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Home My WebLink AboutContract DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B � IT1� � � . � � . � . SOFTWARE AS A SERVICE AN D PROFESSIONAL SERVICES AGREEMENT WITH PERFECTMIND, INC . CAG - 1�-222 THIS AGREEMENT, dated November 26 , 2017, is by and between the City of Renton (the "Customer"), a Washington municipal corporation, and PerfectMlND, Inc. ("PerfectMlND"), a British Columbia, Canada corporation . Customer and PerfectMlND are referred to collectively in this Agreement as the "parties." Once fully executed by the parties, this Agreement is effective as of the last date signed by both parties. 1. Scope of Work: PerfectMlND agrees to provide the services specified in Attachment 1, which is attached and incorporated herein by reference. 2. Changes in Scope of Work: Changes in the scope of work under this Agreement shall be effectuated as set forth in Attachment 1. 3. Time of Performance: PerfectMlND shall perform work under the Agreement pursuant to the schedule(s) set forth in Attachment 1. 4. Compensation : A. Amount. The amount of compensation under this Agreement shall be as set forth in Attachment 1. 6. Method of Payment. on completion of each deliverable/milestone by PerfectMlND and its acceptance and execution of the relevant acceptance by Customer, PerfectMlND shall submit a voucher or invoice in a form specified by Customer, including a description of what work has been performed. Customer shall also submit a final bill upon completion of all work. Payment shall be made by Customer for work performed within thirty (30) calendar days after receipt by the appropriate Customer representative of the voucher or invoice. If PerfectMlND's performance does not meet the requirements of this Agreement, PerfectMlND will correct or modify its performance to comply with the Agreement. Customer may withhold payment for work that does not meet the requirements of this Agreement and which Customer has not accepted . DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B C. Effect of Payment. Payment for any part PerfectMlND's work shall not constitute a waiver by Customer of any remedies it may have against Customer for failure of PerfectMlND to perform the work or for any breach of this Agreement by PerfectMlND. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, Customer shall not be obligated to make payments for work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining work for which funds are allocated. No penalty or expense shall accrue to Customer in the event this provision applies. 5. Termination : This Agreement shall terminate as set forth in Attachment 1. 6. Warranties And Right To Use Work Product: [Intentionally omitted .] 7. Record Maintenance: PerfectMlND shall maintain accounts and records, which properly reflect and the fees charged for the work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. PerfectMlND agrees to provide access to and copies of any records related to this Agreement as required by Customer to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW) (the Public Records Act), provided that any audit or inspection shall be performed on no less than 30 days prior written notice to PerfectMlND, during PerfectMlND's normal business hours and with minimal disruption to PerfectMlND's business, and there shall be no more than one audit per any 12 month period . The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent Customer determines necessary to comply with the Public Records Act, PerfectMlND shall make a due diligent search of all records in its possession or control relating to this Agreement and the work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to Customer for production . In the event PerfectMlND believes said records need to be protected from disclosure, it may, at PerfectMlND's own expense, seek judicial protection . PerfectMlND shall indemnify, defend, and hold harmless Customer for all costs, including attorneys' fees, attendant to any claim or litigation related to a Public Records Act request for which PerfectMlND has responsive records and for which PerfectMlND has withheld records or information contained therein, or not provided them to Customer in a timely manner. PerfectMlND shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. _�- t �-� �� , Page2of8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B 9. Independent Contractor Relationship: [Intentionally omitted .] 10. Hold Harmless: [Intentionally omitted .] 11. Gifts and Conflicts: Customer's Code of Ethics and Washington State law prohibit Customer's employees from soliciting, accepting, or receiving any gift, gratuity or favor from any person, firm or corporation involved in a contract or transaction . To ensure compliance with Customer's Code of Ethics and state law, PerfectMlND shall not give a gift of any kind to Customer's employees or officials. PerfectMlND also confirms that PerfectMlND does not have a business interest or a close family relationship with any of Customer's officers or employees who were, are, or will be involved in selecting PerfectMlND, negotiating or administering this Agreement, or evaluating PerfectMlND's performance undertheAgreement. 12. City of Renton Business License: PerfectMlND shall obtain a City of Renton Business License prior to performing any work and maintain the business license in good standing throughout the term of this agreement with Customer. Information regarding acquiring a city business license can be found at: http://rentonwa .�ov/busi ness/defau It.aspx?id=548&m id=328. Information regarding State business licensing requirements can be found at: http://dor.wa.�ov/doin�-business/re�ister-my-business 13. Insurance: PerfectMlND shall secure and maintain : A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the term of this Agreement. 6. In the event that work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability, Errors and Omissions coverage shall be provided with minimum limits of $1,000,000. " Professional Services", for the purpose of this section only, shall mean any work provided by a licensed professional or work that requires a professional standard of care. C. Workers' compensation coverage, in accordance with all the statutory requirements of the Province of British Columbia, Canada, relating to worker's compensation insurance. PerfectMlND represents and warrants that its employees who will perform work under this Agreement will have coverage under PerfectMlND's worker's compensation insurance while working in the State of Washington, and PerfectMlND covenants that it will continue to meet all the statutory requirements for maintaining such coverage. _�- t �-� �� , Page3of8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of PerfectMlND's vehicles on Customer's premises by or on behalf of Customer, beyond normal commutes. E. PerfectMlND shall name the City of Renton as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. Customer's insurance policies shall not be a source for payment of any PerfectMlND liability, nor shall the maintenance of any insurance required by this Agreement be construed to limit the liability of PerfectMlND to the coverage provided by such insurance or otherwise limit Customer's recourse to any remedy available at law or in equity. F. Subject to Customer's review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to Customer before performing the work. G. PerfectMlND shall provide Customer with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 14. Dela s: [Intentionally omitted .] 15. Successors and Assigns: [Intentionally omitted .] 16. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission . Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON PERFECTMIND Kelly Beymer, Administrator Vahid Shababi, Community Services Department VP of Sales and Marketing 1055 South Grady Way PerfectMIND Inc. Renton, WA 98057 2nd Floor, 4333 Canada Way Phone: (425) 430-6617 Burnaby, British Columbia VSC 6S kbeymer@rentonwa.gov Phone: 1(877)737-8030 x6715 vahid.shababi� perfectmind.com Fax: 1(855)615-5253 _�- f �_:� �� , Page 4 of 8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B 17. Discrimination Prohibited : Except to the extent permitted by a bona fide occupational qualification, PerfectMlND agrees as follows: A. PerfectMlND, and PerfectMlND's agents, employees, representatives, and volunteers with regard to the work performed or to be performed under this Agreement, shall not discriminate on the basis ofKe race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring a nd employment, in employment or application for employment, the administration of the delivery of work or any other benefits under this Agreement, or procurement of materials or supplies. 6. PerfectMlND will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If PerfectMlND fails to comply with any of this Agreement's non-discrimination provisions, Customer shall have the right, at its option, to cancel the Agreement in whole or in part. D. PerfectMlND is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 18. Miscellaneous: The parties hereby acknowledge: A. PerfectMlND shall furnish all tools and/or materials necessary to perform the work except to the extent specifically agreed within Attachment 1. 6. In the event special training, licensing, or certification is required for PerfectMlND to provide work it will acquire or maintain such at its own expense and, if PerfectMlND employs, sub-contracts, or otherwise assigns the responsibility to perform the work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. _�- t.�-�� , Page5of8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B C. This is a non-exclusive agreement and PerfectMlND is free to provide its work to other entities, so long as there is no interruption or interference with the provision of work called for in this Agreement. D. PerfectMlND is responsible for its own insurance, including, but not limited to health insurance. E. PerfectMlND is responsible for its own Worker's Compensation coverage as well as that for any persons employed by PerfectMlND. 19. Other Provisions: A. Approval Authority. Each individual executing this Agreement on behalf of Customer and PerfectMlND represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of Customer or PerfectMlND. 6. General Administration and Mana�ement. Customer's project manager is Kevin Trinh . In providing work, PerfectMlND shall coordinate with Customer's contract manager or his/her designee. C. Amendment and Modification . This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Attachment 1 and its exhibits and the body of this Agreement, the terms of this Agreement shall prevail. To the extent a PerfectMlND prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein . E. Governin� Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton . PerfectMlND and all of PerfectMlND's employees shall perform the work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Draftin� Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution . G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought i n the _�- t �-� �� , Page 6 of 8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. H . Severability. A court of competent jurisdiction's determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I . Sole and Entire A�reement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded . J . Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the work is essential to PerfectMlND's performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Bindin� Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M . Waivers. All waivers shall be in writing and signed by the waiving party. Either party's failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either Customer or PerfectMlND from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N . Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. [Signatures follow on next page.] _�- f �_:� �� , Page 7 of 8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B CITY OF RENTON PERFECTMIND DocuSigned by: DocuSigned by: By Denis Law - IVlavor By: V hi h i - P rf t Mind ��:�9��r�;A��yo r �'� ��i VP of Sales and Marketing 11/26/2017 � 3 : 03 : 21 PM PST 11/22/2017 � 11 : 53 : 25 AM PST Date Date Attest DocuSigned by: .�ason Seth - C�tv Clerk ��5��... City Clerk Approved as to Legal Form shane Moloney Shane Moloney Renton City Attorney Contract Template Updated 07/19/2017 _� f �► ,- �y � � �, Page 8 of 8 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B ATTACHMENT 1 TO SOFTWARE AS A SERVICE & PROFESSIONAL SERVICES AGREEMENT BETWEEN PERFECTMIND INC. AND CITY OF RENTON DATED: November 17, 2017 TABLE OF CONTENTS PART 1 DEFINITIONS AND INTERPRETATION ...........................................................................................1 PART2 LICENSE ...................................................................................................................................................3 PART 3 PROFESSIONAL SERVICES.................................................................................................................3 PART 4 FEES AND PAYMENTS .........................................................................................................................5 PART 5 USE OF THE PLATFORM .....................................................................................................................7 PART 6 CONTENT, INTELLECTUAL PROPERTY AND PRIVACY .........................................................11 PART 7 TERM AND TERMINATION ..............................................................................................................12 PART 8 CONFIDENTIALITY ............................................................................................................................14 PART 9 WARRANTIES, DISCLAIMERS, INDEMNITIES AND LIABILITY ............................................15 PART10 GENERAL.............................................................................................................................................17 Exhibits: Exhibit A — Platform Use Fees Exhibit B — Statement of Work Exhibit C — PerfectMIND Rates for Professional Services Exhibit D — Service Levels Exhibit E — Platform Features and Functionalities DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B PART 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions. In this Agreement, unless the context otherwise requires, capitalized terms will have the meaning assigned to them herein, including the following: (a) "Account" has the meaning set out in §5.6; (b) "Account-holder" means an individual designated by Customer to whom an Account is issued; (c) "Applicable Laws" means all applicable laws and regulations, including all applicable local, provincial, state, national and foreign laws, treaties and regulations as well as orders of courts or laws, regulations, by-laws or ordinances of applicable governmental agencies; (d) "Claims" means liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever incurred in connection therewith; (e) "Confidential Information" has the meaning set out in §8. 1 ; (� "Content" means all materials and content, including designs, editorials, text, graphics, audiovisual materials, multimedia elements, photographs, videos, music, sound recordings, reports, documents, software, information, formulae, patterns, data and any other work, and "Customer Content" is Content entered, uploaded or inputted into the Platform by or on behalf of Customer; (g) "Customer Data" means information, materials, or data, including Customer Content, entered, uploaded or inputted into the Platform by or on behalf of Customer; (h) "Enhancement" means enhancements, developments, modifications, updates, additions and improvements made to the Platform, other than New Features and Functions; (i) "Force Majeure" means circumstances beyond a party' s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet service provider failures or delays, or hosting service provider failures or delays; (j) "Intellectual Property Rights" means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity, including, without limitation, trade secret law, that may provide a right in works, software, source code, obj ect code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing; (k) "New Features and Functions" means any update, revision, new version, new module or upgrade of the Platform made available by PerfectMIND from time to time (i) that adds new functions or features to the Platform and (ii) for which PerfectMIND charges a fee to its customers in order to obtain same; (1) "PerfectMIND Privacy Policy" means PerfectMIND' s privacy policy made available at http://www.perfectmind.com/academ. /privacY as amended from time to time; (m) "PerfectMIND Technology" means (i) any concepts, inventions, systems, processes, techniques, methodologies, know-how, data, tools, templates, technology (including software in executable code and source code), documentation or any other information, data or materials, and any expressions of the foregoing, developed by, owned by, or licensed to, PerfectMIND ; and (ii) the Work Product; (n) "Permitted Purpose" means managing and operating Customer's facilities located in the City of , , including customer relationship management, facility bookings, membership sales, point of sale transaction processing and scheduling; (o) "Platform" means the software and supporting hardware platform known as "PerfectMIND" that is owned and operated by PerfectMIND, and that will be made available to Customer as a service under this Agreement via a designated website or websites as may be designated by PerfectMIND, from time to time, together with the related documentation, Content (other than Customer Content and Customer Data) and end user materials delivered therewith; (p) "Professional Services" has the meaning set out in §3 . 1 ; (q) "Statement of Work" has the meaning set out in §3 . 1 ; (r) "Term" has the meaning set out in §7. 1 ; and (s) "Work Product" means all improvements, enhancements and derivatives thereto developed by PerfectMIND for the purposes of providing the Professional Services under this Agreement or otherwise and any and all other work products developed by PerfectMIND for the purposes of providing the Professional Services under this Agreement. 1.2 Interpretation. In this Agreement, unless expressly stated otherwise or the context otherwise requires, (a) headings and captions are for convenience only and will not be deemed to explain, limit or modify the provisions hereof, (b) the word "including", when following a general statement or term, is not to be construed as limiting the general statement or term (whether or not used in connection with phrases such as "without limitation" or "but not limited to") and the word "or", when connecting two or more matters, will not imply an exclusive relationship between the matters, (c) a reference to a "person" or "entity" means an individual, corporation, body corporate, firm, limited liability company, partnership, syndicate, j oint venture, society, association, trust or unincorporated organization or governmental authority or trustee, executor, administrator or other legal representative, including any successor to that 2 DocuSign Envelope ID: AC7BD1 B7-F503-432E-8AOD-DBD342E8EA3B person, (d) a word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa, (e) words, phrases and acronyms not otherwise defined herein that have a meaning commonly understood and accepted by persons familiar with the Internet and computing services professionals will be interpreted and understood to have that meaning herein, and (� in the event of any conflict or inconsistency between the terms of this Attachment 1 and the terms of the Exhibits hereto, the terms of the Exhibits hereto will prevail to the extent necessary to resolve such conflict or inconsistency. PART 2 LICENSE 2.1 License. PerfectMIND grants to Customer a non-exclusive, non-transferable, right and limited license, only during the Term, to access and use the Platform for the Permitted Purposes only. All rights not expressly granted to Customer are reserved by PerfectMIND and, if applicable, its licensors. 2.2 Complete Software; Enhancements. Upon completion of the Professional Services described in the Statement of Work attached hereto as Exhibit B, the Platform with the features and functionalities described in Exhibit E hereto will be configured and made available to Customer for access and use by Account-holders. Customer agrees that its entry into this Agreement is not contingent on the delivery of any future functionality or features by PerfectMIND. PerfectMIND may, from time to time and its sole discretion, update the Platform (including the underlying server software or hardware) or otherwise offer Enhancements, which Enhancements will form part of the Platform being licensed and provided hereunder without further payment by Customer. PerfectMIND will use commercially reasonable efforts to (a) ensure that such Enhancements are compatible with and will not adversely affect or reduce the functionality, performance, availability and accessibility of the Platform, and (b) to the extent that such Enhancements do so adversely affect the Platform and Customer notifies PerfectMIND of same, restore or reinstate the Platform or parts of it causing the adverse effects to its or their status prior to the Enhancement, as soon as may be reasonable and practicable in the circumstances. Notwithstanding any Enhancements or other changes to the Platform, PerfectMIND will maintain the functionality of the Platform so it is always materially equal to or better than the functionality of the Platform as of the date that Customer first commences using the Platform. 2.3 New Features and Functions. PerfectMIND may, from time to time and in its sole discretion, develop and offer New Features and Functions that will not form part of the Platform licensed hereunder and may be provided and licensed separately to Customer for an additional fee. For clarity, in no event will PerfectMIND be obligated to provide any New Features and Functions free of charge. PART 3 PROFESSIONAL SERVICES 3.1 Professional Services. Customer may, from time to time, request PerfectMIND to provide customization and deployment services and other related professional services in relation to Customer' s use of the Platform (the "Professional Services") and PerfectMIND may, 3