HomeMy WebLinkAbout21- Professional Services Agreement - Ascendant - Community Development Platform
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City of Bozeman, MT ClearPoint Strategy Software & Support Agreement
Ascendant Strategy Management Group, LLC, a Massachusetts limited liability company (“Ascendant”),
and City of Bozeman, MT, (“Bozeman”), hereby agree to this ClearPoint Strategy Software & Support
Agreement (the “Agreement”). This Agreement incorporates and is subject to the Terms and Conditions
attached hereto as Exhibit A, and all references to the Agreement herein shall include the Terms and
Conditions. Definitions
Except as otherwise provided in this Agreement, the definitions set forth in the Terms and Conditions shall
apply.
“You”, “your” and similar terms in the Terms and Conditions shall mean Bozeman.
References to “Order Forms” in the Terms and Conditions shall include this Agreement.
“ClearPoint” and “ClearPoint Strategy” refers to a certain cloud-based strategy and performance
management software, designed to allow Bozeman to track its goals, metrics, projects, and action items
across its entire organization.
The “Start Date” shall mean June 22, 2021.
The “Initial Commitment Term” shall be 12 months, commencing on the Start Date and ending, unless
terminated earlier pursuant to the provisions of this Agreement, on June 21, 2022(the “End Date”). ClearPoint Enterprise Package
Bozeman has selected the ClearPoint Enterprise Package, which includes the following services, as more
fully detailed herein and in the Terms and Conditions:
• 25 full users
• Unlimited view-only users
• Discounted update-only users
• Premium Support
• Onboarding
• Data Loader Access
• Single Sign-on
• Html Exports
• API Access
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User Licenses
Bozeman shall be entitled to 25 full “Editor/Administrator” users (users that can add, edit, and update
information in ClearPoint). Additional “Editor/Administrator” users may be added at any time, upon
request by Bozeman, on a pro-rated basis of $600/year. Update only users may be added for
$120/user/year. Also included are an unlimited number of view-only “Browser” users. Support
All Users authorized by Bozeman shall be entitled to Basic Support, which includes email and online
forum support with a 24-hour response time. Bozeman may purchase “Premium Support” which allows
three (3) named contacts to request and receive 4-hour priority email and telephone support services
from a qualified ClearPoint Engineer throughout the year.
ClearPoint Support Options Basic Support Premium Support
Access to Support Forum Included Included
Email Support 24-Hour Response 4-Hour Response
Telephone Support Included
Live in-app messaging Included
Video Screen-Sharing Support Included
Additional Premium Support named contacts may be added at any time, upon request by Bozeman, for
an additional cost of $3,300 per year. Onboarding
Included in the Enterprise Package, Ascendant will provide initial account setup support, during the first
14 days after the Start Date, including a “kick-off call” to set goals and expectations; assistance
configuring periods and reporting frequencies, scorecards and element names, custom fields, summary
reports, and briefing books; adding Users accounts; conducting an administrator orientation session;
and setting up reminder emails.
Onboarding does not include Scorecard Setup or Additional Training, as described below. Bozeman is
responsible for creating and maintaining its scorecards, including categories, objectives, measures,
initiatives, and action items. Bozeman is also responsible for meta data on these elements, including
information such as descriptions, owner, data source, dates, and any custom fields.
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Training
In addition to account setup support included in the Basic Package, both web-based and onsite training
is available upon request by Bozeman, at additional cost, and including the following topics:
Basic Training Advanced Training
• Logging into ClearPoint
• Changing your password
• Accessing Support Forum
• Understanding reporting periods
• Understanding “edit’ vs. ‘update’
• Editing your scorecard
• Using the HTML editor
• Printing a page
• Exporting to Excel
• Generating PDF briefing books
• Managing user access rights
• Aligning department scorecards
• Configuring status indicators
• Configuring reporting periods
• Configuring custom fields
• Defining and using fiscal years
• Generating custom reports
• Developing custom grid views
• Configuring measure series
• Using calculated fields
All training will be jointly designed and administered by a Bozeman designated administrator and the
ClearPoint trainer to meet the specific needs of the Bozeman Users.
Web-based training can be purchased in ½ day increments. Onsite training has the benefit of having an
instructor in the classroom to answer questions and see challenges as they take place on participants’
screens. Travel expenses for onsite trainings are billed at cost. Web-based training is $1,000 for ½ day,
and onsite training can be purchased for $3,000 per day. Scorecard Setup
Bozeman is responsible for creating and maintaining its scorecards, including categories, objectives,
measures, initiatives, and action items. Bozeman is also responsible for meta data on these elements
including information such as descriptions, owner, data source, dates, and any custom fields.
As an optional service, Ascendant can assist with initial configuration, organizational alignment, data
entry, structuring Excel and text file data imports and designing custom dashboards. This service is billed
by the day and can be completed on-site or remotely.
Based on conversations held between ClearPoint staff and Bozeman prior to signing this agreement, we
are providing eight days of support to assist with the setup and configuration process. During the kick-
off call and initial planning, if new data or setup requirements are presented, we will notify Bozeman
that the assumptions have changed, and we will leverage these days to provide as much support to the
client in a jointly planned manner as the setup time allows.
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Setup Price Total Fees
System configuration and setup $1,500 per day $12,000.00
Data entry for historical data $1,500 per day NA
Setup Total $12,000.00
ClearPoint Data Loader
The ClearPoint Data Loader connects your on-premise data sources to ClearPoint. The Data Loader can
tap into any database that can be SQL queried as well as XLS and CSV files. Data can be uploaded to
ClearPoint on a scheduled basis including daily, weekly, monthly, and quarterly. Single Sign-on
Ascendant offers SSO using the SAML standard. Bozeman is free to use whatever federation server they
elect as long as it complies with the SAML 2.0 standard. For organizations that require it, Ascendant can
offer a cloud-based federation server, Ping Identity, to integrate a local directory with ClearPoint’s SAML
SSO endpoint. Ascendant will provide Bozeman with a PingOne account, which will enable the team to
obtain a SAML standard key and configure the connection with the desired active directory service, such
as ADFS or Azure AD. For troubleshooting, Ping Identity has a full support center, and the client will
work directly with Ping support. If additional Ascendant support is required, it will be at additional cost,
as Additional Training. Html Exports
Exporting to HTML allows all Enterprise Package clients to export information from ClearPoint into non-
password protected web pages. These pages can be linked to from your intranet site to share
information internally, or they can be linked to from your website to share information externally. API Access
ClearPoint has a documented REST API, which is leveraged in the Data Loader, Community Dashboard
Plugin and throughout the application itself. Bozeman will be able to use the API to GET, POST, PUT, and
DELETE information in ClearPoint. Ascendant will provide documentation showing all of the calls and
schema to implement the calls for Bozeman’s own applications and needs.
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Enterprise Package Cost Breakdown
The following table includes the proposed deliverables and the pricing for each item.
Deliverable Description Price
ClearPoint SaaS
Software User Licenses Base
Annual Rate
25 Licensed users
$24,900.00
Unlimited view-only users
Premium Support 3 named contacts
Enterprise Package features and
services including: • Onboarding
• Data Loader
• Automatic Initiative
Evaluations
• Rules-Based Permissions
• Single Sign-On
• IP Restrictions
• ClearPoint API
Included in the Enterprise
Package at no additional cost
Optional Features and Services
Additional Premium Support named
contacts
$3,300/contact
Additional Licensed Users $50/User/month
Update-only Users $10/User/month
Scorecard Setup $12,000.00
2 day remote training $4,000.00
Total $40,900.00
The features and capabilities of ClearPoint shall be in substantial conformance with the ClearPoint
Software Features, which are attached hereto as Exhibit B.
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Invoicing and Payment
The Enterprise Package Annual Cost will be due and payable immediately following mutual execution of
this Agreement. Setup/Configuration, Training, and travel expenses (if applicable) will be invoiced upon
completion. Prices are in US dollars. Bozeman has the option to add additional licenses at any time
using the prices quoted in this proposal. The price for additional licenses will be pro-rated to match the
expiration date of existing licenses. Discounts
Bozeman has the option to receive a discounted ClearPoint SaaS Software User Licenses Base Annual
Rate for signing a contract for multiple years. We offer 5% - 20% discounts for three to five-year
contracts. Additions made to the contract after the initial purchase are not guaranteed the same
discount.
Length of Initial Commitment Term Base Annual Rate Discounted Annual Rate
Less than 2 Years $24,900 $24,900
2+ Years (5% Discount) $24,900 $23,655
3+ Years (10% Discount) $24,900 $22,410
4+ Years (15% Discount) $24,900 $21,165
5+ Years (20% Discount) $24,900 $19,920
The applicable Discounted Annual Rate payable by Bozeman is determined by the length of the Initial
Commitment Term. The rates for other commitment terms are provided for informational and
comparison purposes only. The Base Annual Rate and Discounted Annual Rate are subject to the Terms
and Conditions, including automatic renewal and adjustments to the Base Annual Rate and Discounted
Annual Rate following the Initial Commitment Term. If the entire contract term is paid in advance, an
additional 5% off of the entire amount is offered as a discount. Changes and Renewal
Changes to this agreement may be made through standard written communications, including email,
and invoicing is an acceptable way to extend the agreement. The Base Annual Rate and Discounted
Annual Rate are subject to the Terms and Conditions, including automatic renewal and adjustments to
the Base Annual Rate and Discounted Annual Rate following the Initial Commitment Term. There will be
a $250 per month charge for renewing a cancelled account, and all missing months must be paid in full.
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Use of ClearPoint
Use of ClearPoint by individual Users is governed by the ClearPoint End User License Agreement (the
“EULA”). This agreement is in Exhibit A below. Acceptance
This Agreement, including the Terms and Conditions, and any Exhibits attached hereto, will be effective
when signed by both parties. In the event of any conflict between this Agreement, the Terms and
Conditions and Exhibits, the Agreement shall prevail.
By signing this Agreement, you represent to us that you have the proper authority to execute this
Agreement on behalf of Bozeman and incur the obligations described in this Agreement on behalf of
such company.
Signature:
Signature:
Name: Ted K Jackson
Ascendant Strategy
Management Group
Date Name: ______________
City of Bozeman, MT
Date
BILLING CONTACT FOR THE INVOICE
Contact Name: Jon Henderson, Strategic Services Director
Phone Number:
(406) 582-2250
Email (multiple if needed):
jon.henderson@bozeman.net
Address:
P.O. Box 1230 Bozeman, MT 59771
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6/23/2021 6/23/2021
Jeff Mihelich
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Exhibit A TERMS AND CONDITIONS
1. Privacy & Security; Disclosure
Ascendant's privacy and security policies may be viewed at http://www.ascendantsmg.com. Ascendant reserves the right to
modify its privacy and security policies in its reasonable discretion from time to time. Because the Service is a hosted, online
application, Ascendant occasionally may need to notify all users of the Service of important announcements regarding the
operation of the Service. If you become a paying customer of the Service, you agree that Ascendant can disclose the fact that
you are a paying customer and the edition of the Service that you are using.
2. License Grant & Restrictions
Ascendant hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal
business purposes, subject to this Agreement. All rights not expressly granted to you are reserved by Ascendant and its licensors.
You may not access the Service if you are a direct competitor of Ascendant, except with Ascendant's prior written consent. In
addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other
benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to
any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content;
(iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based
device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product
using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the
Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to
new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and
no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or
unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise
unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store
material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
(iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain
unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and
foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy,
international communications and the transmission of technical or personal data. You shall: (i) notify Ascendant immediately of
any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Ascendant
immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected
by you or your Users; and (iii) not impersonate another Ascendant user or provide false identity information to gain access to or
use the Service.
4. Account Information and Data
Ascendant does not own any data, information or material that you submit to the Service in the course of using the Service
("Customer Data"). You, not Ascendant, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability,
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appropriateness, and intellectual property ownership or right to use of all Customer Data, and Ascendant shall not be responsible
or liable for the deletion, correction, destruction, damage of Customer Data. In the event this Agreement is terminated (other
than by reason of your breach), Ascendant will make available to you a file of the Customer Data in a format agreed upon by the
parties within 30 days of termination if you so request at the time of termination.
5. Intellectual Property Ownership
Ascendant alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual
Property Rights, in and to the Ascendant Technology, the Content and the Service and any suggestions, ideas, enhancement
requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This
Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Ascendant Technology
or the Intellectual Property Rights owned by Ascendant. The Ascendant name, the Ascendant logo, and the product names
associated with the Service are trademarks of Ascendant or third parties, and no right or license is granted to use them.
6. –Intentionally left blank --
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee
or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the
User license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an
Order Form or through the Online Order Center. All payment obligations are non-cancelable and all amounts paid are
nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User
licenses are actively used. You must provide Ascendant with valid credit card or approved purchase order information as a
condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written
Order Form or using the Online Order Center. Added licenses will be subject to the following: (i) added licenses will be
coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will
be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in
full for that billing month. Ascendant reserves the right to modify its fees and charges and to introduce new charges at any time,
upon at least 30 days prior notice to you, which notice may be provided by e-mail.
8. Billing and Renewal
Ascendant (or its authorized Reseller, where applicable) charges and collects in advance for use of the Service. Ascendant (or its
authorized Reseller) will automatically renew and bill your credit card or issue an invoice to you each year on the subsequent
anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User
licenses times the license fee in effect during the prior term, unless Ascendant (or its authorized Reseller) has given you at least
30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will
be charged on an as-quoted basis. Ascendant's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and
you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based
solely on Ascendant's income.
You agree to provide Ascendant (or its authorized Reseller) with complete and accurate billing and contact information. This
information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized
billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact
information you have provided is false or fraudulent, Ascendant (or its authorized Reseller) reserves the right to terminate your
access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the
amount in question to be eligible to receive an adjustment or credit.
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9. Non-Payment and Suspension
In addition to any other rights granted to Ascendant herein, Ascendant (or its authorized Reseller, where applicable) reserves the
right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into
arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the
maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses
during any period of suspension. If you or Ascendant (or its authorized Reseller) initiates termination of this Agreement, you will
be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section
above. You agree that Ascendant (or its authorized Reseller) may charge such unpaid fees to your credit card or otherwise bill
you for such unpaid fees.
Ascendant (or its authorized Reseller) reserves the right to impose a reconnection fee in the event you are suspended and
thereafter request access to the Service. You agree and acknowledge that Ascendant has no obligation to retain Customer Data
and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
10. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. For all editions, the Initial Term will be as you elect during the online
subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this
Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial
Term is greater than one year) at Ascendant's then current fees. Either party may terminate this Agreement or reduce the number
of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least
five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided
through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event
this Agreement is terminated (other than by reason of your breach), Ascendant will make available to you a file in a format agreed
upon by the parties of the Customer Data within 30 days of termination if you so request at the time of termination. You agree
and acknowledge that Ascendant has no obligation to retain the Customer Data, and may delete such Customer Data, more than
30 days after termination.
11. Termination for Cause
Any breach of your payment obligations or unauthorized use of CLEARPOINT or Service will be deemed a material breach of this
Agreement. Ascendant, in its sole discretion, may terminate your password, account or use of the Service if you breach or
otherwise fail to comply with this Agreement. In addition, Ascendant may terminate a free account at any time in its sole
discretion. You agree and acknowledge that Ascendant has no obligation to retain the Customer Data, and may delete such
Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and
such breach has not been cured within 30 days of notice of such breach.
In the event that either (a) you terminate this Agreement prior to expiration of the Initial Term, or (b) Ascendant terminates this
Agreement prior to expiration of the Initial Term pursuant to Sections 9, 10 or and/or 11 of these Terms and Conditions,
Ascendant shall be entitled, in addition to all other remedies available to Ascendant, for the present value of any difference
between the Base Annual Rate and Discounted Annual Rate from the date of termination until the end of the Initial Term, pro-
rated for any partial years.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Ascendant represents
and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the
provision thereof and that the Service will perform substantially in accordance with the online Ascendant help documentation
under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any
false information to gain access to the Service and that your billing information is correct.
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13. Mutual Indemnification
You shall indemnify and hold Ascendant, its licensors, its authorized Resellers, and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim
alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would
constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users
of this Agreement, provided in any such case that Ascendant (a) gives written notice of the claim promptly to you; (b) gives you
sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you
unconditionally release Ascendant of all liability and such settlement does not affect Ascendant's business or Service); (c) provides
to you all available information and assistance; and (d) has not compromised or settled such claim.
Ascendant shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees,
attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including
attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a
U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation
by Ascendant of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Ascendant; provided
that you (a) promptly give written notice of the claim to Ascendant; (b) give Ascendant sole control of the defense and settlement
of the claim (provided that Ascendant may not settle or defend any claim unless it unconditionally releases you of all liability); (c)
provide to Ascendant all available information and assistance; and (d) have not compromised or settled such claim (iv) a claim
alleging breach, loss, negligent, intentional or reckless storage of Customer Data. Ascendant shall have no indemnification
obligation, and you shall indemnify Ascendant pursuant to this Agreement, for claims arising from any infringement arising from
the combination of the Service with any of your products, service, hardware or business process(s).
14. Disclaimer of Warranties
ASCENDANT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS,
QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ASCENDANT
AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
(B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR
(F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ASCENDANT
AND ITS LICENSORS.
15. Internet Delays
ASCENDANT'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE
INTERNET AND ELECTRONIC COMMUNICATIONS. ASCENDANT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR
OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
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IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED FIVE TIMES THE TOTAL CONTRACT AMOUNT. IN NO EVENT
SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY,
INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS, REVENUE, PROFITS, USE OR OTHER
ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO
THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY
INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
17. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental,
consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
18. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered
by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S.
agencies and the export control regulations of Switzerland and the European Union. The user of this site ("User") acknowledges
and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred
or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union
maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity
on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial
Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change
without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or
resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union
export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration
Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Ascendant and its licensors make no representation that the Service is appropriate or available for use in other locations. If you
use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible
for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any
diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is
prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear
activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or
appropriate European body for such purposes.
Ascendant represents that your data will be exclusively stored in the United States.
19. Notice
Ascendant may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in
Ascendant's account information, or by written communication sent by first class mail or pre-paid post to your address on record
in Ascendant's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing
or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Ascendant
(such notice shall be deemed given when received by Ascendant) at any time by any of the following: electronic mail to the
Ascendant representative e-mail address managing customer’s account information: tjackson@clearpointstrategy.com; letter
sent by confirmed facsimile to Ascendant at the following fax number: (617) 848-2941; letter delivered by nationally recognized
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overnight delivery service or first class postage prepaid mail to Ascendant at the following addresses: Ascendant Strategy
Management Group, 75 Arlington Street, 5th Floor, Boston, MA 02116, addressed to the attention of: Chief Financial Officer.
20. Modification to Terms
Ascendant reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any
time, effective upon posting and noticing of an updated version of this Agreement on the Service. You are responsible for regularly
reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Ascendant but may be assigned without your
consent by Ascendant to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any assignee of
Ascendant is bound to this Agreement for the remainder of the term. Any purported assignment in violation of this section shall
be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Ascendant directly
or indirectly owning or controlling 50% or more of you shall entitle Ascendant to terminate this Agreement for cause immediately
upon written notice.
22. General
This Agreement shall be governed by Montana law and controlling United States federal law. No text or information set forth on
any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms
and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or
unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership,
employment, or agency relationship exists between you and Ascendant as a result of this agreement or use of the Service. The
failure of Ascendant to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision
unless acknowledged and agreed to by Ascendant in writing. This Agreement, together with any applicable Order Form, comprises
the entire agreement between you and Ascendant and supersedes all prior or contemporaneous negotiations, discussions or
agreements, whether written or oral, between the parties regarding the subject matter contained herein.
23. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms
of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the
Ascendant website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may
be updated by Ascendant from time to time in its sole discretion; "Content" means the audio and visual information, documents,
software, products and services contained or made available to you in the course of using the Service; "Customer Data" means
any data, information or material provided or submitted by you to the Service in the course of using the Service; "Effective Date"
means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after
this Agreement is displayed or the date you begin using the Service; "Initial Term" means the contract term, beginning on the
contract start date and ending on the contract end date, specified on the applicable Order Form; "Intellectual Property Rights"
means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names,
domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights,
derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Administrator(s)" means those
Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written
Order Forms and to create User accounts and otherwise administer your use of the Service; "License Term(s)" means the period(s)
during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means
the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form,
specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period,
and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this
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Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms
of this Agreement shall prevail); "Online Order Center" means Ascendant's online application that allows the License
Administrator designated by you to, among other things, add additional Users to the Service; "Ascendant" means collectively
Ascendant Strategy Management Group, LLC, a Massachusetts corporation, having its principal place of business at 75 Arlington
Street, 5th Floor, Boston, MA 02116. "Ascendant Technology" means all of Ascendant's proprietary technology (including
software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or
intangible technical material or information) made available to you by Ascendant in providing the Service; "Service(s)" means the
specific edition of Ascendant's online customer relationship management, billing, data analysis, or other corporate ERP services
identified during the ordering process, developed, operated, and maintained by Ascendant, accessible via
http://www.AscendantSMG.com or another designated web site or IP address, or ancillary online or offline products and services
provided to you by Ascendant, to which you are being granted access under this Agreement, including the Ascendant Technology
and the Content; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use
the Service and have been supplied user identifications and passwords by you (or by Ascendant at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to
info@ascendantsmg.com.
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EXHIBIT B: CLEARPOINT SOFTWARE FEATURES
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