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Team Software LLC; 2021-04-05; PSA21-1423FAC
PSA21-1423FAC City Attorney Approved Version 6/12/18 1 AGREEMENT FOR CONTRACTOR MANAGEMENT SOFTWARE SERVICES TEAM SOFTWARE, LLC THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2021, by and between the City of Carlsbad, a municipal corporation, ("City"), and Team Software, LLC, a limited liability company of Delaware ("Contractor"). RECITALS A. City requires the professional services of a consultant that is experienced in providing a software solution for contractor management. B. Contractor has the necessary experience in providing professional services and advice related to providing contractor management software solutions. C. Contractor 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 attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of two (2) years from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional two (2) year periods or parts thereof. 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. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed fifteen thousand dollars ($15,000) per Agreement year. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed fifteen thousand dollars ($15,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 5th April PSA21-1423FAC City Attorney Approved Version 6/12/18 2 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. 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 attorney’s 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. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 3 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. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 4 maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. 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 Brian Bacardi Name Chris Ryan Title Public Works Superintendent Title Project Manager Department Public Works Address 407 S. 27th AveNUE City of Carlsbad Omaha, NE 68131 Address 405 Oak Ave. Phone No. 650-339-2926 Carlsbad, CA 92008 Email Chris.Ryan@teamsoftware.com Phone No. 760-434-2944 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. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 5 16. 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. Yes No 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 6 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. /// /// DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 7 26. 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 CITY OF CARLSBAD, a municipal corporation of the State of California TEAM SOFTWARE, LLC, a limited liability company of Delaware By: By: (sign here) Paz Gomez, Deputy City Manager, Public Works, as authorized by the City Manager Jason Krueger, Vice President / Secretary (print name/title) By: (sign here) (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 8 EXHIBIT “A” SCOPE OF SERVICES Contractor shall furnish all materials, equipment and labor necessary to provide The City of Carlsbad a full access subscription to the Lighthouse mobile workforce management software, provided by Teams Software as a service (SAAS). Scope of services shall include all-inclusive customer service, training, and complete implementation services. Contractor has waived any and all fees associated with their standard implementation services outline below: Standard Implementation Services Implementation services include 30 days of onboarding, training (includes material associated with training), bulk data load, and configuration review. Cost $0 The City shall maintain a minimum of 20 monthly user licenses during the term of this agreement. Cost for services shall be charged per user license on a monthly basis. The user license rate structure provides quantity discounts at the following intervals: Number of User Licenses Monthly Cost Per License 20 to 39 $25.00 40 to 59 $21.00 60 to 79 $17.00 80 to 99 $15.00 100 or More $13.00 Each user license for Lighthouse mobile workforce management software shall include a full access subscription to the associated browser-based web module and mobile app capabilities. Beyond the initial implementation support and training in the first 30 days of the agreement, contractor shall provide a dedicated account manager available during business hours, and 24/7 live chat for technical support. Contractor’s terms of service are attached in this document as Exhibit “B”. In the event of any conflict between the terms and conditions of the City’s Standard Professional Services Agreement and the Contractors terms listed in Exhibit ‘B”, the terms in the City’s Professional Services Agreement shall prevail. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 9 EXHIBIT “B” CONTRACTOR’S TERMS OF SERVICE Terms of Service and Subscription Agreement Last Updated: January 27, 2021 (for PSA with City of Carlsbad, CA These Terms of Service and Subscription Agreement (the “Agreement”) and the Order constitute a binding, written agreement by and between Team Software, LLC (“TEAM”) and the City of Carlsbad, a chartered municipal corporation who will use TEAM’s Services, Hardware, or Software (“Client”) (each a “Party” and collectively the “Parties”). By entering into an Order (defined below), by clicking “I Accept” or “I Agree” on any electronic version of this Agreement, by otherwise accessing or using any of TEAM’s Services, Hardware or Software (as each term is defined below), or by accessing a TEAM website, Client agrees to be bound by the terms and conditions set forth in this Agreement. If you are an individual entering into this Agreement on behalf of any company, organization or other entity, then you as the individual represent and warrant that you have the authority to bind such entity to the terms and conditions of this Agreement and, in which case, the term “Client” shall refer to such entity. This Agreement includes and incorporates any initial or subsequent service order, order form, schedule, exhibit, scope of work, or invoice and regardless of whether it was submitted in written or electronic form (each, an “Order”). TEAM’s use any personal information collected in relation to the Services, Hardware, Software, or any TEAM website is governed by TEAM’s Privacy Policy and Data Processing Addendum (“DPA”) located at https://teamsoftware.com/legal/, the terms of which are incorporated into this Agreement by reference. In consideration of the mutual agreements set forth in this Agreement, the Parties agree as follows: 1. Definitions. (a) “Affiliate” means, with respect to TEAM, any entity, including without limitation, corporation, company, partnership, limited liability company or group, that directly, or indirectly through one or more intermediaries, is controlled by or is under common control with TEAM. For purposes of this definition, the terms “controlled by” and “under common control with” means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise. (b) “Client Data” means any information or data that is transmitted, created, collected, stored, processed or otherwise made available by or to TEAM via the Software or Subscription Services. (c) “Documentation” means any online guides or policies provided or made available to Client in connection with the Subscription Services, Hardware or Software, as the same may be updated by TEAM, in its sole discretion, from time to time. (d) “Hardware” means third-party hardware, equipment or other product(s) which is sold or leased by TEAM to Client as specified in the Order. (e) “Professional Services” means the training, consulting, technical support or other professional services TEAM provides to Client, as specified on an Order or SOW. (f) “Software” means the object code version of the TEAM software program that TEAM’s licenses to Client, either as a stand-alone executable program or as pre-installed in the Hardware, as specified in the Order. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 10 (g) “Subscription Services” means TEAM’s software as a service accessed via the internet. (h) “Services” means the Professional Services and Subscription Services. (i) “Third Party Services” means services or applications provided by a third party which TEAM may make available to Client as part of the Services or Software. (j) “Term” means, with respect to the Subscription Services and Software, the subscription term indicated on the Order as well as any renewal terms designated therein; with respect rented Hardware, the rental period indicated on the Order; and, with respect to Professional Services, means the terms specified in the applicable Scope of Work (SOW). (k) “Termination” means, i) termination of this Agreement as provided under PSA, ii) expiration of all applicable Orders, or iii) acceptance by TEAM of a partial termination of an Order. In the event of a partial termination of an Order, Client will request in writing and identify the specific Subscription Services, Software, or rented Hardware that it is requesting TEAM to partially terminate, and the remaining Subscription Services, Software, or rented Hardware (if any) under this Agreement will continue in full force and effect until the termination of this Agreement. (l) “User” means any individual authorized by Client to use the Services, Hardware or Software including any User that has been issued a login name and password to access the Services, Hardware or Software. 2. Services. (a) During the Term, TEAM will make available to Client the Subscription Services set forth on the applicable Order, solely for its internal business purposes, and subject to the restrictions set forth in this Agreement and in the Documentation. Each Order will specify the applicable license term, pricing and licensing metric for Client’s use of the Services. Except for Client’s standard master professional services agreement, TEAM rejects any terms, conditions or provisions contained in any purchase order, document or other communication issued to TEAM in connection with an Order that omit or are additional to or inconsistent with the terms of this Agreement or the applicable Order. Client’s purchase of a subscription to use the Services under this Agreement is not contingent upon the delivery of any future functionality or features, or dependent on any comments made by TEAM regarding future functionality or features. (b) TEAM will use reasonable efforts to make the Subscription Services available to Client in accordance with TEAM’s current Service Level Agreement (“SLA”) found here, and which can also be made available to Client upon request. (c) TEAM will provide the Professional Services as set forth in the applicable Order. (d) The Parties may enter into additional Orders during the Term of this Agreement. Subject to Client’s compliance with the terms and conditions of this Agreement, TEAM hereby grants Client during the Term a right to access and use the Subscription Services for its internal business purposes through an Internet site(s) operated and hosted by TEAM. (e) TEAM may make available to Client certain Subscription Services on an evaluation, trial or beta test basis (the “Trial Service”). Client’s use of a Trial Service will be for the term specified in the applicable Order. TEAM may discontinue a Trial Service at any time in its sole discretion. TEAM provides the Trial Service to Client “as is” and without any warranty or indemnity of any kind. 3. Software. (a) License. During the Term, and in consideration of the payment of fees included in the Order, TEAM hereby grants to Client a nonexclusive and nontransferable license and right to use the DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 11 Software and any related Documentation solely in accordance with this Agreement and for Client’s internal business purposes. TEAM does not sell the Software or Documentation to Client, and TEAM always remains the owner of the Software and Documentation. The license granted in this Section 3 shall commence upon the delivery of the Software and shall continue for the Term specified in the applicable Order. Client’s use of the Software and Documentation is further subject to any license terms which are linked to or otherwise presented to Client upon installation of the Software. Unless otherwise set forth on the applicable Order or as installed on Hardware delivered in accordance with Section 4, TEAM will deliver the Software electronically to Client in a format reasonable acceptable to the Parties. Unless otherwise specified in the relevant Order, all Software is deemed accepted by Client upon delivery to the Client. (b) Software Support or Maintenance. In consideration of the payment of fees, sometimes referred to as annual Software license, support, or maintenance fees and specified in the Order, TEAM will use reasonable efforts to provide such Software support or maintenance services for the Software and in accordance with this Agreement. (c) Third-Party Services. When required, Third Party Services will be identified by TEAM in the applicable Order. TEAM may then make available to Client additional terms, if any, applicable to such Third-Party Services. Client’s access to and use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services. TEAM hereby represents and warrants that it has the right to use or license such Third-Party Services in conjunction with the Services or Software provided hereunder. TEAM is not responsible or liable for, makes no representations or warranties and provides no indemnification with respect to any aspect of the Third-Party Services. TEAM is not liable for any damage or loss caused or alleged to be caused by or in connection with enablement, access or use of any such Third-Party Services. TEAM may, upon ninety (90) days’ written notice to Client, discontinue any Third-Party Services. In addition, the Subscription Services and Software may include or incorporate certain components which are licensed or made available under separate terms by the third-party licensor of such components and/or under the terms of an open source software license. Any use of a third-party component by Client shall be governed by, and subject to, the terms and conditions of the separate terms applicable to such third-party component. 4. Hardware. This Section applies only to Orders which include Hardware. (a) Delivery. Delivery of the Hardware will be made with shipping charges to be paid by Client. Unless specifically agreed in writing, all shipments of Hardware shall be to the same address set forth on an Order. Title and risk of loss or damage in the Hardware passes from TEAM to Client upon the tender of shipment to the applicable carrier at TEAM’ shipping facility (but title in any rented Hardware will not pass to the Client). Client shall pay all shipping charges, insurance, duties and taxes required. TEAM may allocate production and deliveries of the Hardware in its sole and reasonable discretion. Shipping dates are approximate only. TEAM shall not be liable for any damage, loss, or expense incurred by Client if TEAM fails to meet a specified shipping date. Notwithstanding anything herein to the contrary, Client does not by virtue of this Section 4 (or any Order) acquire any right, title or interest in or to any pre-installed or embedded Software in the Hardware, other than the right to use such pre-installed or embedded Software solely in the normal operation of the Hardware and in accordance with any license terms for such Software. (b) Security Interest. If applicable, and to secure its obligations to make any and all payments required under this Agreement, Client hereby grants to TEAM a security interest, which may be a purchase money security interest, in the Hardware. TEAM may do such things as are necessary to achieve the purposes of this Section 4(b) including, without limitation, any notice filing under the Uniform Commercial Code (U.S.) (or other applicable law) in the appropriate jurisdiction(s). DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 12 Client agrees to execute and deliver any additional documents or instruments that TEAM may reasonably request from time to time to achieve the purposes of this Section 4(b), including to allow TEAM to perfect its security interest in the Hardware. (c) Installation; Support Services. If the Hardware is subject to installation on a site/location, TEAM or its appointed engineers must have installed it or supervised directly its installation, for support services for the Hardware to be available. Client will ensure that the site in which the Hardware will be installed satisfies TEAM’s specifications. Client shall, at its expense, obtain all licenses, permits, permission or consents required by any landlord or any other party applicable to the installation of such Hardware. In consideration of the payment of fees included in the Order, TEAM will use reasonable efforts to provide support services for the Hardware (if applicable) and in accordance with this Agreement. (d) Applicable Terms. All Hardware that is sold or rented to Client is also subject to the third-party manufacturer’s terms and conditions. Client acknowledges that TEAM merely acquired the Hardware for Client, and that the proprietary and intellectual property rights to the Hardware may be owned by parties other than TEAM. Client also acknowledges that, except for the payment to TEAM for the Hardware, all of Client’s rights and obligations with respect thereto flow from and to such third parties. Upon reasonable request, TEAM shall provide Client with copies of all documentation and warranties applicable to Client’s use of the Hardware that are provided to TEAM and which TEAM is permitted to provide to Client. (e) Rented Hardware. TEAM, as lessor of the rented Hardware, leases the Hardware to Client for the Term set forth in the applicable Order. In addition to the rights set forth in Section 4(b), TEAM shall have all the rights and remedies available to a secured party and lessor under this Agreement, the Uniform Commercial Code, or other applicable law. All rented Hardware shall always be and remain personal property regardless of how the same may be affixed to any realty or other property. TEAM shall be permitted to display notice of its ownership of the rented Hardware by affixing an identifying indicia of ownership. If Client fails to return the rented Hardware after termination or at the end of the rental period, or the rented Hardware is returned to TEAM in a damaged state (ordinary wear and tear excluded), then TEAM reserves the right to invoice Client for the total purchase price of such Hardware at the prevailing rate. 5. Use Restrictions and Acceptable Use. Client’s access and use of the Services and Software is subject to the following use rights and restrictions: (a) Use Restrictions. Client, in connection with its use of the Services and Software, shall: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Software, including keeping passwords and user names confidential and not permitting any third party to access or use Client passwords or accounts for the Services and Software; (ii) be solely responsible and liable for all activity conducted through its account in connection with the Services and Software, including all activity of any Users; (iii) promptly notify TEAM if Client becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Client’s (or any User’s) user name, password, or account; (iv) provide and maintain systems and materials reasonably required by TEAM to perform the Services and Software, including, as applicable, but not limited to: Client or third party software, hardware, systems, routing and network systems, addresses and configurations and key contacts for problem escalation (collectively the “Client Systems”); (v) use, or otherwise access in connection with Client’s use, the Services and Software only in accordance with applicable laws and government regulations; and (vi) comply in all respects with all applicable terms of the Third Party Services that it accesses or subscribes to, in connection with the Services. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 13 (b) Acceptable Use. Client shall not, and shall ensure that no Users are permitted to: (i) make the Services and Software available to anyone other than its employees and Users, including as a service bureau or third-party provider of the Services and Software to third parties; (ii) to the extent the Service is provided on a per User basis, allow more than one individual User to access the Services and Software using a single user password or account; (iii) use the Services and Software to store or transmit any content, including Client Data, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (iv) upload to, or transmit from, the Services and Software any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (v) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services and Software (including any mechanism used to restrict or control the functionality of the Services and Software), any third-party use of the Services and Software, or any third-party data contained therein; (vi) attempt to gain unauthorized access to the Services and Software, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services and Software; or (vii) access the Services and Software in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services or Software. (c) Suspension. TEAM reserves the right to suspend Client’s (or any User’s) access to the Services, without incurring any liability as result of such suspension: (i) for scheduled or emergency maintenance; (ii) if Client breaches this Agreement, including failure to pay any amounts due to TEAM; (iii) if Client breaches this Section 5; (iv) as it deems reasonably necessary to respond to any actual or potential security concerns; or (v) based on TEAM’s reasonable belief that Client’s or its Users’ use of the Services is violating applicable laws, rules or regulations. TEAM will provide advance written notice to Client, to the extent possible under the circumstances, of its intent to suspend Services. The suspension will continue until Client has resolved any violation to TEAM’s satisfaction. (d) Services Monitoring; Software Verification of Use. TEAM may electronically monitor the Services for the following purposes: (i) support, including diagnostics and corrective actions; (ii) to determine applicable fees due for Client’s use of the Services; (iii) to verify Client’s compliance with applicable terms and restrictions set forth in this Agreement. If such monitoring indicates Client or its Users are not in compliance with this Agreement, or if fraudulent activity is suspected, TEAM reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of any User’s access, the Services, or this Agreement. With respect to Software, during the applicable Term and for two (2) years after its Termination, TEAM will, upon ten (10) business days’ notice, have the right to audit Client’s use of the Software to confirm compliance with this Agreement. Client will reasonably cooperate with TEAM in the performance of any such audit and will, without prejudice to any other rights of TEAM under this Agreement, (i) promptly address any non-compliance identified by the audit. 6. Intellectual Property. (a) Services. As between Client and TEAM, TEAM retains all right, title, and interest in and to the Services and Software. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services and Software or any of TEAM’s rights or interests therein or any other TEAM intellectual property, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services and Software not expressly granted in this Agreement are reserved by TEAM. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 14 (b) Client Data. Client shall retain all right, title and interest in and to, and all intellectual property rights in, the Client Data. Client hereby grants TEAM a limited, worldwide, non-exclusive license to access, use, reproduce, electronically distribute, transmit, display, store, archive and index the Client Data for the purpose of providing the Services and Software to Client and supporting Client’s use of the Services and Software. Notwithstanding anything in this Agreement to the contrary, and except where expressly prohibited by law, Client agrees that TEAM may collect and analyze data and other information relating to the provision, use and performance of the Services and Software (including, without limitation, information concerning Client Data and data derived therefrom), and TEAM may (during and after the Term hereof) (i) use such information and data to improve and enhance the Services and Software (for Client and any other client) and for other development, diagnostic, benchmarking and/or corrective purposes in connection with the Services, Software and other TEAM offerings, and/or (ii) use such data solely in aggregate or other de-identified form in connection with TEAM’s business. (c) Responsibility for Client Data. Client is solely responsible for the Client Data that Client and its authorized Users upload, publish, display, link to, or otherwise make available via the Services and Software. (d) Feedback. To the extent Client or any of its Users offers TEAM any feedback, comments or suggestions regarding the Services, Hardware or Software, (the “Feedback”), Client irrevocably assigns to TEAM all right, title and interest in and to the Feedback. TEAM may freely use or exploit Feedback for any lawful purpose. 7. Representations and Warranties. (a) Mutual Representations. Each Party represents and warrants to the other that: (i) its execution and performance of this Agreement will not violate any provision of law, rule, regulation to which such Party is subject; (ii) it will comply with all laws, rules and regulations pursuant to which such Party conducts its business; (iii) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (iv) the execution, delivery, and performance of this Agreement has been duly authorized by such Party; (v) no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement; and (vi) the signatory to this Agreement possesses all necessary authority to enter into this Agreement. (b) TEAM Representations. TEAM further warrants that: (i) the Services will be performed in a professional and workmanlike manner; and (ii) the Subscription Services and Software will conform in all material respects with applicable Documentation made available by TEAM to Client in connection with the applicable Order. (c) Client Representations. Client represents and warrants that: (i) the Client Systems and the Client Data will be in compliance with all laws, rules, and regulations; (ii) Client is solely responsible for providing to TEAM sufficient rights to use the Client Systems and Client Data; (iii) Client’s processing instructions to TEAM with respect to the Client Systems and Client Data do not violate the rights of any third party or any law, rule, or regulation; and (iv) in connection with Client’s use of the Services and Software, as well as TEAM’s provision of the Services or Software, Client has obtained all consents, authorizations, or lawful bases and taken any other steps required by applicable law to collect, store, disclose, transfer (including, transferring between two countries as provided in this Agreement and the DPA), and use any personally identifiable information included in Client Data uploaded or used in connection with Client’s use of the Services and Software in compliance with such law. Client specifically acknowledges and DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 15 agrees that, except as may be required under applicable law, TEAM has not and is not expected to provide Client with any analysis, interpretation or advice regarding the compliance of any aspect of the Client Data or Client Systems with any third-party rights or laws, rules, or regulations. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this Agreement and TEAM shall have no obligation to provide Services and Software where TEAM reasonably believes that Client has not so complied. (d) Disclaimer. THE SERVICES, HARDWARE AND SOFTWARE ARE PROVIDED BY TEAM “AS IS.” EXCEPT WHERE SUCH DISCLAIMER IS PROHIBITED BY APPLICABLE LAW, TEAM DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM OF SATISFACTORY QUALITY, MERCHANTABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR INTELLECTUAL PROPERTY INFRINGEMENT AND TEAM HEREBY EXPRESSLY DISCLAIMS ANY OF THE FOREGOING. TEAM DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICES, HARDWARE AND SOFTWARE WILL OPERATE ERROR FREE, (II) CLIENT’S USE OF THE SERVICES, HARDWARE AND SOFTWARE WILL BE UNINTERRUPTED OR (III) ALL DEFECTS WILL BE IDENTIFIED, REPRODUCIBLE OR RESOLVED. SUCH WARRANTIES, CONDITIONS OR OTHER TERMS SHALL NOT BE ENLARGED, DIMINISHED OR OTHERWISE AFFECTED BY THE RENDERING OF ANY ADVICE OR SERVICE BY TEAM IN CONNECTION WITH THE SERVICES, HARDWARE AND SOFTWARE OR BY ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM ARISING OUT OF ANY COURSE OF DEALING, BY STATUTE, OR BY PERFORMANCE, CUSTOM OR USAGE OF TRADE. 8. Fees. Client agrees to pay for the Services, Hardware and Software in accordance with the rates set forth in the applicable Order. Unless otherwise specified on an Order, all Fees are payable in United States Dollars (USD). Fees for Services, Hardware and Software are exclusive of all service, sales, use, and value-added taxes, duties, levies, or other fees, if any (collectively, “Taxes”). Client is responsible for all Taxes (except for taxes on TEAM’s net income) which may be assessed or levied by any governmental authority with respect to the Services, Hardware and Software provided by TEAM to Client pursuant to this Agreement. TEAM may increase the price of the Subscription Services, Software, or rented Hardware after completion of the initial Term, but not more than once per year, by providing Client with written notice of such increase at least sixty (60) days prior to the start of the upcoming renewal Term. Any amount due to TEAM hereunder will be due and payable via electronic funds. Invoices are due upon receipt, or in accordance with the applicable payment terms on the Order. Invoices will be transmitted electronically pursuant to TEAM’s invoicing procedures. If part of an invoice is in dispute, Client agrees to pay the undisputed portion of the invoice and make a note on the invoice regarding the disputed portion within thirty (30) days from the date of invoice, otherwise Client will be deemed to agree to such charges and TEAM will not be subject to making adjustments to charges or invoices. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 16 9. Confidentiality and Proprietary Information; Data Privacy and Security. (a) Confidential Information. Each Party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other Party (the “Recipient”). In each such case, the Recipient shall hold such Confidential Information in confidence and shall not disclose such Confidential Information except to a Party’s employees or agents who have a need to know such Confidential Information in order to perform such Party’s obligations under this Agreement. Neither Party shall have any rights in the other Party’s Confidential Information and where possible, shall return or destroy all such Confidential Information upon the Termination or expiration of this Agreement. (i) Client’s Confidential Information shall include Client Data. (ii) TEAM’s Confidential Information shall include the computers, systems and software operating the Service and all Documentation, development tools, phone numbers, know-how and data related thereto, and any derivative works thereof as well as physical property, analytical procedures, techniques, skills, ideas, models, research, development, trade secrets, or business affairs of TEAM or its employees, suppliers or agents. (b) Client Data. With respect to Client Data, upon expiration or Termination of this Agreement for any reason, TEAM will return the Client Data in raw form to Client in a generally recognized format mutually agreed to with Client. Notwithstanding the foregoing, the Parties acknowledge that TEAM shall not be required to return to Client or destroy those copies of Confidential Information residing on TEAM’s backup, disaster recovery, or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Confidential Information is destroyed. (c) Exceptions. Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (i) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (ii) lawfully becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (iii) is generally available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (iv) is subsequently and independently developed by employees, consultants or agents of the Recipient without reference to the Confidential Information disclosed hereunder. In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party of the request prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. (d) Security Practices. TEAM uses industry-standard administrative, technical, physical, and other safeguards (the “Security Program”) to preserve the Client Data. A copy of TEAM’s current Security Program can be found at https://teamsoftware.com/legal/. (e) Privacy Policy; Personal Data Processing. TEAM handles all Client Data in accordance with its privacy policy (the “Privacy Policy”). A copy of TEAM’s current Privacy Policy can be found at https://teamsoftware.com/legal/. In addition, and unless otherwise separately agreed to by the Parties, to the extent that TEAM is processing Client Data that relates to an identified or identifiable natural person that is protected as personal data under applicable data protection laws DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 17 and regulations of the European Economic Area and its member states, Switzerland, or the United Kingdom, the Parties agree to comply with the Data Processing Addendum found at https://teamsoftware.com/legal/. (f) California Public Records Act. Client is subject to the California Public Records Act and this Section 9 is not intended to impede or impair Client’s requirements or obligations under that Act. 10. Reserved. 11. Limited Warranty and Limitation of Liability. (a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, TEAM MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND TEAM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. TEAM EXPRESSLY DENIES ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES, HARDWARE OR SOFTWARE OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. (b) TEAM SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR , LOST DATA OR LOST PROFITS, COST OF CAPITAL, COST OF COVER, OR SERVICE INTERRUPTIONS, FROM THE USE OF OR INABILITY TO USE THE HARDWARE, SOFTWARE OR THE SERVICES, IRRESPECTIVE OF WHETHER SUCH DAMAGES CONSTITUTE DIRECT OR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE EXCLUSIONS SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. (c) THE TOTAL LIABILITY OF TEAM FOR ANY REASON, SHALL BE LIMITED TO TEAMS LEVELS OF INSURANCE, UNDER THE ORDER APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION. FOR THE AVOIDANCE OF DOUBT, AND IN RELATION TO THE INSURANCE PROVISIONS UNDER THE PROFESSIONAL SERVICES AGREEMENT, CLIENT WILL NOT FILE ANY CLAIM WITH TEAM’S INSURANCE CARRIERS WITHOUT THE PARTIES FIRST DISCUSSING OTHER POTENTIAL REMEDIES UNDER THE AGREEMENT AND OBTAINING WRITTEN APPROVAL FROM TEAM PRIOR TO EACH INSTANCE OF ANY POTENTIAL CLAIM BEING FILED. THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS SPECIFIED IN THIS SECTION 11 SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. (d) Nothing in this Agreement limits any liability for: (i) death or personal injury caused by a Party’s negligence; (ii) gross negligence, willful misconduct, fraud or fraudulent misrepresentation; or (iii) any liability which cannot be excluded by applicable law. (e) Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance (other than Client’s obligation to pay undisputed fees) due to causes beyond its reasonable DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 18 control, including, but without limiting the generality of the foregoing: acts of God or of the public enemy; fire or explosion; flood; stability or availability of the Internet; telecommunication system failure; war; technology attacks; acts of terrorism; riots; embargoes; quarantine; viruses; pandemic; strikes; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing (“Force Majeure Event”). Nothing in this Section 11 shall limit TEAM’s obligations regarding disaster recovery services provided in connection with the Services. 12. Export Compliance, Government Use, and Other Regulations. (a) The Services and Software may be subject to the trade laws and regulations including, but not limited to the Export Administration Regulation (EAR) and the sanctions program administered by the United States Government Office of Foreign Assets Control (OFAC). Client represents and warrants that it is not owned or controlled by any person or entity on the OFAC Specially Designated Nationals List. (b) Client shall not export, re-export or release, directly or indirectly, or otherwise use the Services and Software in or to any country or jurisdiction to which the export, re-export or release of the same (i) is prohibited by applicable law, regulation, or to any country which is the subject of an embargo, or to any individual on a Specially Designated Nationals List; and (ii) without first obtaining any licenses and permits which may be required under the applicable export laws. (c) TEAM and Client mutually represent and warrant to one another that each complies with those laws applicable to their respective roles in the provisioning of the Services and this Agreement in the countries in which TEAM operates including, as applicable, the United States Foreign Corrupt Practices Act, the UK Bribery Act 2010, and those laws and regulations applicable to human trafficking and slavery. 13. Administrative Provisions. (a) Equitable Relief. Unless otherwise specified in this Agreement, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and are in addition to all other rights, remedies and powers given under this Agreement or any laws now existing or subsequently enacted. Client acknowledges and agrees that if it breaches any of the licensing or confidentiality obligations under this Agreement, TEAM may suffer immediate and irreparable harm for which monetary damages alone are not a sufficient remedy, and that, in addition to any other remedies TEAM may have, TEAM is entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy the breach or threatened breach by Client and to enforce this Agreement. (b) Severability; Waiver. If any provision of this Agreement is declared void or unenforceable, then the provision is automatically amended to the minimum extent required to make it valid, legal, enforceable and nearest to the original intent, and the other provisions remain in full force and effect. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. The waiver of a breach does not operate as a waiver of any subsequent breach. (c) Interpretation; Captions. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise for or against any Party by virtue of the authorship of any of the provisions of this Agreement. The DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 PSA21-1423FAC City Attorney Approved Version 6/12/18 19 captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect. (e) Governing Law. The Parties acknowledge and agree that neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement. (f) Third Party Rights. Except as expressly provided in this Agreement relative to TEAM’s Affiliates’ rights to enforce the terms of this Agreement against Client, there are no third-party beneficiaries to this Agreement. DocuSign Envelope ID: 7A25B40A-6EC1-45EE-9FA2-3B6D4DDCF393 ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTRINSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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 have ADDITIONAL INSURED provisions or 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 3/29/2021 License # 0757776 20281 Team Software, LLC 407 S 27th Avenue Omaha, NE 68131 20303 12777 23752 A 1,000,000 X 3605-42-50 8/1/2020 10/31/2021 1,000,000 10,000 1,000,000 2,000,000 2,000,000 GLOBAL AGGREGAT 5,000,000 1,000,000B 7361-55-02 8/1/2020 10/31/2021 10,000,000A 7989-67-51 8/1/2020 10/31/2021 10,000,000 C X 7183-36-79 8/1/2020 8/1/2021 1,000,000 N 1,000,000 1,000,000 D Cyber/Tech E&O EOPL2010000084-01 8/1/2020 Occ / Agg 5,000,000 RE: Operations of the Named Insured during the current policy term. (Agreement Name: Contractor Management Software Service, Agreement Number : PSA21-1423FAC) City of Carlsbad/CMWD is Additional Insured with regard to General Liability when required by written contract, endorsement form to follow from carrier. Waiver of Subrogation with regard to Workers Compensation applies when required by written contract, endorsement form to follow from carrier. City of Carlsbad/CMWD c/o EXIGIS Insurance Compliance Services P.O. Box 947 Murrieta, CA 92564 TEAMSOF-01 EBRITO HUB International Insurance Services Inc. 44 Second Street San Francisco, CA 94105 Victoria Canepa victoria.canepa@hubinternational.com Federal Insurance Company Great Northern Insurance Company Chubb Indemnity Insurance Company Ascot Insurance Company Aggregate X 10/31/2021 X X X X X X X FORM NUMBER: EFFECTIVE DATE: The ACORD name and logo are registered marks of ACORD ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE FORM TITLE: Page of THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, ACORD 101 (2008/01) AGENCY CUSTOMER ID: LOC #: AGENCY NAMED INSURED POLICY NUMBER CARRIER NAIC CODE © 2008 ACORD CORPORATION. All rights reserved. HUB International Insurance Services Inc. TEAMSOF-01 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance License # 0757776 0 SEE P 1 Team Software, LLC 407 S 27th Avenue Omaha, NE 68131 SEE PAGE 1 EBRITO 1 Named Insureds Covered Entities: Teamster Buyer Inc. TEAM Financial Management Systems, Inc. Team Software, Inc. Lighthouse.IO, Inc. Lighthouse.IO PTY Limited Kwantek, LLC TEAM Bidco Limited Innovise Limited Innovise S&S Holdings Limited Innovise Software Limited Identifile Systems Limited Innovise Canada Limited Innovise Solutions Limited Timegate IPR Limited Ausped Limited Roster Management Limited Innovise EBT Limited MOI Holdings Limited Ministry of Ideas Z.O.O. Ministry of Ideas Registered Limited MOI Limited Templa Computer Systems Limited