HomeMy WebLinkAbout21- Professional Services Agreement - Bang the Table - Community Engagement Platform
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NONDISCRIMINATION AND EQUAL PAY AFFIRMATION Bang the Table (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, Bang the Table (name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. Brendan Stierman, Contracts Manager (Name and title of person authorized to sign on behalf of submitter)
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of November, 2021 (“Effective Date”),
by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street,
Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to
as “City,” and, Bang the Table, hereinafter referred to as “Contractor.” The City and Contractor may be
referred to individually as “Party” and collectively as “Parties.”
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 : City agrees to enter this Agreement with Contractor to perform for City services
described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof.
The Agreement consists of this Professional Services Agreement, Exhibit A (Scope of Services), and the
additional terms set forth in Exhibit A-1 (Master Terms and Conditions), and Exhibit B (Cloud Service
Questions). Any conflict between these documents will be resolved in favor of the Professional Services
Agreement, then Exhibit A and Exhibit A-1, then Exhibit B.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire
on the 30th day of November, 2022, unless earlier terminated in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the
Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be
bound by its responses to the City’s Cloud Services Questions, attached to this Agreement as Exhibit B and
made part of this Agreement.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services.
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 City to enter into this Agreement, Contractor
makes the following representations:
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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, and regulations
that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability to perform
the services required by this Agreement; that it will perform the 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. EXCEPT FOR THE FOREGOING WARRANTIES, THE PRODUCTS AND SERVICES
ARE PROVIDED “AS IS” AND CONTRACTOR DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTIBILITY,
FITNESS FOR A PARTICULAR PURPOSE, COURSE OF PERFORMANCE OR USAGE IN TRADE.
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 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, Montana Code Annotated (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 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 City.
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
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Section as the City) from and against any and all claims, demands, actions, fees and costs (including
reasonable 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 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: third party claims
alleging personal injury, injury to tangible personal or real property, or wrongful death arising from (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 third-party claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional
misconduct of the Contractor or Contractor’s agents or employees.
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
The City will provide reasonable cooperation and assistance to Contractor in the defense and
settlement of the claim, and will provide prompt written notice to Contractor of any claim to which this
indemnity relates.
Should the City 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 City 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 City for a claim(s) or any portion(s)
thereof.
In the event of an action filed against the 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.
Contractor also waives any and all claims and recourse against the City, 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 [City’s] 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
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Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically
assumed by the Contractor in this Section. Contractor’s liability under this Agreement is not modified or
limited by the amounts or applicability of any insurance required by this section.
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;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City 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. Contractor shall notify City
within thirty (30) 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.
The City will be provided certificates of insurance reflecting the limitations above 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 thirty (30) days written notice, terminate this Agreement and
the Contractor’s right to proceed with all or any part of the work should Contractor fail to cure the
breach within the notice period (“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.
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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, the City may terminate this
Agreement by no less than ninety (90) days 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 cease performance under this Agreement upon
the effective date of termination 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 or immediately in
progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled to
payment for those services Contractor actually rendered on or before the receipt of the Notice of
Termination for City’s Convenience, and any pre-paid fees will not be refunded.
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, claiming
party’s damages shall be limited to direct or actual damages and Contractor hereby expressly
waives any right to claim or recover incidental, indirect, 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.
c) Contractor will not be liable to the City for any loss of use, interruption of business
or any indirect, special, incidental, or consequential damages of any kind (including lost profits),
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regardless of the form of action and whether in contract, tort (including negligence) strict product
liability or otherwise, even if Contractor has been advised of the possibility of such damages. In
any event, except for Contractor’s indemnification obligations set forth in this Agreement,
Contractor’s maximum liability for any claim arising in connection with this Agreement (in tort,
contract, or otherwise) will not exceed the amount of fees paid to Contractor in the six (6) months
preceding the claim.
11. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Melody Mileur 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 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 designated by the
City in writing and may receive approvals or authorization from such persons.
The City is responsible for ensuring the compliance with these terms of each of the City’s authorized users (“Administrators”) and is liable for all activity under the City’s Administrator accounts. The City shall use best efforts to prevent unauthorized access to, or use of, the Service, and will notify BTT promptly of any unauthorized use of any password or account or any other known or suspected breach of security. The City will not attempt to or use the City’s access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein. The City shall not allow Administrator credentials to be shared. You must ensure that we receive, in a timely manner, all information we need to enable us to supply the Services.
b. Contractor’s Representative: The Contractor’s Representative for the purpose
of this Agreement shall be contracts@granicus.com and Emily Alonzi 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.
c. Notices : All notices required by this Agreement shall be in writing and
shall be provided to the Representatives named in this Section, with a copy to Granicus LLC. Legal
Department at contracts@granicus.com. Notices shall be deemed given when delivered, if
delivered by courier to Party’s address shown above during normal business hours of the recipient;
or when sent, if sent by email or fax (with a successful transmission report) to the email address or
fax number provided by the Party’s Representative; or on the fifth business day following mailing,
if mailed by ordinary mail to the address shown above, postage prepaid.
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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.
The City acknowledges and agrees that: (a) the City shall abide by all applicable laws and
regulations in connection with the City’s business operations and the use of the Service, Website, and
Website Visitor information, and (b) the City owns or has obtained all rights, consents, permissions, or
licenses necessary to allow the Service access to, or possession, manipulation, processing, or use of the
City’s Data and any data from Website Visitors; and (c) the City shall ensure that its collection, use, and
sharing of information (including data from Website Visitors) is in accordance with applicable law, and its
privacy policy; and (d) the City owns or has sufficient rights to any City content displayed on the Website.
Should the City wish to change the terms of use on the Website the City may do so upon written notice to
Contractor but (as these terms are between Contractor and the website visitors) in so doing the City accepts
all responsibility for any content provided by users and Website Visitors.
14. Nondiscrimination and Equal Pay: 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 be subject to and comply with Title VI of the Civil
Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act).
Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been
found guilty of within 60 days of such finding for violations occurring during the term of this Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
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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 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 its
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 the 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 request copies of 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 related to this Agreement for public dissemination without prior approval of the
City.
18. Non-Waiver: A waiver by either party of 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 including the City Attorney’s Office staff.
20. Taxes: Contractor is obligated to pay all taxes related to the income of Contractor and
make all appropriate employee withholdings. The City is responsible for the payment of any sales, use, or
other taxes applicable to the Services provided hereunder.
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21. Dispute Resolution:
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. Third-Party Actions; Obligations and Liabilities. If any action is instituted by a third party
against the Customer based upon a claim that the Service, as provided, infringes a copyright or trademark, then
BTT will defend such action at its own expense on behalf of the Customer and will pay all damages attributable
to such claim which are finally awarded against the Customer or paid in settlement of such claim. BTT may, at
its option and expense, and in addition to defending the Customer as set forth in the previous sentence, as the
Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Service;
(b) replace or modify the Service so that it is no longer infringing but continues to provide comparable
functionality; or (c) terminate this Agreement and the Customer’s access to the Service and refund any amounts
previously paid for the Service attributable to the remainder of the then-current term of this Agreement. BTT will
have no liability to the Customer for any infringement action that arises out of a breach of the terms and conditions
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of this Agreement by the Customer or of the use of the Service (i) after it has been modified by the Customer or a
third party without BTT’s prior written consent, or (ii) in combination with any other service, equipment, software
or process not provided by BTT where the combination is the basis for the infringing activity.
29. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
30. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein 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 to the date of this
Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by
reference.
31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement
electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter
18, Part 1, MCA.
32. 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 three
years.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA BANG THE TABLE, NORTH AMERICA
By______________________________ By________________________________
Jeff Mihelich, City Manager Brendan Stierman, Contracts Manager
Print
Name: ___________________________
Print
Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Brendan Stierman
Contracts Manager
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Exhibit A- Scope of Services
Name of “Customer” City of Bozeman Customer Address 121 N Rouse Ave, Bozeman, Montana 59715 Customer Phone (406) 582-2322 Primary Contact Melody Mileur Contract Contact Melody Mileur mmileur@bozeman.net Term Effective date and will expire on the 30th day of November, 2022 unless earlier terminated in accordance with this agreement. Service Details See Bang the Table’s proposal and/or prospectus for details. Total Fees $19,000 excluding tax
EngagementHQ Package Annual License EngagementIQ Package Standard Onboarding + Essentials Support Additional Services & Integrations N/A
Integrations require the cooperation of third parties. We enter into a contract
to provide integrations on the basis of ‘best endeavors’ if, for reasons beyond our control, an integration ceases to work we will refund pro rata the integration portion of the contract. This has no impact on the software package and service components of the contract.
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EXHIBIT A-1: Master Terms and Conditions
1 Access Grant & Restrictions
1.1 Subscription to the Service. Subject to the terms of this Agreement, BTT hereby grants to the Customer a limited, non-sublicensable, non-transferable, non-exclusive subscription during the term of the Agreement for the Customer to access and use the specific services and feature sets of the Service specified in the applicable Scope of Services by up to the number of users identified in that Scope of Services, and solely for the Customer’s business purposes as outlined in the Scope of Services and these Terms. BTT and its licensors reserve all rights not expressly granted to the Customer in this Agreement. BTT upgrades its software on a continuous basis and, while we strive to minimize the impact on the customer of any upgrades (our policy is not to change the public facing appearance of your site without your permission), BTT reserves the right to make necessary changes or modifications to the Service.
2 Support; Hosting. BTT will host the Website as set forth in the Service Agreement and applicable Proposal document. BTT will, where practicable, answer questions and help troubleshoot. To the extent set forth on the Service Agreement, BTT will also provide hosting and support services as set forth in Proposal, attached hereto, which is hereby incorporated hereto.
3 Disclaimer of Warranties. Reserved.
4 Ownership. BTT and its licensors own all rights, title and interest, including all related intellectual property rights, in and to the Services, BTT content, platform, and technology, including all enhancements, modifications or derivative works to the foregoing, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Services. The BTT name, the BTT logo, and the product names associated with the Services are trademarks of BTT or third parties. All rights not expressly granted are hereby retained by BTT. BTT does not own the information submitted by Customer or its Website Visitors (the “Customer’s Data”). The Customer retains all right, title and interest in and to the Customer’s Data. The Customer grants to BTT all necessary licenses and rights in and to the Customer’s Data as necessary for BTT to provide Services to the Customer. The Customer is responsible for the Customer’s Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any intellectual property rights ownership or right to use the foregoing. BTT reserves the right to de-identify or aggregate (or both) any data (including Customer Data), information or content obtained by BTT relating to Customer, its Administrator’s, or Website Visitors use or receipt of Services, including without limitation information about how the Services are used by such users (“De-identified Data”). BTT may use De-identified Data for product optimization and development, benchmarking, and internal research but will not share any information that identifies Customer or any Website Visitor by name with any third party, except as strictly necessary to provide the Services.
5 Limitation of Liability. Reserved.
6 Confidentiality. Neither party will use the confidential information of the other party for any purpose other than exercising its rights or obligations under this Agreement, and will disclose the confidential information only to those of its employees or contractors who have a need to know for purposes of the Agreement. Notwithstanding, either party may disclose the other party’s confidential information as required by law so long as, if permitted by law, such party notifies the disclosing party prior to disclosure and uses reasonable efforts to limit disclosure to only what is required by law.
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EXHIBIT B
Cloud Services Questions
1) Service levels: What level of service should we expect? What is the City’s
recourse for excessive downtime? Refund of percentage of monthly fee?
• We guarantee 99.75% availability and our up-times have historically remained above
“three 9s” (99.9%). The platform receives regular and continuous updates using our SaaS
DLC which features zero-downtime and agile deployment processes. We have robust
automated testing, build process, and application monitoring in place to ensure high-
quality and successful deployments of regular features and functionality. We provide at
least two weeks of notice in case of planned outages, but we typically only need this for
bigger architecture changes.
• While we do not provide compensation for losses, we have appropriate insurance
policies in place covering our services.
• Notifications of any service disruption are provided via our in-app intercom advice and
by email.
• Any unplanned outage will be investigated thoroughly with root cause analysis and a full
report provided with remedial actions.
• We provide at least two weeks of notice when we need to interrupt the service for
maintenance. This is a very infrequent occurrence as our architecture allows us to carry
out maintenance with minimal/no disruption to service.
• Bang the Table provide 24 hour support Monday to Friday through our Client Experience
Team. They can be reached via chat function within the EngagementHQ CMS or via
email to support@engagementhq.com.
• We guarantee of a first response via chat within 10 minutes and via email within 2 hours.
When faults are notified the following minimum service standards are in place:
• For issues critical to the core functions of the site (i.e. website is unavailable), a response
will be immediate and a fix will be implemented within four hours.
• For minor critical issues to the core functions of the site (i.e. part of the website is
unavailable or is not operating efficiently for more than 4 hours), a response will be within
2 hours and a fix will be implemented within 1 business day.
• For non-critical issues to the core functions of the site (i.e. part of the website is
unavailable or is not operating efficiently with only a material impact on the promotion
of Your engagement projects), a response time is not mandated but a fix will be
implemented within 2 business days.
• For minor non-critical issues to the core functions of the site (i.e. a problem which has little
or no impact to the efficiency of users), a response time is not mandated but a fix will be
implemented as soon as practical but no later than 10 business days.
2) Data ownership: Who owns the data we provide and what can be done
with the data?
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• All of the data created on our technology platform belongs to our clients and their communities, and as such is governed by our clients’ policies. Our role is to process the
data in accordance with our service agreements with our clients. Only client site
administrator has access to the data.
• For support or help, the client site administrator can toggle a setting within the EHQ
application to enable our support team to access your site data. Our support teams in
India and Australia can then access the required information, but ONLY when this toggle
is enabled, to answer any specific questions you may have around it. This access will be only at the request of the client site administrator and staff authorized for access are
trained on data subject's rights. This access is limited to key personnel involved in
maintaining our services and support and independent third-party background
verification is performed for them. We have strict data access rules in place with detailed
logging to prevent theft and misuse.
• Data is available for client admins to download and retain in Microsoft Word/Excel
document, PDF format and also via our API’s. 3) Data security: How secure is our data and how is it being kept secure?
• EngagementHQ provides role-based access controls with unique usernames and one-way password encryption to help clients manage their own logins.
• We have automated monitoring and alerting systems in place for unusual usage
patterns.
• Logging and alerting systems are in place, which help identify potential malicious activity and can be stopped via firewalls on AWS.
• Physical and environmental controls protect data and services from unauthorized
intrusions and interruptions, while technology and policy‐based security measures
defend against unauthorized disclosure and manipulation.
• Strict Content Security Policies against the likes of inline scripting, cross frame scripting
etc. are in place at the front end to ensure protection of backend systems and data from front end attacks. File uploads are scanned and restricted based on file types to
prevent upload of malware.
• The AWS network uses proprietary mitigation techniques providing significant protection against traditional security issues such as Distributed Denial Of Service (DDoS) Attacks,
Man in the Middle (MITM) Attacks, IP Spoofing, Port Scanning, etc.
• We use the AWS logs for our monitoring. We use tools like AWS Cloud Watch and Data
Dog for analysis of traffic activity and to provide us with alerts. Based on these alerts we use the AWS provided ACL to block offending IP addresses. It is reviewed on an ongoing
basis as part of the monitoring activity.
• The application is continuously monitored by incorporating security scanners into our CI
pipeline. Issues and vulnerabilities are patched by our internal development teams as
they come to light.
• The operating systems and databases running our servers are continually monitored and
patched with the latest security fixes.
• We work with security experts to ensure our platform meets the highest standards of web
application security. Quarterly VAPT tests are undertaken to scan for potential
vulnerabilities and to simulate a variety of attacks. In addition to this, we frequently have
clients who carry out their own security tests on their websites hosted on our platform. We
have regular management reviews of the operational risk register. The Risk policy is also
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reviewed whenever there is a change in the business or as determined in the management review meeting.
a. If this is a multi-tenant environment on the same hardware how is
our data kept separate and secure from other customers, including
any PII (Personally Identifiable Information) that may be gathered?
• All EHQ sites are hosted on Amazon Web Services (AWS) infrastructure, and we make use
of the Amazon Virtual Private Cloud (VPC) to create an isolated eco-system.
• We have strong logical controls in place to quarantine data belonging to each
organization within our multi-tenanted application architecture. Each client would have
one or more sites and data is segmented by this unique site. Multiple levels of scoping of
access is in place to prevent any inadvertent or intentional attack. Further regular VAPT
testing also checks for any potential areas that could be exploited.
b. If PII is gathered, is it encrypted in transit and at rest?
• Data at rest is encrypted and stored using 256-bit AES encryption. Backups are also
encrypted.
• Data in transit is secured via SSL/TLS connections. Basic SSL Certificates are provided
as part of our solution. We have TLS 1.2 enabled for all HTTPS connections.
• We provide an EV SSL certificate as an optional extra. The SSL certificate we provide
uses SHA256withRSA signature algorithm & RSA 2048 bit encryption.
c. If credit card transactions are occurring is your system fully PCI
compliant?
• N/A - No commercial transactions occur in EHQ.
4) Data integrity: What do you do as a vendor to ensure our data maintains
its integrity?
• EHQ is hosted on Amazon Web Services (AWS) with data is stored within a mySQL
database on AWS RDS. All data stored on AWS RDS is encrypted using AWS provided
– AES-256-GCM encryption standard.
• EngagementHQ has a secure and verified self-user registration process incorporating
an authentication link sent via email at the completion of the registration process.
The verifiable sign up ensures data integrity by precluding capacity to duplicate or create more than one account from any single verified email address.
• Only client site administrator has access to the data. We have strict data access rules
in place with detailed logging to prevent theft and misuse. Access to client data will
be only at the request of the client and staff authorized for access are trained on data subject's rights. This access is limited to key personnel involved in maintaining our
services and support and independent third party background verification is
performed for all staff.
• EngagementHQ access control policies are based on the principles of 'least privilege'
and 'segregation of duties'.
• We do not provide any Generic / Shared Accounts.
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• The client administrators will assume full control over provisioning of user access.
• EHQ offers single sign-on integration (SSO) for any Identity Provider (IdP) that supports
SAML, to enable centralized access control.
5) We require data centers to be located in the United States: What country
will our data be located in?
• Data is stored in the US
6) Responding to legal demands to disclose data: What is your process
when someone subpoenas or requests our data from you as a vendor?
• Any legal demands for data are routed through the Client. Any request for
information should come from the relevant Client administrators. The Client admins
with the right privileges can access the logs from the application.
• All administrator activities on the site are logged and timestamped. These are
accessible via the EngagementHQ Audit Trail feature, which provides an audit log of
activity with filters to help drill down into areas of interest – by date, project, and tool.
A search function also helps sort and parse activity.
• An immutable rolling audit log records all activity in the site, with filters to help drill
down into different areas of EHQ – by date, project, and tool. A search function also
helps sort and parse activity by admin/user or another identifying factor. Audit trails
and logs are retained for one year. We have processes in place to ensure logs and
audit trails are tamper-resistant.
7) Reporting: What is your protocol for data breaches?
• Bang the Table has a published procedure for handling security incidents that
outlines an incident response plan along with notification guidelines.
• All security incidents are immediately escalated to the CIO and we will provide
notification of data breaches or security incidents within 72 hours of discovery by
either phone and/or email.
8) Disaster recovery: What protections/protocols do you have in place to
mitigate disasters?
• We are hosted on Amazon Web Services (AWS) infrastructure and leverage their high
availability infrastructure. Our application instance is hosted with an auto recovery instance for the application server. This ensures that even in case of any hardware failure,
the instance is capable of recovering itself automatically and instantly without manual
intervention. Data in stored within a mySQL database on AWS RDS. Amazon RDS has
multiple features that enhance reliability for critical production databases, including
automated backups, DB snapshots, automatic host replacement, and Multi-AZ
deployments. Within each AWS region AWS provides availability zones (AZs) with a
choice of 2 or more zones. Each AZ is a fully isolated partition of the AWS infrastructure
with data centers that have redundant power, networking and connectivity, which are
independently powered and cooled and have their own network and security
architectures. AZs are insulated from the failures of other zones in the group, so by
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replicating our database across multiple AZs, we significantly reduce the chance of total outage or failure.
• Our Disaster Recovery plan(both application and database) is tested annually or when
there is a major change in our environment, either to our infrastructure or application. Lessons learned from these tests are incorporated back into the plan. Based on the DR
testing we guarantee a :
• Recovery Time Objective (RTO)- worst case time to restore service in a disaster as 6 hours.
• Recovery Point Objective (RPO) - worst case time to restore data loss in a disaster as 24 hours.
• Both application and database recovery is automatic with transactional integrity, near
zero data loss and no manual intervention required.
• We take a complete server snapshot daily, which is maintained for 35 days.
9) Business continuity: If you decide to bring your business to an end what
happens to our data?
• We purge all this data permanently within six months of the end of the client contract.
Data is available for clients to download and retain as a document download in PDF,
Excel and also via API till the end of the contract term.
• Bang the Table is committed to the secure and safe disposal of the data in accordance with our contractual and legal obligations and we do so in an ethical and compliant
manner. We use the tools provided by our AWS infrastructure to erase data in a way that
it cannot be reconstructed. We confirm that our approach and procedures comply with
the laws and provisions made in the General Data Protection Regulation (GDPR) and
that staff are trained and advised accordingly on the procedures and controls in place.
10)Termination rights and consequences: What is your termination policy
both for you as a vendor and us as a customer?
• All of the data created on our EngagementHQ technology platform belongs to our
clients and their communities, and as such is governed by our clients’ policies. The role of
our platform is to process the data in accordance with the service agreements with our clients.
• The client data on our systems will be retained for the term of the contract with the client.
All access and modification to this information is logged and retained for this duration (or
as per the client contract).
• We purge all this data permanently within six months of the end of the client contract.
Data is available for clients to download and retain as a document download in PDF,
Excel and also via API till the end of the contract term.
• Incase of client confirmation that their EnagagementHQ sites is no longer required and
can be de-commissioned, on the agreed date, the site and all its contents will be
removed permanently. The change will be effective immediately and all information
removed permanently from our systems. Database backups retained for disaster
recovery purposes will also be permanently erased within 6 months of contract
termination.
• Bang the Table is committed to the secure and safe disposal of this information in
accordance with our contractual and legal obligations and we do so in an ethical and
compliant manner. We use the tools provided by our AWS infrastructure to erase data in
a way that it cannot be reconstructed. We confirm that our approach and procedures
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comply with the laws and provisions made in the General Data Protection Regulation (GDPR) and that staff are trained and advised accordingly on the procedures and
controls in place.
11)Exit: If we exit our relationship what format can we get our data in and
what assistance will you give us in transferring our data to us in a usable
format?
• Data is available for client admins to download and retain as a document download in
PDF, Excel and also via API.
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