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HomeMy WebLinkAboutGranicus, Inc. 2010-06-22 - expired per Mary HGRANICUS, INC. SERVICE AGREEMENT THIS SERVICE AGREEMENT (the "Agreement"), dated as of June 22, 2010 (the "Effective Date"), is entered into between Granicus, Inc. ("Granicus"), a California Corporation, and the City of Ukiah (the "Client"). Capitalized terms used in this Agreement have the meanings given them in Section 13. A. WHEREAS, Granicus is in the business of developing, licensing, and offering for sale various streaming media solutions specializing in Internet broadcasting, and related support services; and B. WHEREAS, Granicus desires to provide and Client desires to (i) purchase the Granicus Solution as set forth in the Proposal attached as Exhibit A to facilitate streaming and distribution of live and archived digital media content, (ii) engage Granicus to integrate its Granicus Software onto the Client Website, (iii) use the Granicus Software subject to the terms and conditions set forth in this Agreement, and (iv) contract with Granicus to administer the Granicus Solution through the Managed Services set forth in the Proposal. NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, covenants, representations and warranties herein contained, the parties hereto agree as follows: 1. GRANICUS SOFTWARE AND MANAGED SERVICES. 1.1 Software and Services. Subject to the terms and conditions of this Agreement, Granicus will provide Client with the Granicus Software, Professional Services, and Managed Services that comprise the Granicus Solution as outlined in the Proposal attached as Exhibit A. 1.2 The Proposal. The Proposal specifies certain terms, conditions, payments and obligations on the products and services to be provided by Granicus to Client. The Proposal is an additional part of this Agreement and incorporated herein by reference. In the event that any of the provisions of this Agreement are in conflict with the Proposal, the provisions of this Agreement will prevail. 2. GRANT OF LICENSE. 2.1 Ownership. Granicus, and/or its third party supplier, owns the copyright and/or certain proprietary information protectable by law in the Granicus Software. 2.2 Use. Granicus agrees to provide Client with a revocable, non-transferable and non-exclusive account to access the Granicus Software listed in the Proposal and a revocable, non- sublicensable, non-transferable and non-exclusive right to use the Granicus Software. All Granicus Software is proprietary to Granicus and protected by intellectual property laws and international intellectual property treaties. Pursuant to this Agreement, Client may use the Granicus Software to perform its own work and work of its customers/constituents. Cancellation of the Client's Managed Services will also result in the immediate termination of the Client's Software license as described in Section 2.2 hereof. 2.3 Limited Warranty; Exclusive Remedies. Subject to Sections 7.2 and 7.3 of this Agreement, Granicus warrants that the Granicus Software, as provided by Granicus, will substantially perform in accordance with its applicable written specifications for as long as the GRAmcus, INC. SERVICE AGREEMENT l 1 Version 4.1.3 J Client pays for and receives Managed Services. Client's sole and exclusive remedy for any breach by Granicus of this warranty is to notify Granicus, with sufficient detail of the nonconformance, and provide Granicus with a reasonable opportunity to correct or replace the defective Granicus Software. Client agrees to comply with Granicus' reasonable instructions with respect to the alleged defective Granicus Software. 2.4 Limitations. Except for the license in Section 2.2, Granicus retains all ownership and proprietary rights in and to the Granicus Software, and Client is not permitted, and will not assist or permit a third party, to: (a) utilize the Granicus Software in the capacity of a service bureau or on a time share basis; (b) reverse engineer, decompile or otherwise attempt to derive source code from the Granicus Software; (c) provide, disclose, or otherwise make available the Granicus Software, or copies thereof, to any third party; or (d) share, loan, or otherwise allow another Meeting Body, in or outside its jurisdiction, to use the Granicus Software, or copies thereof, except as expressly outlined in the Proposal. 2.5 Licensee Obligation for Security. Client shall take appropriate action by instruction, agreement, or otherwise with those of its employees and third party agents having access to the Granicus Software to restrict and control the use, copying, modification, disclosure, transfer, protection, and security of such Granicus Software in accordance with the provisions of this Agreement. 2.6 Licensing Types. Components of the Granicus Software are licensed as follows, as further provided in the Proposal attached as Exhibit A: (a) by Site: bandwidth and storage components, MediaManager Basic, MediaManager Enterprise, podcasting (both audio-only and audio/video); (b) by Install: Outcast Encoder, MediaVault, StreamReplicator, VotingSystem, MobileEncoder (both audio-only and audio/video); (c) by Meeting Body: MinutesMaker, agenda workflow integration, Agenda Parsers, Closed Captioning. 2.7 General. Client and Granicus agree to take reasonable steps to comply with all applicable local, state and federal laws and regulations issued pursuant thereto. CLIENT SUPPORT-, SALE AND MAINTENANCE OF HARDWARE 3.1 Client Support. At no additional fee, Granicus will use commercially reasonable efforts to provide Client with reasonable telephone or e-mail technical support twenty-four (24) hours a day, seven (7) days a week, via the office and after hours Client support lines and email address. Support Information is listed in Exhibit B. Additional support of software enhancements or modifications may be requested by Client subject to Client's payment to Granicus of additional fees. Granicus may update and revise the Granicus Software periodically and will provide such updates to Client as they are made available. 3.2 Sale and Maintenance of Hardware. Where the Granicus Solution includes the purchase of Hardware from Granicus, the sale and maintenance of such Hardware shall be governed by the Hardware Exhibit attached as Exhibit C. GRANICUs, INC. SERVICE AGREEMENT 2 Version 4.1.3 4. PAYMENT OF FEES 4.1 Upon execution of this Agreement, Granicus shall invoice and the Client agrees to pay fifty percent (50%) of the cost of Professional Services (excluding training) as outlined in the Proposal. 4.2 Where the Granicus solution includes the purchase of hardware from Granicus, upon delivery of any purchased Hardware to Client, Granicus shall invoice and the Client agrees to pay the cost of the Hardware (including shipping costs) in full, as outlined in the Proposal. 4.3 Upon the completion of Phase 1 Training, Granicus shall invoice and the Client agrees to pay the remaining fifty percent (50%) of the cost of Professional Services (excluding training) as outlined in the Proposal. Upon the completion of Phase 1 Training, Granicus shall invoice and the Client agrees to pay the cost of Granicus training services as outlined in the Proposal. 4.4 Monthly billing for Managed Services shall begin forty-five (45) days after the receipt of a fully executed Agreement or the receipt of a purchase order for the up-front costs, whichever occurs first, as agreed upon in the Proposal. 4.5 Client agrees to pay all invoices from Granicus within thirty (30) days of receipt of invoice, provided that Client agrees to pay the Managed Services Fee to Granicus on a monthly basis, no later than the first day of each month in advance of services. Granicus, Inc. shall send all invoices to: Name: Kim Sechrest Title: Accounts Payable Address: 300 Seminary Ave., Ukiah, CA 95482-5400 4.6 Upon renewal of this Agreement, Granicus may include (in which case Client agrees to pay) a maximum increase of the current CPI percentage rate (as found at The Bureau of Labor and Statistics website hq://www.bls.gov/CPU) or three (3) percent a year on Client's Managed Services Fee, whichever is larger. 4.7 Training Cancellation Policies. Granicus' policies on Client cancellation of scheduled trainings are as follows: (a) Onsite Training. For any cancellations within forty-eight (48) hours of the scheduled onsite training, Granicus, at its sole discretion, may invoice the Client for one hundred (100) percent of the purchased training costs and all travel expenses, including any incurred third party cancellation fees. Subsequent training will need to be purchased and scheduled at the previously quoted pricing. (b) Online Training. For any cancellations within twenty-four (24) hours of the scheduled online training, Granicus, at its sole discretion, may invoice the Client for fifty (50) percent of the purchased training costs, including any incurred third party cancellation fees. Subsequent training will need to be purchased and scheduled at the previously quoted pricing. GR,kmcus, INC. SERVICE AGREEMENT 3 Version 4.1.3 5. CONTENT PROVIDED TO GRANICUS 5.1 Responsibility for Content. The Client shall have sole control and responsibility over the determination of which data and information shall be included in the Content that is to be transmitted, including, if applicable, the determination of which cameras and microphones shall be operational at any particular time and at any particular location. However, Granicus has the right (but not the obligation) to remove any Content that Granicus believes violates any applicable law or this Agreement. 5.2 Restrictions. Client shall not provide Granicus with any Content that: (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights; (ii) violates any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control and e-mail/spam; (iii) is defamatory or trade libelous; (iv) is pornographic or obscene, or promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, indecent, vulgar, or otherwise objectionable or constitutes unlawful content or activity; (v) is harmful to minors; or (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, intercept, or expropriate any system, data, information, or property of another; provided, however, that Granicus acknowledges that Client will stream live City Council and other public meetings in which members of the public have a right to speak. Client does not assume any responsibility and shall have no obligation to indemnify Granicus for statements made by members of the public during City Council or other meetings subject to California's Open Meeting Law which are streamed by Granicus. The views expressed at City Council and other such meetings are solely the views of the speaker and do not necessarily represent the views of the Client, its officer or employees. 5.3 Indemnification. Subject to Section 5.2, Client agrees to indemnify, defend and hold harmless Granicus, its officers, directors and employees, from and against any losses, damages and expenses (including lawyers' fees) arising out of or relating to any third party claims made against Granicus based on Client's use of the Granicus Solution including, without limitation, any claims that Client has copied, distributed or transmitted any image files in violation of any third party's rights or has directly or indirectly exported or transmitted the Content in violation of any applicable export restrictions. 6. TRADEMARK OWNERSHIP. Granicus and Client's Trademarks are listed in the Trademark Information exhibit attached as Exhibit D. (a) The Client shall retain all right, title and interest in and to its Trademarks, including any goodwill associated therewith, subject to the limited license granted to Granicus, Inc. pursuant to Section 6 hereof. All goodwill arising from use of Client's Trademarks is solely for Client's benefit. Upon any termination of this Agreement, Granicus' right to use Client's Trademarks pursuant to this Section 6 terminates. (b) Granicus, Inc. shall retain all right, title and interest in and to the Granicus, Inc. Trademarks, including any goodwill associated therewith, subject to the limited license granted to the Client pursuant to Section 6 hereof. Upon any termination of this Agreement, Client's right to use Granicus' Trademarks pursuant to this Section 6 terminates. (c) Each party grants to the other a non-exclusive, non-transferable (other than as provided in Section 8 hereof), limited license to use the other party's Trademarks as is GRANICUs, INC. SERVICE AGREEMENT 4 Version 4.1.3 reasonably necessary to perform its obligations under this Agreement, provided that any promotional materials containing the other parry's trademarks shall be subject to the prior written approval of such other parry, which approval shall not be unreasonably withheld. (d) Neither parry shall use the other parry's Trademarks in a manner that disparages the other parry or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall take commercially reasonable efforts to comply with the other party's requests as to the use of the other party's Trademarks and shall avoid any action that diminishes the value of such Trademarks. (e) The parties agree that Granicus has the right to mention the parties' relationship and to use Client's Trademarks including its name and logo in marketing to client and prospective clients, and to list Client as a customer on the Granicus website(s). 7. SECURITY, LIMITATION OF LIABILITY. 7.1 Security of Data. Granicus will take commercially reasonable efforts to protect and control access to Client Content hosted as part of the Managed Services. However, Client will be responsible for the creation and protection of its username and password for accessing the Granicus Solution. 7.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GRANICUS' SERVICES, SOFTWARE AND DELIVERABLES ARE PROVIDED "AS IS" AND GRANICUS EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. GRANICUS DOES NOT WARRANT THAT ACCESS TO OR USE OF ITS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IN THE EVENT OF ANY INTERRUPTION, GRANICUS' SOLE OBLIGATION SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO RESTORE ACCESS. 7.3 Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRANICUS AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING BUT NOT LIMITED TO: THOSE ARISING OUT OF ACCESS TO OR INABILITY TO ACCESS THE SERVICES, SOFTWARE, CONTENT, OR RELATED TECHNICAL SUPPORT; DAMAGES OR COSTS RELATING TO THE LOSS OF: PROFITS OR REVENUES, GOODWILL, DATA (INCLUDING LOSS OF USE OR OF DATA, LOSS OR INACCURACY OR CORRUPTION OF DATA); OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF THE FAILURE OF ANY EXCLUSIVE REMEDY. IN NO EVENT WILL GRANICUS' AND ITS SUPPLIERS' AND LICENSORS' LIABILITY EXCEED THE AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF THE CLAIM (INCLUDING WITHOUT LIMITATION, ANY CONTRACT, PRODUCT LIABILITY, OR TORT CLAIM (INCLUDING NEGLIGENCE), STATUTORY OR OTHERWISE). GRANICUs, INC. SERVICE AGREEMENT 5 Version 4.1.3 CONFIDENTIAL INFORMATION & OWNERSHIP. 8.1 Confidentiality Obligations. Each party agrees to keep confidential and not disclose to any third parry, and to use only for purposes of performing or as otherwise permitted under this Agreement, any Confidential Information. The receiving party shall protect the Confidential Information using measures similar to those it takes to protect its own confidential and proprietary information of a similar nature but not less than reasonable measures. Each parry agrees not to disclose the Confidential Information to any of its Representatives except those who are required to have the Confidential Information in connection with this Agreement and then only if such Representative is either subject to a written confidentiality agreement or otherwise subject to fiduciary obligations of confidentiality that cover the confidential treatment of the Confidential Information. 8.2 Exceptions. The obligations of this Section 8 shall not apply with respect to any particular portion of the Confidential Information if receiving parry can prove by appropriate documentation that such Confidential Information (i) was known to the receiving party as shown by the receiving party's files at the time of disclosure thereof, (ii) was already in the public domain at the time of the disclosure thereof, (iii) entered the public domain through no action of the receiving parry subsequent to the time of the disclosure thereof, or (iv) is required by law or government order to be disclosed by the receiving party, provided that the receiving parry shall (i) notify the disclosing parry in writing of such required disclosure as soon as reasonably possible prior to such disclosure, (ii) cooperate with the disclosing party in its effort to cause such disclosed Confidential Information to be treated by such governmental authority as trade secrets and as confidential, and (iii) cooperate with the disclosing parry in its effort to obtain such other protective orders and protections with respect thereto as the disclosing party may reasonably request. Granicus acknowledges that Client is subject to the California Public Records Act and agrees to assume all expenses of defending a court action under that Act, including attorneys' fees, if the Client determines that Confidential Information from Granicus is exempt from disclosure under that Act and a court action is filed challenging that determination. 8.3 Contract Use Disclosure. The terms and conditions of this Agreement may be used by either party to disclose the terms and conditions to other local agencies in an effort to exhibit the following: the terms and conditions as fair and reasonable, or to determine the best value, or for marketing purposes, or to further business development. 9. DISCLOSURE OF AGREEMENT; INTERLOCAL ARRANGEMENTS. 9.1 Disclosure of Agreement Terms. The terms and conditions of this Agreement may be disclosed by either parry to other public agencies for the purpose of such other agencies purchasing services under this Agreement pursuant to an interlocal or cooperative arrangement with Client. In addition, Granicus may disclose the terms and conditions of this Agreement in an effort to show that the terms offered to another public agency are fair and reasonable or to determine the best value. It is understood that Granicus shall not be precluded from disclosing the terms and conditions of its form of Service Agreement to any other third party at Granicus' sole discretion and for any reason. 9.2 Included Parties; Interlocal Agreement. Pursuant to any interlocal, intergovernmental, or other such cooperative agreement with Client, Granicus will accept orders from, and will furnish the Granicus Software, Hardware, Professional Services, and Managed Services as outlined in the Proposal to any governmental agency or other public entity authorized by Client to use the Proposal, based upon substantially the same terms and conditions of this GRANICUs, INC. SERVICE AGREEMENT 6 Version 4.1.3 Agreement, with the exception of price schedules. [Please insert the agencies with which you have Interlocal Agreements with here] 9.3 Political Subdivision Participation. Granicus agrees to supply, sell, and contract separately with other similar or related political subdivisions (e.g., colleges, school districts, counties, cities, etc.) of Client, based upon substantially the same terms and conditions of this Agreement, with the exception of price schedules, in an effort to establish the terms and conditions as fair and reasonable. 10. TERM AND TERMINATION. 10.1 Term. The term of this Agreement shall commence on the date hereof and shall continue in full force and effect for eighteen (18) months after the date hereof. This Agreement shall automatically renew for an additional three (3) terms of one (1) year each, unless either party notifies the other in writing at least thirty (30) days prior to such automatic renewal that the party does not wish to renew this Agreement. 10.2 Termination. This Agreement may be terminated, in whole or in part, pursuant to the following terms and conditions: (a) after eighteen (18) months from the Effective Date, at any time by the Client for convenience, upon sixty (60) days prior written notice to Granicus; (b) by either party if the other party materially defaults or breaches this Agreement and fails to cure such default or breach within sixty (60) days following receipt of written notice from the non-breaching party. (c) within the first year of the agreement (12) months from the Effective Date, by the Client for financial reasons, upon ninety (90) days prior written notice to Granicus. Client agrees to pay for up-front implementation services as detailed in the proposal (Exhibit A). 10.3 Ri hg is Upon Termination. Upon any expiration or termination of this Agreement, and unless otherwise expressly provided in an exhibit to this Agreement: (a) Client's right to access or use the Granicus Solution, including Granicus Software, terminates and Granicus has no further obligation to provide any services; (b) Client has the right to keep any purchased Hardware, provided that Client removes and/or uninstalls any Granicus Software on such Hardware; and (c) Client shall immediately return the Granicus Software and all copies thereof to Granicus, and within thirty (30) days of termination, Client shall deliver a written certification to Granicus certifying that it no longer has custody of any copies of the Granicus Software. 10.4 Obligations Upon Termination. Upon any termination of this Agreement, GRANICUs, INC. SERVICE AGREEMENT 7 Version 4.1.3 (a) the parties shall remain responsible for any payments that have become due and owing up to the effective date of termination; (b) the provisions of Sections 2.1, 2.4, 2.5, 4, 5, 6, 7.2, 7.3, 8, 9.1, 10.4, 11, 12 and 13 hereof, and applicable provisions of the Exhibits intended to survive, shall survive termination of this Agreement and continue in full force and effect; (c) pursuant to the Termination or Expiration Options Regarding Content attached as Exhibit E, Granicus shall allow the Client limited access to the Client's Content, including, but not limited to, all video recordings, timestamps, indices, and cross- referenced documentation. The Client shall also have the option to order hard copies of the Content in the form of compact discs or other equivalent format; and (d) Granicus has the right to delete Content within sixty (60) days of the expiration or termination of this Agreement. 11. PATENT. COPYRIGHT AND TRADE SECRET INFRINGEMENT. 11.1 Intellectual Property Indemnity. Subject to the terms and conditions of this Agreement, Granicus will defend any suit brought by a third party against Client to the extent based on a claim that the Granicus Software infringes any United States patent, copyright, trade secret or trademark, and Granicus will pay any final judgment rendered on, or settlement agreed to in writing by Granicus with respect to, such claim. Notwithstanding any other provision of this Agreement, Granicus shall pay all costs associated with defending any such suit. These obligations are contingent upon Client promptly notifying Granicus in writing of any claims or threatened claims, Granicus having sole control over the defense and all negotiations for settlement of any such claim, and Client giving all reasonable assistance to Granicus in the defense and settlement of the claim. These obligations are further subject to Client being in compliance with its payment obligations under this Agreement. Granicus will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED. 11.2 Granicus' Options. If the Granicus Software becomes, or in Granicus' opinion is likely to become, the subject of an infringement claim, Granicus may, at its option and sole discretion, (i) obtain for Client the right to continue to use the Granicus Software as provided in this Agreement; (ii) replace the Granicus Software with another software product that provides similar functionality; or (iii) if Granicus determines that neither of the foregoing options are reasonably available, Granicus may cease providing the applicable services or require that Client cease use of and destroy the Granicus Software. In that event, and provided that Client returns or destroys (and certify to such destruction of) all copies of the Granicus Software in Client's possession or control, if any, Granicus will refund to Client all license fees paid by Client under the current Agreement. 11.3 Limitations of Indemnity. Granicus' obligations under Section 11 do not apply to any claims, damages or liabilities arising out of or relating to any of the following ("Excluded Claims"): (i) the combination of the Granicus Software with any other software, products, hardware, component, process or material not obtained from Granicus; (ii) any modification to the Granicus Software (unless made by Granicus) if the alleged infringement arises from such modification; (iii) use of the Granicus Software in a manner not permitted by or in breach of this Agreement; (iv) Client's failure to use replacement or modified Granicus Software that provides substantially similar functionality as the original Granicus Software and the replacement or GRANmcus, INc. SERVICE AGREEMENT 8 Version 4.1.3 modified Granicus Software would have rendered the Granicus Software noninfringing; or (v) Granicus' compliance with Client's instructions, specifications or requirements. Client will indemnify and hold harmless Granicus with respect to any and all Excluded Claims. 12. MISCELLANEOUS. 12.1 Insurance Requirements. Granicus understands and agrees to comply with the standards and requirements that Client has set forth in the Insurance Requirements listed in Exhibit F. 12.2 Export Restrictions. The parties will comply with all applicable laws, rules and regulations, including export laws, in its performance under this Agreement. In particular, Client acknowledges and agrees that the Granicus Software and other materials provided by Granicus are subject to regulation by U.S. Government agencies and other governmental authorities, and Client agrees not to directly or indirectly export, re-export or import any such materials without first obtaining all required licenses and permissions. 12.3 Assigmnent; Successors and Assigns. Neither this Agreement nor any rights or obligations herein may be assigned by either party, by operation of law or otherwise, without the written consent of the other party; provided, however, that, without the consent of the Client, Granicus may assign this Agreement in connection with a merger, consolidation, assignment, sale or other disposition of the majority of Granicus' stock or substantially all of the assets or business relating to the portion of Granicus' operations that is the subject of this Agreement. This Agreement shall be binding on and inure to the benefit of the parties hereto and their heirs, legal representatives, successors and permitted assigns. 12.4 Amendment and Waiver. This Agreement may be amended, modified, waived or canceled only in writing signed by each of the parties hereto or, in the case of a waiver, by the party waiving compliance. Any failure by either parry to strictly enforce any provision of this Agreement will not be a waiver of that provision or any further default. 12.5 Governing Law. The laws of the State of California shall govern the validity, construction, and performance of this Agreement, without regard to its conflict of law principles. Except for actions for injunctive relief relating to proprietary rights or enforcement or recognition of any award or order in any appropriate jurisdiction, actions relating to this Agreement shall be brought in the state or federal courts located in and serving Mendocino County, California. Each of the parties consents to the personal and exclusive jurisdiction of that court for this purpose. 12.6 Construction and Severability. Wherever possible, each provision of this Agreement shall be interpreted so that it is valid under applicable law. If any provision of this Agreement is held illegal or unenforceable, that provision will be reformed only to the extent necessary to make the provision legal and enforceable; all remaining provisions continue in full force and effect. 12.7 Independent Contractors. The parties are independent contractors, and no other relationship is intended by this Agreement. 12.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same instrument. GR kmcus, INC. SERVICE AGREEMENT 9 Version 4.1.3 12.9 Entire Agreement. This Agreement, including the Proposal attached as Exhibit A, and other applicable exhibits (which may include the Contact Information attached as Exhibit B, the Hardware Exhibit attached as Exhibit C, the Trademark Information listed in Exhibit D, the Termination or Expiration Options Regarding Content provided in Exhibit E, and the Insurance Requirements listed in Exhibit F), is the entire agreement of the parties and replaces any other understandings or agreements (whether oral or written) between the parties regarding the subject matter of this Agreement. 12.10 Notices. All notices and other communications required or permitted under this Agreement must be in writing and hand delivered or sent by registered first-class mail, postage prepaid or by overnight courier service. Such notices or other communications shall be effective upon receipt if hand delivered, and ten (10) business days after mailing (or, for overnight courier, the number indicated in the mailing instructions) if sent, in the case of the Client, to the address set forth below and, in the case of Granicus, to its principal executive offices to the attention of the Chief Executive Officer, or at such other address for a party as may be specified by like notice. 12.11 Force Majeure. Other than payment obligations, neither party is responsible for any delay or failure in performance if caused by any event outside the reasonable control of the party, including without limitation acts of God, government regulations, shortage of supplies, act of war, act of terrorism, earthquake, or electrical, internet or telecommunications outage. 13. DEFINITIONS. In addition to the capitalized terms otherwise defined herein, the following additional capitalized terms shall have the meanings set forth below: 13.1 "Agreement" shall mean this Service Agreement. 13.2 "Client" shall mean the City of Ukiah. 13.3 "Client Use" shall mean any public streaming, document posting, podcasting, or internal streaming that is not for system testing or validation purposes by Client. 13.4 "Client Website" shall mean the Client's existing website. 13.5 "Confidential Information" shall mean all proprietary or confidential information disclosed or made available by the other party pursuant to this Agreement that is identified as confidential or proprietary at the time of disclosure or is of a nature that should reasonably be considered to be confidential, and includes but is not limited to the terms and conditions of this Agreement, and all business, technical and other information (including without limitation, all product, services, financial, marketing, engineering, research and development information, product specifications, technical data, data sheets, software, inventions, processes, training manuals, know-how and any other information or material), disclosed from time to time by the disclosing party to the receiving party, directly or indirectly in any manner whatsoever (including without limitation, in writing, orally, electronically, or by inspection); provided, however, that Confidential Information shall not include the Content that is to be published on the website(s) of Client. 13.6 "Content" shall mean any and all, documents, graphics, video, audio, images, sounds and other content that is streamed or otherwise transmitted or provided by, or on behalf of, the Client to Granicus. GRANicus, INC. SERVICE AGREEMENT 10 Version 4.1.3 13.7 "Granicus" shall mean Granicus, Inc. 13.8 "Granicus Solution" shall mean the Solution detailed in the Proposal, which may include Granicus Software, Installation and Training, Managed Services, and Hardware, as specified in Exhibit A. 13.9 "Granicus Software" shall mean all software included with the Granicus Solution as specified in the attached Proposal that may include but is not limited to: MediaManagefrm (includes Uploader, Software Development Kit, CD Creator, and Podcasting Services), MinutesMakerTM (includes LiveManager), MobileEncodefrm, VotingSystemTM (includes Public Vote Display and MeetingMember), OutCastTM Encoder (includes Meeting Server), StreamReplicatofrm, and MediaVaultTM, or suite bundles such as: Government Transparency, Meeting Efficiency, Legislative Management, Citizen Participation, or Training Management. 13.10 "Hardware" shall mean the equipment components of the Granicus Solution, as listed in Exhibit A. 13.11 "Install" shall mean a single instance in which the software is set up and prepared for use with the Granicus Solution. 13.12 "License Fee" shall mean the total cost of the Granicus Software product, as specified in Exhibit A. 13.13 "Managed Services" shall mean the services provided by Granicus to Client for bandwidth usage associated with live and archived Internet streaming, data storage, and Granicus Solution maintenance, upgrades, parts, Client support services, and system monitoring, as detailed in the Proposal attached as Exhibit A. 13.14 "Managed Services Fee" shall mean the monthly cost of the Managed Services, as specified in Exhibit A. 13.15 "Meeting Body" shall mean a unique board, commission, agency, or council body comprised of appointed or elected officials that meet in a public capacity with the objective of performing decisions through a democratic voting process (typically following Robert's Rules of Order). Two or more Meeting Bodies may be comprised of some or all of the same members or officials but may still be considered separate and unique Meeting Bodies at Granicus' sole discretion. For example, committees, subcommittees, city councils, planning commissions, parks and recreation departments, boards of supervisors, school boards/districts, and redevelopment agencies may be considered separate and unique individual Meeting Bodies at Granicus' sole discretion. 13.16 "Phase 1 Training" shall mean the MediaManager portion of Client training, performed either online or in-person. Once a Client Representative has received Phase 1 Training, that representative will be recognized in Granicus' internal system as qualified to receive support and ongoing education services. 13.17 "Professional Services" shall mean the installation, design, website and template integration, and training obligations as detailed in the Proposal. 13.18 "Representatives" shall mean the officers, directors, employees, agents, attorneys, accountants, financial advisors and other representatives of a party. GRAmcus, INC. SERVICE AGREEMENT 11 Version 4.1.3 13.19 "Site" shall mean an organization that is governed by a single set of policy and budgetary restraints. For example, a city and its school district are considered separate Sites. Exceptions may be granted at Granicus' sole discretion. 13.20 "Trademarks" shall mean all trademarks, trade names and logos of Client listed on Exhibit D attached hereto, and any other trademarks, trade names and logos that Client may specify in writing to Granicus from time to time. GRANicus, INc. SERVICE AGREEMENT 12 Version 4.1.3 This Agreement consists of this Service Agreement as well as the following exhibits, as indicated: Exhibit A: Proposal Exhibit B: Support Information Exhibit C: Hardware Exhibit Exhibit D: Trademark Information Exhibit E: Termination or Expiration Options Regarding Content Exhibit F: Insurance Requirements GRANICUS, INC. By: Thomas A. Spengler Its: Chief Executive Officer Address: 568 Howard Street, Suite 300 San Francisco, CA 94105 CITY By: Name: Its: Address: Date: - 1 CD GRANicus, INC. SERVICE AGREEMENT 13 Version 4.1.3 EXHIBIT A PROPOSAL [The remainder of this page is left blank intentionally.] GRANicus, INC. SERVICE AGREEMENT-PROPOSAL A-1 Version 4.1.3 EXHIBIT B SUPPORT INFORMATION 1. Contact Information. The support staff at Granicus may be contacted by the Client at its mailing address, general and support-only telephone numbers, and via e-mail or the Internet. (a) Mailing; Address. Mail may be sent to the support staff at Granicus headquarters, located at 568 Howard Street, Suite 300, San Francisco, California, 94105. (b) Telephone Numbers. Office staff may be reached from 8:00 AM to 7:00 PM Pacific time at (415) 357-3618 or toll-free at (877) 889-5495. The technical support staff may be reached at (415) 655-2400 from 8:00 AM to 7:00 PM Pacific time. After hours or in case of a technical support emergency, the support staff may be reached at (415) 655-2414, twenty-four (24) hours a day, seven (7) days a week. (c) Internet and E-mail Contact Information. The website for Granicus is hqp://www.granicus.com. E-mail may be sent to the support staff at support@granicus.com. 2. Recognized Client Representatives. Granicus strives to provide unparalleled support to its Clients by ensuring that Client staff is properly educated and is prepared to maximize its Granicus Solution. Any Client Representative who wishes to participate and receive Granicus customer advocacy services shall participate in and complete the training program that is suited for the Granicus Solution. Once a Client Representative completes the training, that Representative will be recognized in Granicus' internal system as qualified to receive support and ongoing education services. All Client Representatives are eligible to receive technical support services, regardless of participation in the training program. 3. Support Policy. When Granicus received notification of an issue from Client, a Granicus account manager or technical support engineer will respond directly to the Client via phone or e- mail with (a) an assessment of the issue, (b) an estimated time for resolution, and (c) will be actively working to resolve the issue as appropriate for the type of issue. Notification shall be the documented time that Granicus receives the Client's call or e-mail notifying Granicus of an issue or the documented time that Granicus notifies Client there is an issue. Granicus reserves the right to modify its support and maintenance policies, as applicable to its customers and licensees generally, from time to time, upon reasonable notice. 4. Scheduled Maintenance. Scheduled maintenance of the Granicus Solution will not be counted as downtime. Granicus will clearly post that the site is down for maintenance and the expected duration of the maintenance. Granicus will provide the Client with at least two (2) days prior notice for any scheduled maintenance. All system maintenance will only be performed during these times, except in the case of an emergency. In the case that emergency maintenance is required, the Client will be provided as much advance notice, if any, as possible under the circumstances. 5. Software Enhancements or Modifications. The Client may, from time to time, request that Granicus incorporate certain features, enhancements or modifications into the licensed Granicus GRAmcus, INC. SERVICE AGREEMENT - SLA B-1 Version 4.1.3 Software. Subject to the terms and conditions to this exhibit and the Service Agreement, Granicus and Client will use commercially reasonable efforts to perform all tasks in the Statement of Work ("SOW"). Upon the Client's request for such enhancements/modifications, the Client shall prepare a SOW for the specific project that shall define in detail the Services to be performed. Each such SOW signed by both parties is deemed incorporated in this exhibit by reference. Granicus shall submit a cost proposal including all costs pertaining to furnishing the Client with the enhancements/modifications. 5.1 Documentation. After the SOW has been executed by each party, a detailed requirements and detailed design document shall be submitted illustrating the complete financial terms that govern the SOW, proposed project staffmg, anticipated project schedule, and other information relevant to the project. Such enhancements or modifications shall become part of the licensed Granicus Software. 5.2 Acceptance. Client understands that all work contemplated by this exhibit is on a "time-and-materials" basis unless otherwise stated in the SOW. Within ten (10) business days of Granicus' completion of the milestones specified in the SOW and delivery of the applicable enhancement/modification to Client, Client will provide Granicus with written notice of its acceptance or rejection of the enhancement/modification, based on the acceptance criteria set forth in the SOW. Client agrees that it will not reject any enhancement/modification so long as it substantially complies with the acceptance criteria. 5.3 Title to Modifications. All such modifications or enhancements shall be the sole property of the Granicus. 6. Limitation of Liability; Exclusive Remedy. IN THE EVENT OF ANY INTERRUPTION, GRANICUS' SOLE OBLIGATION, AND CLIENT'S EXCLUSIVE REMEDY, SHALL BE FOR GRANICUS TO USE COMMERCIALLY REASONABLE EFFORTS TO RESTORE ACCESS AS SOON AS REASONABLY POSSIBLE. [End of Support Information] GRAmcus, INC. SERVICE AGREEMENT - SLA B-2 Version 4.1.3 EXHIBIT C GRANICUS, INC. HARDWARE EXHIBIT THIS HARDWARE EXHIBIT is entered into by Granicus and Client, as an attachment to the Service Agreement between Granicus and Client, for the sale of the hardware components of the Granicus Solution (the "Hardware") by Granicus to Client. This exhibit is an additional part of the Service Agreement and is incorporated therein by reference. This exhibit does not change any term of the Service Agreement except to the extent it is contrary to the Service Agreement. Capitalized terms used but not defined in this exhibit have the meanings given in the Service Agreement. 1. Purchase Price. The purchase price for the Hardware shall be the price specified in the Proposal. 2. Title and Delivery. Any scheduled ship date quoted is approximate and not the essence of this exhibit. Delivery is F.O.B. Granicus' point of shipment. Granicus will select the shipment method unless otherwise mutually agreed in writing. The risk of loss passes to Client upon delivery to the carrier at Granicus' point of shipment. Granicus retains title to the Hardware until Granicus has received payment in full of all sums due pursuant to this exhibit. Granicus retains title to and ownership of all Granicus Software installed by Granicus on the Hardware, notwithstanding the use of the term "sale" or "purchase." 3. Acceptance. Use of the Hardware by Client, its agents, employees or licensees, or the failure by Client to reject the Hardware within fifteen (15) days following delivery of the Hardware, constitutes Client's acceptance. Client may only reject the Hardware if the Hardware does not conform to the applicable written specifications. 4. Hardware Warranty. Granicus will provide to Client any warranty provided by the manufacturer with respect to the Hardware. Granicus shall repair or replace any Hardware provided directly from Granicus that fails to function properly due to normal wear and tear, defective workmanship, or defective materials as long as such Hardware is then under the manufacturer's warranty. 5. Service Response Time. For hardware issues requiring replacement, Granicus shall respond (via written or verbal acknowledgment) to the request made by the Client within twenty- four (24) hours. Hardware service repair or replacement will occur within seventy-two (72) hours of the request by the Client, not including the time it takes for the part to ship and travel to the Client. The Client shall grant Granicus or its Representatives access to the Hardware for the purpose of repair or replacement at reasonable times. Granicus will keep the Client informed regarding the time frame and progress of the repairs or replacements. 6. Use of Non-Approved Hardware. The Granicus platform is designed and rigorously tested based on Granicus-approved hardware. In order to provide the highest level of support, we recommend including Granicus-approved hardware in your solution. However, Granicus does afford clients with the option of utilizing their own hardware, providing that there is successful validation by Granicus technical staff. While it is Granicus' intention to provide clients that use their own hardware with the same level of customer care and continuous software upgrades, this level of service is not guaranteed. GRANICUS, INC. SERVICE AGREEMENT-HARDWARE C-1 Version 4.1.3 7. DISCLAIMER OF WARRANTIES. NOTWITHSTANDING THE MAINTENANCE PROVIDED UNDER SECTION 4 ABOVE, THE SOLE WARRANTY ON THE HARDWARE IS ANY MANUFACTURER'S WARRANTY AS PROVIDED IN SECTION 1 ABOVE, AND GRANICUS DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY AND AGAINST INFRINGEMENT, WITH RESPECT TO THE HARDWARE. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF GRANICUS. 8. LIMITATION OF LIABILITY. GRANICUS SHALL NOT BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS EXHIBIT INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF GRANICUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. IN NO EVENT WILL GRANICUS' LIABILITY TO CLIENT ARISING OUT OF OR RELATING TO THIS EXHIBIT EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID TO GRANICUS BY CLIENT FOR THE HARDWARE. [end of Hardware Exhibit] GRANICUS, INC. SERVICE AGREEMENT-HARDWARE C-2 Version 4.1.3 EXHIBIT D TRADEMARK INFORMATION Granicus Registered Trademarks granicus Granicus logo as a mark Granicus MediaVaulto Mobile Encoder Outcast Encoder StreamReplicator Granicus Trademark Names TM Integrated Public Record'" Intelligent Routing'm LinkedMinutesTM LiveManagerTm MediaCenter' MediaManagerTM MeetingMember MeetingServerTM Simulcast Encoder' VoteCasim VoteCasf Classic VoteCasC Touch Client Trademarks GRAmcus, INC. SERVICE AGREEMENT-TRADEMARK D-1 Version 4.1.3 EXHIBIT E TERMINATION OR EXPIRATION OPTIONS REGARDING CONTENT In case of termination by Client or expiration of the Service Agreement, Granicus and the Client shall work together to provide the Client with a copy of its Content. The Client shall have the option to choose one (1) of the following methods to obtain a copy of its Content: Option 1: Video files on DVR and a compact disc (CD) that contains the index and clip name data in CSV or XML format will be created and sent to the Client. This option may result in an additional charge to Client. Option 2: Provide the Content via download from MediaManager or from a special site created by Granicus. This option shall be provided free of charge. Option 3: Granicus shall provide the means to pull the content from the MediaVault in CSV or XML format. This option shall be provided free of charge. The Client and Granicus shall work together and make their best efforts to transfer the Content within the sixty (60) day termination period. Granicus has the right to delete Content from its services after sixty (60) days. GRAmcus, INC. SERVICE AGREEMENT-TERMINATION E-1 Version 4.1.3 EXHIBIT F INSURANCE REQUIREMENTS GRANICUs, INC. SERVICE AGREEMENT- INSURANCE F-1 Version 4.1.3