officers, directors, partners, agents, attorneys, accountants or advisors. Confidential Information includes: business processes, practices, methods, policies, plans, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, databases, records, financial information, results, accounting information, accounting records, legal information, pricing information, credit information, payroll information, staffing information, internal controls, security procedures, sales information, revenue, costs, communications, original works of authorship, customer information, and customer lists. Confidential Information does not include information that: (a) was in the public domain prior or subsequent to the time such portion was communicated to the receiving party, through no fault of that party; (b) was any obligation of confidence at or subsequent to the time such portion was communicated by the disclosing party; (c) was developed by the receiving party independently of and without reference to any information communicated by the disclosing party; (d) was communicated by the disclosing party to an unaffiliated third party free of any obligation of confidence; or (e) is approved by the disclosing party for release by the receiving party. 2. INVOICES; PAYMENTS; PAST-DUE INVOICES; RENEWALS Unless expressly agreed otherwise, the Fee for the Initial Term will be invoiced on the Effective Date. At least 45 days prior to the expiration of the Initial or Renewal Term, Customer will be invoiced for the Fee for the Renewal Term. The Fee during any Renewal Term will be increased up to 5% above the Fee in the immediately prior term. Customer will pay all invoices within 30 days of issuance. Unless expressly agreed otherwise, all prices are in United States Dollars. There is no charge for updates to, or new releases of, Included Services. However Siteimprove may launch new modules/services/products that are not covered by the Fee. In the event that an invoice becomes past- due, Siteimprove will notify Customer by phone or email. After Siteimprove has provided notice, Customer will have five business days to pay the past-due invoice. If Customer fails to make the payment by the end of the cure period, then Siteimprove reserves the right to: (i) begin charging Customer interest for the past-due amount at an interest rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is smaller; (ii) www.siteimprove.com # 91994 Page 7 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com discontinue the Included Services; or (iii) terminate this Agreement pursuant to Section 3 (a) (Termination). 3. TERMINATION a. For Material Breach. Either party may terminate this Agreement in the event of a material breach by the other party of its obligations under this Agreement if the other party fails to cure the breach within 30 days after receipt of written notice of breach. b. For Convenience. During the Initial Term or Renewal Term, either party may terminate this Agreement at any time for its convenience, with or without cause, by giving written notice to the other party at least 60-days prior to the start of the Renewal Term. Customer remains liable for payment of all Fees owed and will not be entitled to a credit or refund when the Agreement is terminated by Customer pursuant to this Section 3(b). If Siteimprove terminates for convenience, Siteimprove shall provide customer with a prorated refund of the Fee. 4. INCLUDED SERVICES Subject to the terms and conditions of this Agreement, Siteimprove will allow the Customer to access the Included Services. a. Ownership. Customer acknowledges and agrees that Siteimprove owns and shall remain the sole owner of all intellectual property rights vested in the Included Services created prior to or during the performance by the parties of this Agreement. This ownership right includes any inventions, patents, utility model rights, copyrights, design rights, mask works, trademark rights, or know-how, whether registered or not. b. Use. The right to access the Included Services is worldwide, non-transferable, non-assignable (except as permitted in this Agreement) and limited in time to access and use during the Initial and any s. Customer will have access to the Included Services only for those website domain(s) authorized pursuant to this Agreement. c. Restrictions. This right is not a perpetual right to use, and Customer has no right to retain or to use the Included Services after termination of the Initial or Renewal Term. Customer has no right to rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the Included Services available to any third party. Without limiting the generality of any other provisions stated in this Agreement, the Included Services may not be (a) used in the performance of services for or on behalf of any third party or as a service bureau; (b) modified, incorporated into or combined with other software, or created as a derivative work of any part of the Included Services; (c) used to process any sensitive or personal information; or (d) used for any illegal purpose. Customer may not modify, disassemble, decompile or otherwise reverse engineer the Included Services nor permit any third party to do so except as expressly permitted by law. Siteimprove reserves all rights not expressly granted to Customer under this Agreement. The use of express access grant in this Section 4 is outside the scope of this Agreement. d. Support. Siteimprove will provide support to the Customer pursuant to the agreed plan attached as Exhibit C. In no event will Siteimprove be obligated to furnish support for any version of the Included Services that Customer has modified or altered in any way. e. Operational Data. The Included Services are designed to collect certain operational data, which may be used by Siteimprove for various business purposes, which may include customer support, verifying the need for and providing updates to the Included Services, market research and product terms and conditions of this Agreement and Customer has used the Included Services outside the parameters set forth in the Agreement, Customer will be required to pay additional fees to cover the additional use. f. Development Site. The Included Services may be used on a temporary staging environment, which hosts web content prior to the launch Development Site Complimentary Scanning applicable to a Development Site must not exceed permanent testing environments which remain active post-launch for ongoing testing and maintenance purposes are not eligible for Complimentary www.siteimprove.com # 91994 Page 8 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Scanning. To add a Development Site, Customer must either: (i) add the Development Site via the Siteimprove platform; or (ii) submit a ticket through the Siteimprove Help Center (https://support.siteimprove.com). 5. REPRESENTATIONS AND WARRANTIES a. For Siteimprove. Siteimprove represents and warrants that: (i) it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against it; (iii) entering into and performing its obligations under this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party; and (iv) the Included Services will perform substantially as described in this Agreement, provided that it is used in accordance with the Agreement, including on the specified domains. These representations and warranties are only for the benefit of Customer. b. For Customer. Customer represents and warrants that: (i) it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by it and constitutes the valid, legal and binding agreement of it and is enforceable against it; (iii) entering into and performing its obligations under this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party; (iv) it has full and legal right or authorization to display, disclose, transfer, assign or convey the information set forth and accessible on the websites on which the Included Services will be administered; and (v) it is aware that the Included Services are designed and developed to handle information that can be viewed on a public website and acknowledges that any data scanned through the Included Services on a Development Site will be processed and stored by Siteimprove just as data scanned on a public website. c. Disclaimer. Except for the express representations and warranties listed in this Agreement, each party makes no representations or warranties of any kind, whether express or implied, and expressly disclaims all warranties of title, non-infringement, merchantability, and fitness for a particular purpose. Unless set forth in this Agreement, no oral or written information or advice given by either party will create a representation or warranty. 6. FORCE MAJEURE No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party), when and to the extent such failure or delay is caused by or results from acts beyond the Force Majeure Events Events include: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. A change in economic circumstances is not a Force Majeure Event. If a Force Majeure Event occurs, the Impacted Party will provide prompt notice to the other party, stating the period of time the failure or delay is estimated to last. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice, either party may terminate this Agreement 7. LIMITATION OF LIABILITY a. In no event will either party or its agents, officers, directors, employees, successors, assigns, or Affiliates be liable to the other party or its agents, officers, directors, employees, successors, assigns, or Affiliates for any indirect, incidental, consequential, punitive, or other special damages. This limitation includes any loss of profits, business interruption, goodwill, loss of data/content or the restoration of any of those items. b. In addition to and without limiting the generality of Section 7(a), the aggregate liability of either party for any and all claims arising out of or relating to this Agreement will, in any circumstances, be limited to the Fees paid or payable by Customer to Siteimprove for the right www.siteimprove.com # 91994 Page 9 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com to access or use the Included Services during the Initial Term or any Renewal Term (as the case may be). 8. CONFIDENTIALITY Each party will: (a) hold Confidential Information in confidence; (b) use its best efforts to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; and (c) not disclose the party, except in response to a valid order by a court or other governmental body or as required by law. The receiving party will promptly give notice to the disclosing party of any unauthorized use or Information. The receiving party agrees to assist the disclosing party in remedying any such unauthorized Confidential Information. At any time, upon written request, the receiving party will return or destroy the Confidential Information that the disclosing party has provided to it. 9. ASSIGNABILITY This Agreement is binding upon and will inure to the benefit of the parties, their legal representatives, successors, and assigns. Except as otherwise expressly provided in this Agreement, neither party may assign, transfer, convey or encumber this Agreement or any rights granted in it, either voluntarily or by operation of law, without the prior written consent of the other party. Any attempt to do so is null and void. Notwithstanding the foregoing, a party shall have the right to assign this Agreement to its parent entity or affiliates or to a successor entity in the event of a merger, consolidation, transfer, sale, stock purchase, or public offering, provided the assignee is subject to all obligations of the Agreement. 10. NOTICES Unless expressly set forth in the Agreement, all notices and other communications required by this Agreement must be in writing and sent to the parties at the addresses set forth below via overnight courier service, express postal service, or email with read- receipt. Notices are effective only: (a) upon receipt; and (b) if the party giving the Notice has complied with the requirements of this Section. Notice to Customer should be sent to the address set forth in the Customer Information Section. Notice to Siteimprove should be sent to: Siteimprove, Inc. Attn: Legal Department 7807 Creekridge Circle Minneapolis, MN 55439 With a copy to: legal@siteimprove.com 11. GOVERNING LAW This Agreement will be governed by and construed in accordance with the laws of California and the United States of America, except for its conflicts of law rules and principles. In the event of any suit or proceeding arising out of or related to this Agreement, the courts of San Diego County, California will have exclusive jurisdiction and the parties will submit to the jurisdiction of those courts. 12. NO WAIVER The delay or failure of either party to exercise any right, power, or privilege under this Agreement is not to be treated as a waiver of that right, power, or privilege. 13. COUNTERPARTS The Agreement may be executed in any number of counterparts. Each counterpart is an original and, when combined with another counterpart, will be treated as part of the same document. Any counterparts of this Agreement may be delivered electronically in PDF format; these formats have the same effect as an original executed counterpart. 14. SEVERABILITY Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective to the extent of that prohibition or unenforceability in that jurisdiction. The validity, enforceability, or legality of the remaining provisions will not be affected. 15. ENTIRE AGREEMENT This Agreement constitutes and expresses the entire agreement and understanding between the parties. This Agreement supersedes any prior communications, understanding, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. The parties are not relying on any representations or warranties other than those expressly listed in this Agreement. Any standard or boilerplate terms and conditions included on any document provided by one party to another www.siteimprove.com # 91994 Page 10 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com (e.g., click-wrap agreements and purchase orders) are not part of this Agreement and will not be binding on either party. Any changes or modifications to this Agreement must be in writing, acknowledge the intent to amend the terms and conditions of this Agreement and be signed by an authorized representative of both parties before taking effect. www.siteimprove.com # 91994 Page 11 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com Exhibit C - Standard Support Plan 1. SELF-HELP RESOURCES. Customers can take full advantage of Siteimprove self-help tools, available online via our Help Center (https://support.siteimprove.com/). From that page, Customers can find links to technical documentation and knowledge base articles, discuss issues with other users in our community forums, review wha and access free webinars. 2. PRODUCT SUPPORT AND TRAINING. Customers can contact Siteimprove for product support, training, and additional services by visiting our Help Center (https://support.siteimprove.com/). At that location, Customers can submit a support ticket 24x7 every day of the year. Service Levels: Siteimprove will utilize commercially reasonable efforts to promptly respond to all requests. Siteimprove aspires to review and respond to at least ninety percent (90%) of all tickets and requests within three (3) Business Days. Besides general questions and technical issues, services covered by these tickets and requests include: Custom CMS deep-link setup Custom event-tracking setup (setup of three events) Custom setup of internal search tracking Setup of Development website crawls Severity Levels: When submitting a support ticket, Customers are asked to specify a severity level. The severity level is a Accurately defining the severity ensures a timely response and helps Siteimprove to better understand the nature of the issue. Cosmetic - Minor problem not impacting service functionality; Feature requests or missing or erroneous documentation; Question/ information request that does not affect delivery of service. Minor - Service is operational but partially degraded for some or all users, and an acceptable workaround or solution exists; The problem is with a non-critical feature or functionality. Major - Service is operational, but performance is highly degraded to the point of major impact on usage; Important features are unavailable, with no acceptable workaround, however, operations can continue in a restricted fashion; Access to a particular third-party application or service provider deemed noncritical is impacted. Critical - Service is down or unavailable; Critical features or functionality is unavailable or inaccessible, resulting in total disruption of work or critical business impact; Service crashes or hangs indefinitely causing unacceptable delays for resources or response; Data is corrupted or lost and must be restored. Any critical error encountered will be worked on by Siteimprove during EMEA business hours until resolved. 3. SUPPORT AVAILABILITY. Siteimprove has regional support centers servicing the Americas, EMEA and APAC. Open hours for these regional support centers are as follows. Americas Support Center - Minneapolis, MN, USA Weekdays 8:00 a.m. to 5:00 p.m. Central Standard Time (CST/CDT) -0600 UTC excluding the following holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, Day after Christmas, New Year's Eve EMEA Support Center - Copenhagen, Denmark Weekdays 8:00 a.m. to 5:00 p.m. Central European Time (CET/CEST) +0100 UTC excluding Danish public holidays APAC Support Center - Sydney, NSW, Australia Weekdays 8:00 a.m. to 5:00 p.m. Australian Eastern Standard Time (AEST/AEDT) +1000 UTC excluding New South Wales national and regional public holidays www.siteimprove.com # 91994 Page 12 of 12 Siteimprove Inc | 7807 Creekridge Circle | Minneapolis, MN 55439, USA +1 855 748 3467 | info@siteimprove.com | www.siteimprove.com 4. SUPPORT CHANGES. Siteimprove has the sole discretion to change the terms and conditions of the Standard Support Plan. Such changes shall not result in a reduction in the level of support set forth in this plan.