HomeMy WebLinkAboutGuidespark, Inc. - Master Subscription Agreement •
GUIDESPARK, INC.
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement ( "MSA ") is between City of Yakima, ( "Company" or "the City") and GuideSpark, Inc.
( "GuideSpark "). The MSA consists of the terms and conditions set forth below and any attachments or exhibits identified below.
This MSA and any Order Forms or Statements of Work (as defined below) that reference this MSA constitute the entire agreement
between the parties ( "Agreement").
This Agreement permits Company to purchase a subscription to software -as -a- service products and related services from
GuideSpark pursuant to order forms executed by GuideSpark and Company referencing this Agreement, substantially in the form
of Exhibit A ( "Order Form(s) "). This MSA and any attachments or exhibits identified below will govern purchases made by
Company that reference this Agreement or this MSA.
ATTACHMENTS
1. Ex. A: Form of Order Form
2. Ex. B: Service Level Agreement
3. Ex. C: Support and Development Policy
This Master Subscription Agreement has been accepted and agreed to by the Authorized Representative of each party on the
date stated below each signature:
City of Yakima GUIDESPARK,�'L .
129 N 2nd St 1350 Wi . gal, Rd. ' • e 201
Yakima 9 901 Menlo P� . ` •
By: y:
Name: lb C(/1 (�1 - -� Name: Christopher J. Krook
Title: t. J Title: VP of Finance and Administration
BB U 11
Date: �/} �� l 1( Date: G / e-e 2_0)
1. Definitions. Company use of the Professional Services or Software Service,
"Affiliate" means an entity that, directly or indirectly, owns or including without limitation all data, information or other materials
controls, is owned or is controlled by or is under common that GuideSpark obtains from third parties and provides or
ownership or control with Company. As used in this definition, otherwise makes available to Company hereunder.
"control" means the power to direct the management or affairs of
an entity, and "ownership" means the beneficial ownership of 50% "Contractor" means any third party employed or retained by
or more of the voting equity securities or other equivalent voting Company to perform services on behalf of Company.
interests of the entity.
"Documentation" means any user manuals, reference guides,
"Authorized Representative" means an individual who has the usage instructions and other descriptions related to the Software
legal authority to bind the entity entering into this Agreement, Service provided by GuideSpark to Company or to any other users
including the authority to bind any Affiliates that purchase a of the Software Service from time to time to explain the intended
Subscription pursuant to an Order Form under this Agreement. functionality of the Software Service and to assist in the use of the
Software Service.
"Company Data" means any data of any type that is provided by
Company to GuideSpark, including under Section 5.2. "Intellectual Property Rights" means any and all right, title and
interest in and to any and all trade secrets, patents, copyrights,
"Compliance" means (i) with respect to the Software Service, that service marks, trademarks, know -how, trade names, rights in trade
the Software Service is performing in substantial conformance with dress and packaging, moral rights, rights of privacy, publicity and
any criteria specified in the applicable Order Form, and (ii) with similar rights of any type, including any applications, continuations
respect to Professional Services deliverables ( "Deliverables "), that or other registrations with respect to any of the foregoing, under
the Deliverables substantially conform to any Acceptance criteria the laws or regulations of any foreign or domestic governmental,
specified in the applicable Statement of Work ( "SOW "). regulatory or judicial authority.
"Content' means data, including audio, video, multimedia, data, "Professional Services" means the professional services and
text, images, and documents, that is provided by GuideSpark to Training provided by GuideSpark as set forth in the applicable
Company or accessed or collected by Company in connection with Order Form or SOW.
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
law prohibits or restricts reverse engineering restrictions); (iii), sell,
"Software Service" means the online software -as -a- service resell, rent, lease, or distribute the Software Service; (iv) use the
product(s) described in the Order Form, including any associated Software Service (or any portion thereof) for time sharing
offline components and all related Documentation. purposes; (v) copy the Software Service or any part, function,
feature or user interface thereof; (vi) frame or mirror any part of the
"Subscription" means a subscription to the Software Service and Software Service or Content, other than framing on Company's
Support. own intranet or otherwise for your own internal business purposes
as permitted by this Agreement; (vii) access any Software Service
"Subscription Term" means the term of a Subscription as set forth or Content to build a competitive product or service; (viii) create
in the applicable Order Form. any derivative works based on the Software Service or Content, or
(ix) remove any copyright or proprietary notices contained in the
"Support" means the technical support services provided by Software Service.
GuideSpark as further described in Exhibit B (Service Level
Agreement) and Exhibit C (Support and Development Policy). 2.7 GuideSpark Service Providers. Company agrees and
acknowledges that GuideSpark engages certain service provider
"Training" means the training services provided by GuideSpark as firms, currently in the United States, Canada, United Kingdom,
set forth in the applicable Order Form. Japan, Mexico, and Costa Rica, to assist in the support and
development of the Software Service. Company Data and User
"User means an individual who is authorized by Company to use Data reside only in the United States on approved and secured
the Software Service. Users may include but are not limited to systems. No Company Confidential Information will be stored,
Company employees, consultants, Contractors and agents, and transmitted, or accessed, at, in, or through a site located outside
specific individuals authorized by Company. of the United States without the advance written consent of
Company.
"User Data" means any data of any type that is provided by a User
to GuideSpark in connection with use of the Software Service. 3. License and Ownership of Intellectual Property.
2. Software Service. 3.1 GuideSpark License. GuideSpark hereby grants
Company a worldwide, non - exclusive, non - transferable (except as
2.1 Provision of Software Service. Users may access and provided for in Section 13.1 (Assignment)) license, for the relevant
use the Software Service for Company's internal business Subscription Term, to use any Content provided by GuideSpark to
purposes. Company for Company's internal business purposes subject to the
restrictions set forth in this Section.
2.2. Orders. Each Order Form will be substantially in the form
attached as Exhibit A and will incorporate by reference the 3.2 Company License. Company hereby grants GuideSpark
provisions of this Agreement as though those provisions were set a worldwide, royalty -free, non - exclusive, non - transferable (except
forth therein in their entirety. as provided for in Section 13.1 (Assignment)) license for the
relevant Subscription Term, to use any Company Data and User
2.3 Company Responsibilities. Company shall (i) be Data for the purposes of creating and providing the Professional
responsible for Users' compliance with the GuideSpark Terms of Services and Software Service.
Use (available at http: / /app.quidespark.com /tou) and this
Agreement, (ii) use commercially reasonable efforts to prevent 3.3 Ownership of Intellectual Property. GuideSpark and its
unauthorized access to or use of the Software Service, and notify licensors will retain ownership of all Intellectual Property Rights in
GuideSpark promptly of any such unauthorized access or use, and the Professional Services and Software Service. Notwithstanding
(iii) use the Software Service only in accordance with any the foregoing, as between GuideSpark and Company, Company
Documentation provided by GuideSpark and applicable laws and owns all right, title and interest (including all Intellectual Property
government regulations. Rights) in and to any Company software, Company systems,
Company Data, Company Confidential Information, Company
2.4. Login Information. If Company requests that GuideSpark logos or other Company materials provided by Company to
create a login ID and password for Users to access the Software GuideSpark or otherwise accessed by GuideSpark in connection
Service ( "Login Information "), Company is responsible for all with this Agreement. GuideSpark will also own all right, title and
activity occurring under Users' Login Information, and shall keep interest in and to any Content that GuideSpark custom creates,
all Login Information confidential and not share Login Information develops or otherwise delivers to Company in connection with the
with third parties. GuideSpark has no obligation or responsibility Professional Services or Software Service hereunder, and hereby
with regard to use, distribution, disclosure, or management of provides Company with a worldwide, non - exclusive, non -
Login Information. transferable license to use those customized portions of the
Content for Company's internal business use for the relevant
2.5 Service Updates. GuideSpark (a) may, from time to time, Subscription Term.
modify or update the Software Service, and (b) represents that
those modifications or updates will not materially decrease the 3.4 Reservation of Rights. Subject to the limited rights
functionality of the Software Service. Company agrees that those granted hereunder, GuideSpark and its licensors reserve all of
modifications or updates will not constitute a breach of this its /their right, title and interest in and to the Content, Software
Agreement. Service and Professional Services, including all of GuideSpark's
and GuideSpark's licensors' Intellectual Property Rights. No rights
2.6 General Restrictions. Company will not: (i) make the are granted to Company except as expressly set forth herein.
Software Service or Content available to, or use any Software
Service or Content for the benefit of, anyone other than Company 4. Fees.
or Users; (ii) decompile, disassemble, or otherwise reverse
engineer the Software Service (except to the extent that applicable
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
•
4.1 Invoices. The applicable Order Form (or, in the case of 5. Education and Third Party Links.
Professional Services, SOW) will set forth the fees for the Software
Service and the Professional Services. GuideSpark will invoice 5.1 Education Only Solution. Company acknowledges that:
Company in advance and otherwise in accordance with the (i) THE PROFESSIONAL SERVICES AND SOFTWARE
relevant Order Form or SOW. Unless otherwise stated in the SERVICE ARE NOT INTENDED TO BE LEGAL, TAX, FINANCIAL
Order Form or SOW, invoiced charges are due net 30 days from ADVICE OR ADVICE OF ANY KIND; GUIDESPARK IS NOT A
the invoice date. Both parties are responsible for maintaining FINANCIAL PLANNER, BROKER OR TAX ADVISOR; (ii) the
complete and accurate billing and contact information. At a Software Service is for educational purposes only and should not
minimum, each invoice will identify: (i) this MSA, (ii) the applicable be considered personalized financial advice; (iii) the financial and
Order Form or SOW, (iii) the applicable Subscription Term, (iv) investment strategies presented in the Software Service were
name and description of the Software Service, and (v) the total prepared without regard to any particular User's investment
dollar amount owed. All fees paid hereunder are non - refundable objectives or financial situation, and may not be suitable for
unless this Agreement is terminated as mutually agreed under everyone; (iv) each User's financial situation is unique, and any
Section 6.2 or finally adjudicated under Section 6.2. information or advice obtained through the Software Service may
not be appropriate for a particular User's situation; and (v) before
4.2 Expenses. Company will not be responsible for any implementing any financial decisions or strategies, each User
expenses incurred by GuideSpark unless (i) the relevant Order should consider obtaining additional information and advice from
Form or SOW so provides, or (ii) reimbursement for any such their accountant or other financial advisers who are fully aware of
expenses has been approved in advance in writing by Company. their individual circumstances. GuideSpark will not be responsible
for updating or modifying Content during any applicable
4.3 Payment; Taxes. Unless otherwise stated, GuideSpark's Subscription Term to reflect changes in applicable laws and
fees do not include any taxes, levies, duties or similar regulations, but will only make those changes after the specific
governmental assessments of any nature, including but not limited written request of Company and based on information provided to
to value- added, sales, use or withholding taxes, assessable by any GuideSpark by Company.
governmental body (collectively, 'Taxes "). Company is
responsible for paying all Taxes associated with its purchases 5.2. Links. At Company's request, GuideSpark may provide
hereunder. If GuideSpark has the legal obligation to pay or collect links to other Web sites or resources as part of the Software
Taxes for which Company is responsible under this paragraph, the Service. GuideSpark is not responsible, and will not be liable, for
appropriate amount will be invoiced to and paid by Company, the contents, products or services on any third party site, and the
unless Company provides GuideSpark with a valid tax exemption inclusion of any link does not imply that GuideSpark endorses
certificate authorized by the appropriate taxing authority. For those third party sites.
clarity, GuideSpark is solely responsible for taxes assessable
against it based on its income, property and employees. 6. Term and Termination.
4.4. Overdue Charges. If any charges are not received from 6.1 Term. This Agreement is effective as of the date of the
Company by the due date, then upon written notice from Agreement and continues until all Subscriptions granted in
GuideSpark' to Company, any such charges may accrue late accordance with this Agreement and all SOWs entered into under
interest at the rate of 1.5% of the outstanding balance per month, this Agreement have expired or been terminated, unless
or the maximum rate permitted by law, whichever is lower, from the terminated earlier in accordance with this Section 6. Each
date that payment was due until the date paid. Subscription commences on the start date specified in the
applicable Order Form and continues for the Subscription Term
4.5. Suspension of Service and Acceleration. If any amount specified therein. Unless otherwise specified in the applicable
owing by Company under this Agreement is thirty (30) or more Order Form, the initial term for Subscription Products is one (1)
days overdue, GuideSpark may, without limiting its other rights and year from the subscription start date contained in the applicable
remedies, accelerate Company's unpaid fees so that all such Order Form and will automatically renew thereafter, at
obligations become immediately due, and suspend the Software GuideSpark's then - current rates, for one (1) year successive
Service and Professional Services to Company until those terms (renewal terms) after the initial term unless either party
amounts are paid in full. provides written notice to the other party of an intent to terminate
the Agreement ninety (90) days prior to the commencement of a
4.6. Payment Disputes. GuideSpark will not exercise its rights renewal term, in which event that termination will be effective
under Section 4.4 (Overdue Charges) or 4.5 (Suspension of upon the expiration of the then - current term.
Service and Acceleration) if the applicable charges are under
good -faith dispute and Company is cooperating diligently to 6.2 Termination for Cause. Either party may terminate this
resolve the dispute. Agreement if the other party fails to cure any material breach of
this Agreement within thirty (30) days after written notice of that
4.7. Fee Increases. Upon ninety (90) days' written notice prior breach.
to the commencement of a renewal term, GuideSpark may
increase the rates charged on any Order Form or SOW purchased 6.3 Not Exclusive Remedy. Termination is not an exclusive
hereunder. That price increase will not exceed the greater of (a) remedy and the exercise by either party of any remedy under this
the Consumer Price Index applicable to the Software Service, or Agreement will be without prejudice to any other remedies it may
(b) five percent (5 %), and that price increase will be effective upon have under this Agreement, by law, or otherwise.
commencement of that upcoming renewal term. If Company
exceeds the number of Permitted Users set forth in the applicable 6.4 Survival. Sections 3.3, 4, 5.1, 6.4, 7, 8, 9, 10, 11, and 13
Order Form or SOW, GuideSpark may increase price accordingly will survive any termination or expiration of this Agreement.
upon written notice. That price increase will be effective upon the
commencement of the upcoming renewal term, or upon ninety (90)
days, whichever is sooner.
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
7. Representations and Warranties. GuideSpark MERCHANTABILITY OR FITNESS FOR A PARTICULAR
represents and warrants as follows: PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING,
7.1 General Warranties. GuideSpark has with respect to this GUIDESPARK DOES NOT WARRANT OR REPRESENT THAT
Agreement and each Order Form and SOW (i) all requisite legal THE SOFTWARE SERVICE WILL BE CONTINUOUS, SECURE,
and corporate power to execute, deliver and perform its obligations RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR -
under those agreements; (ii) taken all corporate action necessary FREE, OR THAT GUIDESPARK'S SERVERS AND SOFTWARE
for the authorization, execution and delivery of those agreements; ARE FREE OF VIRUSES OR OTHER HARMFUL COM
(iii) no agreement or understanding with any third party that PONENTS, OR THAT GUIDESPARK'S SECURITY
interferes with or will interfere with its performance of its obligations PROCEDURES WILL PREVENT THE LOSS OR ALTERATION
under those agreements; (iv) obtained and will maintain all rights, OF, OR IMPROPER ACCESS TO, INFORMATION OR
approvals and consents necessary to perform its obligations and CONTENT BY THIRD PARTIES.
grant all rights and licenses granted to Company under those
agreements; and (v) taken all action required to make those 8. Company's Representations and Covenants. The
agreements legal, valid and binding obligations of GuideSpark. Company (a) represents that it is an entity duly organized and
validly existing under the laws of its jurisdiction of organization and
7.2 Software Service Performance Warranty. The Software that it has all requisite legal and corporate power to execute,
Service is and will be in Compliance. GuideSpark will provide all deliver and perform its obligations under this Agreement and each
commercially reasonable services necessary to enable Order Form and SOW; (b) represents that it is the owner, licensor,
GuideSpark to comply with the warranties set forth in this or authorized user of all Company Data; and (b) covenants that it
Agreement. will not upload, record, publish, post, link to, or otherwise transmit
or distribute Company Data that: (i) infringes or violates the
7.3 Compliance with Laws. GuideSpark's business and copyright, patent, trademark, service mark, trade name, trade
performance under this Agreement is and will be in compliance secret, or other intellectual property rights of any third party or
with all applicable federal, state and local laws and government GuideSpark, or any rights of publicity or privacy of any party; (ii)
rules and regulations. contains any viruses, Trojan horses, worms, time bombs, or any
other similar software, data, or programs that may damage,
7.4 Non - Infringement. To GuideSpark's knowledge, neither interfere with, surreptitiously intercept, or expropriate any system,
the Software Service nor any Deliverable will infringe, violate or data, Information, or property; or (iii) violates any law, statute,
misappropriate the Intellectual Property Rights of any party ordinance, or regulation.
anywhere in the world where GuideSpark conducts business.
Furthermore, GuideSpark is not aware of any pending or 9. Limitation of Liability.
threatened claims, suits, actions, or charges pertaining to the 9.1 NEITHER PARTY WILL BE LIABLE FOR ANY
Software Service or any Deliverable. GuideSpark agrees that it will INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
promptly notify Company if GuideSpark becomes aware of any CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
actual or potential claims, suits, actions, allegations or charges that LOST PROFITS), REGARDLESS OF THE FORM OF ACTION,
is reasonably likely to affect either party's ability to fully perform its WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
duties or to exercise its rights under the Agreement. STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF
7.5 No Harmful Material. Company's use or access of the THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
Software Service or any Deliverable will not cause any viruses,
worms, time bombs, Trojan horses or other harmful, malicious or 9.2 NOTWITHSTANDING ANY OTHER PROVISION OF
destructive code to be installed or introduced on Company's THIS AGREEMENT, THE PARTIES' ENTIRE LIABILITY UNDER
computer, telecommunication or other information systems THIS AGREEMENT WILL NOT EXCEED THE AMOUNT
( "Systems "). ACTUALLY PAID BY COMPANY TO GUIDESPARK UNDER
THIS AGREEMENT IN THE TWELVE (12) MONTHS
7.6 No Disruption. Except to the extent necessary for PRECEDING A CLAIM FOR DAMAGES.
Scheduled Maintenance, and subject to the provisions of Section
4.5, GuideSpark, its agents or employees or anyone acting on its 9.3 THE PROVISIONS OF THIS SECTION 9 WILL NOT
behalf, will not disable or interfere, in whole or in part, with APPLY TO ANY CLAIM UNDER SECTION 10
Company's use of or access to the Software Service, Company (INDEMNIFICATION) OR SECTION 11 (CONFIDENTIAL
Data or any software, hardware, Systems or data owned, utilized INFORMATION).
or held by Company without the written permission of a corporate
officer of Company. 9.4 The parties agree that the limitations specified in this
7.7 Services Warranty. GuideSpark will render Professional Section 9 will survive and apply even if any limited remedy
Services in a professional manner consistent with industry specified in this Agreement is found to have failed of its essential
standards, and all personnel providing Professional Services will purpose.
be appropriately trained and qualified. Each warranty applying to
the "Software Service" under this Agreement will apply to any 10. Indemnification.
Deliverable provided as part of Professional Services unless
otherwise specified in the applicable Order Form. 10.1 Indemnification by GuideSpark. If a third party makes a
claim against Company, its Affiliates or their respective
7.8 Warranty Disclaimer. EXCEPT AS EXPRESSLY Contractors, officers, directors and employees (the "Company
PROVIDED IN THIS AGREEMENT, THE PROFESSIONAL Indemnitees ") that the Software Service or a Deliverable, except to
SERVICES AND THE SOFTWARE SERVICE ARE PROVIDED the extent that the claim includes any Company Data (collectively,
WITH NO OTHER WARRANTIES OF ANY KIND, AND the "Software ") infringes its intellectual property rights (a
GUIDESPARK DISCLAIMS ALL OTHER WARRANTIES, "Company Claim "), GuideSpark will defend the Company
WHETHER EXPRESS OR IMPLIED OR STATUTORY, Indemnitee against the Company Claim and indemnify the
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF Company Indemnitee from the damages, liabilities, costs and
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
expenses awarded by the court to that third party or the settlement assistance (at the expense of Company) in connection with the
agreed to by GuideSpark, subject to the provisions of section 10.2. defense or settlement of any such GuideSpark Claim; except that
failure to provide the notice specified in (a) above will relieve
10.2 Process and Remedies. A Company Indemnitee may Company from its liability or obligation hereunder only to the extent
obtain indemnification under Section 10.1 from GuideSpark for a of any material prejudice directly resulting from that failure; and
Company Claim on condition that the Company Indemnitee (a) provided, further, that Company will not agree to any settlement or
gives GuideSpark prompt written notice of any such Company compromise under (b) above that would require the GuideSpark
Claim, (b) permits GuideSpark to control and direct the defense or Indemnitee to make any payments, bear any obligations or admit
settlement of any such Company Claim, and (c) provides any liability unless Company obtains the GuideSpark Indemnitee's
GuideSpark all reasonable assistance (at the expense of prior written approval, which shall not be unreasonably withheld.
GuideSpark) in connection with the defense or settlement of any
such Company Claim; provided that failure to provide the notice 11. Confidential Information.
specified in (a) above will relieve GuideSpark from its liability or
obligation hereunder only to the extent of any material prejudice 11.1 Confidential Information. Each party (Receiving Party")
directly resulting from that failure; and provided, further, that agrees that all code, inventions, know -how, business, technical
GuideSpark will not agree to any settlement or compromise under and financial information it obtains from the disclosing party
(b) above that would require the Company Indemnitee to make any ( "Disclosing Party") constitute the confidential property of the
payments, bear any obligations or admit any liability unless Disclosing Party ( "Confidential Information "), on condition that (i) it
GuideSpark obtains the Company Indemnitee's prior written is identified in writing as confidential at the time of disclosure, (ii) if
approval, which shall not be unreasonably withheld. A Company disclosed verbally, is identified as confidential in writing within
Indemnitee may participate in the defense of any Company Claims thirty (30) days of the disclosure; or (iii) should have been
by counsel of its own choosing, at its cost and expense. Should reasonably known to the Receiving Party to be Confidential
the Software become, or in GuideSpark's opinion be likely to Information. The terms of this Agreement, Company Data and any
become, the subject of a Company Claim, GuideSpark will, at not previously publicly disclosed information about Company's
GuideSpark's sole expense: (i) procure for Company the right to business, finances, information systems, software or technology
continue to use the Software as contemplated hereunder, (ii) provided by Company to GuideSpark under this Agreement will be
modify the Software to eliminate any Company Claim that might deemed Confidential Information of Company without any marking
result from its use hereunder, on condition that the Software or further designation. Except as expressly authorized in this
remain in Compliance, or (iii) replace the Software with equally Agreement, the Receiving Party will hold in confidence and not use
suitable, compatible and functionally equivalent non - infringing or disclose any Confidential Information. The Receiving Party's
software services subject to Company's approval, which shall not nondisclosure obligation will not apply to information that the
be unreasonably withheld, at no additional charge to Company. Receiving Party can document: (i) was rightfully in its possession
or known to it prior to receipt of the Confidential Information; (ii) is
10.3 Exceptions. Notwithstanding the foregoing, GuideSpark or has become public knowledge through no fault of the Receiving
will have no obligations under this Section 10 to the extent any Party; (iii) is rightfully obtained by the Receiving Party from a third
infringement claim is based upon or arising out of (i) a Company party without breach of any confidentiality obligation; (iv) is
Indemnitee's modification or alteration to the Software Service not independently developed by employees of the Receiving Party
approved by GuideSpark, (ii) a Company Indemnitee's who had no access to such information; or (v) is required to be
combination or use of the Software Service with products or disclosed pursuant to a regulation, law or court order (consistent
services not supplied by GuideSpark or approved in writing by with Section 11.3). The Receiving Party acknowledges that
GuideSpark in advance of that combination, (iii) a Company disclosure of Confidential Information may cause substantial harm
Indemnitee's use of the Software Service not in accordance with for which damages alone may not be a sufficient remedy, and
the applicable Documentation, to the extent provided in writing by therefore that upon any such disclosure by the Receiving Party,
GuideSpark, or outside the scope of any license granted under this the Disclosing Party may seek appropriate equitable relief in
Agreement, (iv) components of the Software Service that are addition to whatever other remedies it might have at law.
developed in accordance with Company's specifications, (v)
Company Data or User Data or (vi) Company's breach of this
Agreement. This Section 10 provides the Company Indemnitee's 11.2 Return of Materials. Upon termination of the Agreement
exclusive remedy for any infringement claims or damages. for any reason, or upon earlier written request by Disclosing Party,
Receiving Party will promptly destroy or (if specifically requested)
10.4 Indemnification by Company. If a third party makes a return to Disclosing Party all documents or materials of any nature
claim against GuideSpark, its Affiliates or their respective in Receiving Party's possession, custody or control (regardless of
Contractors, officers, directors and employees (the "GuideSpark the media in which those documents or materials are stored) that
Indemnitees") that Company Data or User Data (collectively, the have been furnished by Disclosing Party to Receiving Party except
"Data ") infringes its intellectual property rights or violates any law as required by applicable law.
or regulation, or if any User makes a claim against a GuideSpark
Indemnitee that in any way relates to that User's acting or failing to 11.3 Compelled Disclosure. The Receiving Party may disclose
act on a financial decision or strategy or is in any other way related Confidential Information of the Disclosing Party to the extent
to or in connection with or as a result of that User's access to the compelled by law to do so, provided the Receiving Party gives the
Professional Services or Software Service (a "GuideSpark Claim "), Disclosing Party prior notice of the compelled disclosure (to the
Company will defend the GuideSpark Indemnitee against the extent legally permitted) and reasonable assistance, at the
GuideSpark Claim and indemnify the GuideSpark Indemnitee from Disclosing Party's cost, if the Disclosing Party wishes to contest
the damages, liabilities, costs and expenses awarded by the court the disclosure. If the Receiving Party is compelled by law to
to the third party or the settlement agreed to by Company, on disclose the Disclosing Party's Confidential Information as part of
condition that the GuideSpark Indemnitee (a) gives Company a civil proceeding to which the Disclosing Party is a party, and the
prompt written notice of any such GuideSpark Claim, (b) permits Disclosing Party is not contesting the disclosure, the Disclosing
Company to control and direct the defense or settlement of any Party will reimburse the Receiving Party for its reasonable cost of
such GuideSpark Claim, and (c) provides Company all reasonable compiling and providing secure access to that Confidential
Information.
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
prior written consent of the other party, except that either party may
12. Access and Data Security. assign this Agreement without consent in connection with a
merger, reorganization, acquisition or other transfer of all or
12.1 Access to Systems. Access, if any, to Company's substantially all of its assets and /or voting securities. Any attempt
Systems is granted solely to facilitate the business relationship to transfer or assign this Agreement except as expressly
described in this Agreement, and is limited to those specific authorized under this Section 13.1 will be null and void.
Systems, time periods, and personnel as are separately
designated by Company in writing from time to time. Access is 13.2 Severability. If any provision of this Agreement is
subject to business control and information protection policies, adjudged by any court of competent jurisdiction to be
standards, and guidelines as may be provided in writing by unenforceable or invalid, that provision will be interpreted to fulfill
Company to GuideSpark. its intended purpose to the maximum extent permitted by
applicable law, and the remaining provisions of this Agreement will
12.2 Data Protection continue in full force and effect.
12.2.1 Company Data. GuideSpark will not: (i) use Company 13.3 Governing Law; Jurisdiction and Venue. This Agreement
Data except to the extent necessary to provide the Software and all related actions and proceedings will be governed by the
Service or Professional Services; (ii) copy, modify, create laws of the State of California and the United States without regard
derivative works of or disclose Company Data (except that to conflicts of laws provisions thereof, and without regard to the
GuideSpark may transfer Company Data to its hosting service to United Nations Convention on the International Sale of Goods or
the extent necessary to provide the Software Service or other international laws.
Professional Services); or (iii) commercially exploit Company Data
or allow it to be commercially exploited on GuideSpark's behalf. 13.4 Notices. Notices under this Agreement will be sent to the
addresses provide in the signature block of this Agreement, or to
12.2.2 Usage Data. Notwithstanding anything to the contrary set those others as either party may provide in writing. These notices
forth in this Agreement, GuideSpark may aggregate and will be deemed received at those addresses: (i) upon receipt if by
anonymize usage data in a manner that cannot be identified as or personal delivery; (ii) upon receipt if sent by certified or registered
in any way related to Company or any User, and use and disclose U.S. Mail (return receipt requested); (iii) one (1) day after it is sent
that aggregated information. if by next day delivery by a major commercial delivery service; or
12.2.3 Safeguards. GuideSpark will implement and maintain (iv) the first business day after sending by email (provided email
commercially reasonable administrative, physical and technical shall not be sufficient for notices of termination or an indemnifiable
safeguards that prevent any unauthorized use, access, claim).
processing, destruction, loss, alteration, or disclosure of any 13.5 Amendments; Waivers. No supplement, modification, or
Company Data or User Data as may be held or accessed by
GuideSpark. GuideSpark shall utilize Company Data and User amendment of this Agreement will be binding unless executed in
Data in accordance with the Privacy Policy published on writing by an Authorized Representative of each party to this
GuideSpark's website. Agreement. No waiver will be implied from conduct or failure to
enforce or exercise rights under this Agreement, nor will any
12.2.4 Notification of Security Breach. GuideSpark will promptly waiver be effective unless in a writing signed by an Authorized
notify Company following discovery of any suspected breach or Representative on behalf of the party claimed to have waived.
compromise of the security, confidentiality, or integrity of any
Company Data or User Data. Written notification provided under 13.6 Entire Agreement. This Agreement (including all exhibits
this paragraph will include a brief summary of the available facts, and referenced Order Forms and SOWS) is the complete and
the status of GuideSpark's investigation, and if known and exclusive statement of the mutual understanding of the parties and
applicable, the potential number of persons affected by release of supersedes and cancels all previous written and oral agreements
data relating to such person ( "Affected Persons "). If applicable, and communications relating to the subject matter of this
upon written request from Company, GuideSpark agrees to notify Agreement. With the exception of the GuideSpark Terms of Use
the Affected Persons regarding any security breach in a referenced in Section 2.3 and the Privacy Policy published on
commercially reasonable form approved in writing by Company. GuideSpark's website, contract terms and conditions included in
These notices will be delivered within a reasonable time at any "click wrap," "browsewrap," "shrinkwrap," or other license
Company's direction. All costs associated with any security agreement that accompanies the Software Service provided under
breach, including but not limited to the costs of the notices to any Order Form resulting from this Agreement will be void and
Affected Persons, will be the sole responsibility of GuideSpark. have no effect unless Company specifically agrees to those
GuideSpark agrees that it will not communicate with any third license terms in writing.
party, including, but not limited to the media, consumers and
Affected Persons regarding any security breach without the 13.7 Independent Contractors. The parties to this Agreement
express written consent and direction of Company except as are independent contractors. This Agreement creates no
required by applicable law. relationship of partnership, joint venture, employment, franchise or
agency between the parties. Neither GuideSpark nor any of its
12.2.5 Further Assurance. At Company's request, GuideSpark employees or subcontractors will be eligible for any benefits
normally provided by Company to its employees. Neither party will
will execute and abide by the terms of any agreements as may be have the power to bind the other or incur obligations on the other
required by applicable law. party's behalf without the other party's prior written consent.
13. General. 13.8 Force Majeure. Either party's performance of any part of
this Agreement will be excused to the extent that it is unable to
13.1 Assignment. This Agreement will bind and inure to the perform due to natural disasters, terrorism, riots, insurrection, war,
extraordinary governmental action, material labor strikes
benefit of each party's permitted successors and assigns. Neither
party will assign this Agreement (or any part thereof) without the (excluding strikes by the party's own workforce), or any other
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
cause that is beyond the reasonable control of that party (the a. Commercial General Liability Insurance. Before this
"Affected Party"), not avoidable by reasonable due diligence, and Contract is fully executed by the parties, GuideSpark
on condition that the cause is not attributable to the Affected Party shall provide the City with a certificate of insurance as
(a "Force Majeure Event"). Upon the occurrence of a Force proof of commercial liability insurance and commercial
Majeure Event, the Affected Party will promptly notify the other umbrella liability insurance with a total minimum liability
party of the Force Majeure Event, including an estimate of its limit of Two Million Dollars ($2,000,000.00) per
expected duration and probable impact on the performance of the occurrence combined single limit bodily injury and
Affected Party's obligations under this Agreement. In addition, the property damage, and Two Million Dollars
Affected Party will (i) exercise commercially reasonable efforts to ($2,000,000.00) general aggregate (per project). The
mitigate damages to the other party and to overcome the Force policy shall include employers liability (Washington Stop
Majeure Event and (ii) continue to perform its obligations under this Gap). The certificate shall clearly state who the provider
Agreement to the extent it is able. If any failure or delay caused by is, the coverage amount, the policy number, and when the
a Force Majeure Event continues for ten (10) days or longer, the policy and provisions provided are in effect. Said policy
party unaffected by the event will have the right to terminate this shall be in effect for the duration of this Contract. The
Agreement without cost or liability upon notice to the Affected Party policy shall name the City, its elected officials, officers,
and to receive a refund of all pre -paid fees for any performance not agents, employees, and volunteers as additional
yet delivered. insureds. The insurance shall be with an insurance
company or companies rated A -VII or higher in Best's
13.9 Counterparts. This Agreement may be executed in two or Guide and admitted in the State of Washington.
more counterparts, each of which will be considered an original but
all of which together will constitute one agreement. b. Professional Liability Coverage. Before this Contract is
fully executed by the parties, GuideSpark shall provide
13.10 Order of Precedence. If a term in an Order Form or SOW the City with a certificate of insurance as proof of
conflicts with a term in this MSA, the provisions of this MSA will professional liability coverage with a total minimum
prevail unless the relevant Order Form or SOW specifically liability limit of Two Million Dollars ($2,000,000.00) per
references this MSA and states that the term in the relevant Order claim combined single limit bodily injury and property
Form or SOW will prevail. damage, and Two Million Dollars ($2,000,000.00)
aggregate. The certificate shall clearly state who the
13.11 Effectiveness; Date. This Agreement will become provider is, the coverage amount, the policy number, and
effective when all parties have signed it. The date of this when the policy and provisions provided are in effect.
Agreement will be date this Agreement is signed by the last party The insurance shall be with an insurance company or
to sign it (as indicated by the date associated with that party's companies rated A -VII or higher in Best's Guide. If the
signature). policy is written on a claims made basis the coverage will
continue in force for an additional two years after the
13.12 Insurance. At all times during performance of the completion of this contract.
Software Services, GuideSpark shall secure and maintain in effect
insurance of the following types and amounts:
GuideSpark, Inc. Master Subscription Agreement (rev. 1.22.2014)
i despa
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EXHIBIT A
ORDER FORM
Order Form Number ?'001,; ' Prepared By "CliiisWilley „;
Under MSA Signed on •.01/.01/ 2 01.5 , - ..''. , ::::',z: , ': , ; : ',;:,;:; - . Created Date 01/01'/2015- .,, ,
Quote Number 1399: % ` :ii; ,-,.'” ;, ;; Quote Expiration Date y; 01f08/2015: ,, "
This Order Form is for the purchase of a subscription to the GuideSpark, Inc. ( "GuideSpark ") products and services set forth below.
Provision of all products and services set forth herein is subject to the Master Subscription Agreement between City of Yakima
( "Company ") and GuideSpark and the terms set forth in Exhibits B ( "Service Level Agreement ") and C ( "Support and Development
Policy ") thereto. All terms used but not defined herein will have the meaning set forth in the Master Subscription Agreement.
'µ ,; - Permitted ` ;' ' : - ":Annual'Recurriri'
L ` Product ID _ ,^ i"), Product,, ,' ,,, ` p , . Start Date , Renewal ,' Users .liit'Pike4 ,., ,Piice (Per Year);'
A- 035 -B -P1 OE Teaser 12/1/2014 12/01/2015 1000 $3,150 $3,150
A- 002 -B -P1 Medical Plans Overview 12/1/2014 12/01/2015 1000 $3,150 $3,150
C- 002 -B -P1 Open Enrollment 12/1/2014 12/01/2015 1000 $7,350 $7,350
C- 003 -B -P1 Benefits Overview 12/1/2014 12/01/2015 1000 $7,350 $7,350
C- 005 -B -P1 Wellness: An Overview 12/1/2014 12/01/2015 1000 $7,350 $7,350
k
,
litto 3�ALANNUA ' REC,U: JRIN,G`FEES
. • $28,350 $28,350
0- 003 -B -P1 Set -Up Fee for Platform $1,500 $1,500
z„ '
O ;lrINI.(OkS; ; F ,,'. $1,500 $1,500
GRAND TOTAL $29,850 $29,850
GuideSpark Confidential - 2014
guidesparl,
I NVOICE TO ,. , . ...
Billing Address:
Attn:
Department /Division (If Applicable):
PO Required on Invoice: [ ] Yes or [ ] No
If yes, PO #:
Accounts Payable Email Alias:
Term
The initial term for Subscription Products is the period of time defined by the subscription start and end dates contained in this
Order Form and will automatically renew thereafter, at GuideSpark's then - current rates, for one (1) year successive terms (renewal
terms) after the initial term unless either party provides written notice to the other party of an intent to terminate the Agreement
ninety (90) days prior to the commencement of a renewal term, in which event that termination will be effective upon the
expiration of the then - current term.
This Order Form has been accepted and agreed to by the authorized representative of each party on the date stated below each
signature.
GuideSpark Confidential - 2014
s
guluesparl,
City of Yakima GUIDESPARK, INC.
129 2nd St 350 Willow Rd. Suite 201
Yaki ik a, WA 98901 M - • lo Park, CA 94025
ure Sign. re - -
NA
l l t q,� Christop • r J. Kr. ok
Print Name l / Print Name
VP of Finance and Administration
ManaCy—r
Title Title
Date Date
( C;‘ \ l S LO — �33 800 - 519 -0024
Fax No. J Fax No.
ckrook @guidespark.com
IAA+ t Dw Y-e `O �ma V
Email Email
Primary User Contact
Primary User Email
Bill To Contact
Bill To Email
CITYCONTRAC r NO:J /
RESOLUTION NO. .
GuideSpark Confidential - 2014
UdOS 7_d
EXHIBIT B
SERVICE LEVEL AGREEMENT
Service Availability Objective. GuideSpark will make commercially reasonable efforts to provide monthly Service Availability of 98%
( "Service Availability Objective "). Service Availability is defined as the time that the Service is capable of receiving, processing, and
responding to requests, excluding (a) Scheduled Maintenance, (b) Company Error Incidents, and (c) Force Majeure Event. Service
Availability is calculated as a percentage by dividing the number of minutes the Software Service is available during the applicable month
by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance, Company Error Incidents, and
Force Majeure Event.
Definitions.
"Scheduled Maintenance" is defined as making changes to the Software or cloud infrastructure during which users are prevented from
using the Software Service. Scheduled Maintenance work will primarily occur during pre- defined maintenance windows, on Fridays from
8:00pm PST to 12:00am PST, and on Saturdays from 7:00pm to 11:00pm PST. Company will generally receive written notice five (5)
days in advance of any Scheduled Maintenance, however GuideSpark reserves the right to perform Scheduled Maintenance during the
pre- defined maintenance windows described in this Exhibit B with a minimum of thirty (30) minutes' notice. GuideSpark will provide
Company ten (10) days' prior notice if maintenance is expected to exceed the four (4) hour period. Scheduled Maintenance may
infrequently occur outside the pre- defined windows. In that case, GuideSpark will provide Company at least five (5) days' notice.'
"Company Error Incident" is defined as any Software Service unavailability resulting from applications, Content, or equipment provided
by Company or a User, or the acts or omissions of a User.
"Force Majeure Event" is defined in Section 13.8 of the MSA.
Remedy for Failure to Achieve Service Availability Objective. At the written request of the Company, and no more than four (4) times per
calendar year, GuideSpark will calculate specific Service Availability during each of the three (3) calendar months preceding Company's
request, and provide a report to Company. In the event that the Service Availability Objective was not met in a given month, then for each
day in that month that the duration of the Service unavailability exceeds four (4) continuous hours, the Company may receive a one (1)
day credit for the Software Service (a "Service Credit "), subject to the Agreement and requirements of this Exhibit B. For purposes of
calculating the Service Availability Objective, GuideSpark will only consider the Software Service unavailable if the Company opened a
trouble ticket relating to the Service unavailability with the GuideSpark customer support department within three (3) business days of the
Service unavailability. To obtain a Service Credit for GuideSpark's failure to meet the Service Availability Objective, the Company must
request that credit in writing no later than ten (10) business days following receipt of the report. In the event of a conflict between the data
in the Company's records and GuideSpark's records, the data in GuideSpark's records shall prevail. Any Service Credits due hereunder
will be applied to the Company's account at the conclusion of the then - current Subscription Term, by extending that Subscription Term
by the length of the Service Credits. Notwithstanding the foregoing, if the Software Service was purchased on a monthly or pay -per use
basis, Company will receive no Service Credits. The Service Credits offered in this Exhibit B shall be Company's sole and exclusive
remedy for any failure of GuideSpark to meet the Service Availability Objective. Any unused Service Credits will expire upon termination
of this Agreement.
GuideSpark Confidential - 2014
e At4
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k
EXHIBIT C
SUPPORT AND DEVELOPMENT POLICY
Definitions.
"Annual Maintenance" is defined as the work hours GuideSpark dedicates to maintaining and updating Content during the Subscription
Term.
"Development Time" is defined as the work hours GuideSpark dedicates to producing Content as part of Company's Subscription.
"Reviews" is defined as the review or revisions conducted by Customer of Content developed by GuideSpark as part of the Software
Service.
"Subscription Category" is defined as the class of Software Service subscribed to by Company, as set forth in the applicable Order Form(s).
Subscription Categories include Category A, Category B and Category C, and are further defined as either "Lite" or "Premium ".
"Video Run Time" is defined as the length of a given video that is part of the Software Service.
Support. During each Subscription Term, GuideSpark will provide Company email assistance at support@guidespark.com for general
advice and technical support, as well as technical assistance and remediation for operational issues as further described below from 8
am - 5 pm PST, Monday through Friday, excluding national holidays. Support response times are based on the severity level of each
issue, and are described generally below.
Severity Description Response
1 Urgent: Entire service is unavailable and unusable, and no operations can be completed. Response: 1 hour
Resolution: 8 hours
2 High: Major functionality is not available or service is seriously degraded, and no workaround Response: 8 hours
is available. This includes content that does not play or data that appear corrupted. Resolution: 2 business
days
3 Medium: A program error where a suitable workaround exists or the feature is minor and is not Response: 1 business
required for the User to use the site. Medium severity issues may deferred at GuideSpark's day
discretion. Resolution: 5 business
days
4 Low: No impact on the User's experience. Examples include confusing text or a missing Response: 2 business
graphic on a minor page. Low severity issues may deferred at GuideSpark's discretion. days
Resolution: At
GuideSpark's discretion
Training. If set forth in the applicable Order Form, GuideSpark will, upon Company's request, provide Training upon the terms described
in that Order Form.
Professional Services. Professional Services, if any, shall be provided under an Order Form or SOW describing the work to be performed,
fees and any applicable milestones, dependencies and other technical specifications or related information and be signed by both parties
before GuideSpark will commence work.
Reviews, Video Run Time, Development and Annual Maintenance. The number of Company Reviews and the length of Video Run Time
will be limited based on the Software Service's Subscription Category, as set forth below. The Software Service will include Development
Time during the initial Subscription Term, and Annual Maintenance during both the initial and renewal Subscription Terms, each capped
at hourly limits based on the Software Service's Subscription Category. In the event that Company requires Development Time or Annual
Maintenance that exceeds the limits of its Subscription Category ( "Additional Work "), GuideSpark shall notify Company that the Additional
Work is necessary, and will provide Company with notice before charging Company for that Additional Work. Company shall be invoiced
at GuideSpark's then - current hourly rate for each hour of Additional Work performed by GuideSpark. In the event Company requires
GuideSpark to use a custom asset for Content creation that is not a part of GuideSpark's then - existing asset library, Company shall either
deliver such asset to GuideSpark (as Company Data), or GuideSpark shall provide Company a separate quote for the cost of that custom
asset. GuideSpark's limits on Edits, Reviews, Video Run Time, Development Time and Annual Maintenance are set forth in the table
below.
GuideSpark Confidential - 2014
•
a
guidesparik.
| Lite Customization I Premium Customization
Employer Voice —T iNarrative edits on up to 30% of video 'Custom narrative
chapters
------ ,
Brand IDesigned to reflect your brand (logo, colors, style guide
Visual style/imagery Select from 2 visual style options Custom style guide
Visual edits on up to 30% of video chapters Your choice of edits to visuals
'Your choice of edits to on-screen copy Your choice of edits to on-screen copy
Voiceover Select from 5 GuideSpark voice talents Select from library of 7 voice talents
Style Guide Lite 1 revisions
Narrative N/A (No pre-video narrative review) 3 revisions per narrative
Video 2 revisions per video
(no sharing of narrative) 3 revisions per video
,,„.„„,,,„„:„,„,,,F,:;';!HiF, Z ':';',: ,C,7■3ii,7Int ' r ci '71 , 7k,/ , 'Nk ; 7, FT,Z; ''. ':`,7 /.1r
Group A
20 hrs
Group C/D
GuideSpark Confidential -20/4