HomeMy WebLinkAbout04-08-19 City Commission Packet Materials - C6. Agreement with Governance Sciences Group for FlashVote Survey Services
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Melody Mileur, Communications Coordinator
Andrea Surratt, City Manager
SUBJECT: Authorize the City Manager to sign a Software as a Service Agreement with Government Sciences Group, Inc for FlashVote survey services
MEETING DATE: April 8, 2019
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize City Manager to sign the Software as a Service Agreement for one year of scientific surveys through FlashVote
BACKGROUND: The City of Bozeman Strategic Plan identifies in Section 1.1a the need for
a City Communications Plan and Protocol. City staff have elected to complete the plan in-house
to save on costs of hiring an outside consultant. The services of FlashVote will provide the opportunity to pull together a group of Bozeman residents who have a vested interest in making Bozeman better through survey feedback. Survey data will help to inform the strategies outlined
in the Communications Plan as well as other relevant Bozeman topics of interest for a maximum
of six surveys over the length of the contract.
UNRESOLVED ISSUES: None. ALTERNATIVES: As suggested by the City Commission.
FISCAL EFFECTS: This service is budgeted for in the General Fund for FY 2019.
Attachments: Software as a Service Agreement
Scope of Services
Report compiled on: April 8, 2019
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AGREEMENT FOR
THIS AGREEMENT is made and entered into this _____ day of ____________, 2019,
by and between the CITY OF BOZEMAN, with a mailing address of PO Box 1230, Bozeman,
MT 59771, hereinafter referred to as “City,” and Governance Sciences Group, Inc., with a
mailing address of 111 West Proctor Street, Suite 10 Carson City, NV 89073, hereinafter referred
to as “Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: The City agrees to enter this Agreement with Contractor to perform for
the City services described in the Scope of Services.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
(“Effective Date”) and will terminate five years from the Effective Date.
3. Scope of Services: Contractor will provide the license and provide the subscription
services described herein and in the SaaS Services Agreement attached hereto as Attachment A,
which is incorporated herein by this reference. For conflicts between this Agreement and
Attachment A, unless specifically provided otherwise, the Agreement governs.
4. Payment: The City agrees to pay Contractor as specified on the applicable Order
Form which is incorporated into the SaaS Services Agreement attached hereto as Attachment A.
Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Contractor after written request by the City, and will
become an additional charge over and above the amount listed in the Scope of Services. The City
must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce the City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
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and regulations that in any manner may affect cost, progress or performance of the Scope of
Services.
b. Contractor represents and warrants to the City that it has the experience and ability
to perform the services required by this Agreement; that it will perform said services in a
professional, competent and timely manner and with diligence and skill; that it has the power to
enter into and perform this Agreement and grant the rights granted in it; and that its performance
of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City of Bozeman for any purpose. Contractor is not subject to the terms and
provisions of the City’s personnel policies handbook and may not be considered a City employee
for workers’ compensation or any other purpose. Contractor is not authorized to represent the City
or otherwise bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without expectation
of reimbursement from the City, to alleviate or resolve all such labor problems or disputes. The
specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however,
that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate
relief to the City so as to permit the services to continue at no additional cost to the City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
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connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify,
and hold harmless the City, its agents, representatives, employees, and officers (collectively
referred to for purposes of this Section as the City) from and against any and all claims, demands,
actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of
the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses,
and expenses, including reasonable defense attorney fees, to the extent caused by the negligence
or willful misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of
the indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the
Contractor to assert its right to defense or indemnification under this Agreement or under the
Contractor’s applicable insurance policies required below the indemnitee shall be entitled to
recover reasonable costs and attorney fees incurred in asserting its right to indemnification or
defense but only if a court of competent jurisdiction determines the Contractor was obligated to
defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s)
thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
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Contractor also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except “responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate; and
• Automobile Liability - $1,000,000 property damage/bodily injury per accident.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
within two (2) business days of Contractor’s receipt of notice that any required insurance coverage
will be terminated or Contractor’s decision to terminate any required insurance coverage for any
reason.
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The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor’s right to proceed with all or any part of the work
(“Termination Notice Due to Contractor’s Fault”). The City may then take over the work
and complete it, either with its own resources or by re-letting the contract to any other third
party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for
City’s Convenience”). The termination shall be effective in the manner specified in the
Notice of Termination for City’s Convenience and shall be without prejudice to any claims
that the City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work,
incurring additional expenses or costs under this Agreement and shall immediately cancel
all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only
such work as may be necessary to preserve, protect, and maintain work already completed
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or immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to
the claim. In the event Contractor fails to provide such notice, Contractor shall waive all
rights to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Robin Crough or such other individual as City shall designate in
writing. Whenever approval or authorization from or communication or submission to City
is required by this Agreement, such communication or submission shall be directed to
Robin Crough as the City’s Representative and approvals or authorizations shall be issued
only by such Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents as listed above and may receive approvals or
authorization from such persons.
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b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be Kevin Lyons or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor’s Representative; provided, however, that in exigent circumstances when
Contractor’s Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City,
County, and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the
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U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that
the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City
Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
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a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration
of this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
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to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
30. Extensions: this Agreement may, upon mutual agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement run
longer than six years.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN GOVERNANCE SCIENCES INC.
By________________________________ By _________________________________
Andrea Surratt, City Manager
Print Name: _________________________
APPROVED AS TO FORM: Print Title: __________________________
___________________________________
Greg Sullivan, City Attorney
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ATTACHMENT A
FLASHVOTE SAAS SERVICES AGREEMENT
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FLASHVOTE SERVICES ORDER FORM
Customer: City of Bozeman Contact: Melody Mileur
Address: 121 N. Rouse Ave.
Bozeman, MT 59715
Phone: 406.582.2322
E-Mail: MMileur@bozeman.net
Services: Governance Sciences Group, Inc (“the Company”) will provide the Standard Tier of annual FlashVote services (the “Service(s)”). This is a program of up to 6 FlashVote Surveys, including up to 4 Custom FlashVote
Surveys and up to 2 Tailored or Stock FlashVote Surveys.
Launch services, additional Custom FlashVote Surveys and other Premium features are available as options for additional and separate fees.
Services Fees: $4,900.00 per year, payable in advance, subject to the terms of Section 4 herein. Initial Service Term: One Year (February 1, 2019 to January 31, 2020)
Implementation Services: Company will use commercially reasonable efforts to provide Customer the services
described in the Statement of Work (“SOW”) attached as Exhibit A hereto (“Implementation Services”), and Customer shall pay Company the Implementation Fee in accordance with the terms herein.
Implementation Fee (one-time): $0 (Discounted by Company)
SAAS SERVICES AGREEMENT
This SaaS Services Agreement (“Agreement”) is entered into on this _______ day of ______________, 2019 (the “Effective Date”) between Governance Sciences Group, Inc. with a place of business in Incline Village, Nevada
(“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers,
and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form unless signed by both parties hereto.
Governance Sciences Group, Inc.: Customer:
By: _/s/Kevin Lyons/s/______ By:
Name: Kevin Lyons Name:
Title: CEO Title:
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TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure,
ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the
terms of this Agreement.
2.3 Customer represents, covenants, and warrants that
Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the
foregoing.
2.4 Customer shall be responsible for obtaining and
maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including,
without limitation, phones, modems, hardware, servers, software, operating systems, networking, web servers and the like
(collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account,
passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the
Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may
disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as
“Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information
regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data
provided by Customer to Company to enable the provision of the Services (“Customer Data”) such as non-public citizen email
addresses or other non-public citizen data. The Receiving Party agrees: (i) to take reasonable precautions to protect such
Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or
divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply
with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or
(b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without
restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing
Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to
the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all
improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed
in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other
information relating to the provision, use and performance of various aspects of the Services and related systems and
technologies (including, without limitation, provision, use and performance information concerning Customer Data and
provision, use and performance data derived therefrom), and Company will be free (during and after the term hereof) to (i) use
such provision, use and performance information and data to improve and enhance the Services and for other development
diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such
provision, use and performance data solely in aggregate or other de-identified form in connection with its business. No rights or
licenses are granted except as expressly set forth herein. In its
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use of Customer Data, Company understands and agrees to comply with the requirements of Montana’s public records
statutes, Title 2, Chapter 5, Part 10, including the statute’s prohibition on dissemination or use of distribution lists in § 2-6-
1017, MCA.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation
Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services requires the payment of
additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the
additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to
institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior
notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly,
Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or
problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support
department.
4.2 Company may choose to bill through an invoice, in
which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing
date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the
maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination
of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net
income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the
Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term
(collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-
current term.
5.2 In addition to any other remedies it may have, either
party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other
party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and
including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive
termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations,
warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with
prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services
and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily
unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party
providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to
provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE
PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
Company shall hold Customer harmless from liability to
third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any
trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given
reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible
for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components
of the Service (i) not supplied by Company, (ii) made in whole in accordance with Customer specifications, (iii) that are modified
after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to
such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being
informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not
strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent
jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify
the Service to be non-infringing provided that such modification or replacement contains substantially similar features and
functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially
practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused
fees for the Service.
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8. MISCELLANEOUS
If any provision of this Agreement is found to be
unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this
Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or
sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and
obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other
understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by
both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of
this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action
or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’
fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if
personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent
for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return
receipt requested. This Agreement shall be governed by the laws of the State of Montana without regard to its conflict of laws
provisions.
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EXHIBIT A
Statement of Work
CUSTOMER PROPOSAL FOR BOZEMAN, 1/19/19
FLASHVOTE SERVICE PRICE NOTES
X CUSTOMER SETUP $0 Discounted from $1900 (for Introductory Customers)
LAUNCH: CHOOSE ONE (You can always upgrade later)
X STARTER LAUNCH $0 Launch from email lists, if any, and customer self-
promotion
BASIC LAUNCH (each 1000
invitations) $550 Randomized and individualized postcard invitations
targeted to 1000 potential users ($0.55 each)
FULL LAUNCH $TBD Invitation postcards or letters sent to up to all potential
user addresses
TOTAL LAUNCH $0
ANNUAL SERVICE: CHOOSE ONE (You can always upgrade later)
STARTER SERVICE
Up to 2 Stock Surveys $2,900 Annual Fee: Introductory Customer pricing
X BASIC SERVICE
Up to 4 Custom Surveys plus
up to 2 Tailored or Stock
$4,900 Annual Fee: Introductory Customer pricing
FULL SERVICE
Up to 8 Custom Surveys plus
up to 4 Tailored or Stock
$8,900 Annual Fee: Introductory Customer pricing
SPANISH LANGUAGE $3,000 Discounted (for Introductory Customers)
TOTAL ANNUAL SERVICE $4,900
GRAND TOTAL $4,900
Offer and pricing valid for 30 days from date above
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STARTER SERVICE INCLUDES
Annual program of up to 2 Stock Surveys
• Stock surveys are selected from our preapproved library of surveys
Result reporting
• Participation rates and result reporting with selectable demographic filters
• PDF of standard results formats available
All user management and user technical support
• User self-management and activity opportunities (24/7)
• All citizen/user technical and support issues are handled by FlashVote
BASIC SERVICE INCLUDES
Starter Service plus up to 4 Custom Surveys, plus may substitute Tailored Surveys for Stock Surveys
• Custom Surveys are new surveys created for unique customer needs that are not expected to
have future usefulness with other customers
• Tailored Surveys are surveys created for a customer that are expected to have future use for
other customers or that are tailored for a customer from past surveys or individual questions
Expert survey design and quality control service
• Professional drafting of questions and design of Custom FlashVote Surveys
• Quality control reviews as part of survey finalization and launch
FULL SERVICE INCLUDES
Basic Service plus up to 4 more Custom Surveys and up to 2 more Tailored or Stock (12 Total)
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LAUNCH OPTIONS
Self-promoted launch ($0, included in setup)
• Setup guide with sample text and links for email invitations, plus custom signup page
• Custom website link to promote sign up and surveys
• Recommendations for cobranded brochures or mailer inserts that can be self-printed
Basic launch ($550 per 1000 individually addressed postcards)
• Cobranded post cards encouraging signup, to random or other selection from address list
Full launch (Price based on $0.55 or less per mailed postcard depending on scale)
• Cobranded post cards encouraging signup, to all local addresses
Other launch options ($TBD based on Quantities of each)
• Cobranded flyers, business cards, rack cards or door hangers encouraging signup
OPTIONAL AND SUBSTITUTE SERVICES
Additional custom surveys ($TBD based on Quantities of each)
• Blocks of 2 to 12 or more additional custom surveys may be purchased
• Multi-survey Modules (or substitute for preset and custom surveys)
Professional FlashPolicy rapid policy analysis and development projects ($TBD)
• In-person problem assessment and citizen workshop facilitation
• Up to 4 custom FlashVote surveys (up to weekly) to iterate solutions
• In-person results and recommendations presentation within 6 to 8 weeks of start
User Address validation via postcard for individual users ($TBD)
OTHER NOTES
Introductory Customer pricing includes waivers or discounts of Set Up Fees and an Annual Fee that
may represent a discount from Annual Fee pricing for future years or future customers.
Introductory Customer pricing may be continued indefinitely subject to Introductory Customer
successfully referring at least 2 new customers to FlashVote each year.
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EXHIBIT B
Support Terms
Company will provide Technical Support to Customer and Customer’s users via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by calling 775-235-2240 or any time by emailing support@flashvote.com.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
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