HomeMy WebLinkAboutIT18-233 - Original - PageFreezer Software, Inc. - WA State Compliance Bundle & Setup- 01/13/2017 ... Records Management, Document
CONTRACT COVER SKEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253-856-5725.
❑ Blue/Motion Sheet Attached
❑ Pink Sheet Attached
Vendor Name: PageFreezer
Vendor Number (]DE): 1440476
Contract Number (City Clerk): 1$ -7�72y
Category: License Agreement J
Sub-Category (if applicable): Choose an item.
Project Name: WA State Public Records Compliance_Bundle (Web & Social Media)
Contract Execution Date: 02/14/17 Termination Date: 01/12/18
Contract Manager: Curt Ryser Department: IT
Contract Amount: 4�489.50
Approval Authority: ® Director ❑ Mayor ❑ City Council
Other Details:
UPIy�I0 4 l U Pow I3 (0
Page Freezer
Invoice Date iv As seiO7i chinv^ia Ur:
INVOICE 131an 2017
PageFreezer Software,Inc.
City of Kent,Washington Invoice Number Attention:PageFreezer
Attention:Gregg Sconce INV-3223 Software,Inc.
220 Fourth Avenue South 500-311 Water Street
KENT WA 98032 Reference VANCOUVER BC V6B 1B8
USA CANADA
Business Number office(888)916 3999
839583267BC0001 billing@pagefreezer.com
www.pagefreezer.com
riu Vi'Ir - A�rc�au ¢t
i,r•yg, u�P.Gard^r Ga0 r�a;'riis) rI i ri0t.vr7:
Set up and configure the website
and/or social media accounts for daily
archiving;set up user account access 2 500.00 Tax on Sales 200.00
including user names and passwords;
initial troubleshooting and quality
assurance
PageFreezer Washington State Public
Records Compliance Bundle(Web& 12 325.00 Tax on Sales 3,900.00
Social Media)
Subtotal 4,100.00
Total Sales Tax O% 0.00
Invoice Total USD 4,100.00
1 x A/' f Total Net Payments USD 0.00
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Due Date: 12 Feb 2017
Please send cheque to the company address above or pay by bank transfer:
Beneficiary:PageFreezer Software,Inc. Swift code:ROYCCAT2
Bank:RBC Royal Bank,Park Royal Branch Routing/ABA:021000021
672 Park Royal N Bank/Institution#:003
West Vancouver,V7T 1H9 Transit#:09480
BC,Canada Account#:4002903
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Registered Office:500-311 Water Street,Vancouver,BC,V66 188,Canada
PAYMENT ADVICE Customer City of Kent,Washington
Invoice Number INV-3223
To: PageFreezer Software,Inc. Amount Due 4,100,00
Attention:PageFreezer Software,Inc.
500-311 Water Street Due Date 12 Feb 2017
VANCOUVER BC V6B 188 Amount Enclosed
CANADA
Enterthe amount you are paying above
Registered Office:56n-311 water Street,Vancouver,BC,V613 158,Canada
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PageFreezer
City of Kent, Washington
Prepared For
Sconce Gregg
City of Kent
220 4th Avenue South
Kent WA 98032
United States
Created By
Nate Dempsey
PageFreezer Software, Inc.
(604)800 0631
nate@pagefreezer.com
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zi,s,
P"ag eFregezer Order Form
November 28th 2016
Quote: 57477135
Sales person: Nate Dempsey
Email: nate@pagefreezer.com
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PageFreezer-Washington State $325.00 1 $325.00
Public Records Compliance Bundle
(Web &Social Media)
Daily archiving of the foltowing web
donr aln (compliant harvesting,i:
hfltn://www.kertlwa.aov)
Also inclo d", compliant archiving of up to
8 social media accounts. Add-on
accounts may be procured at$5/month
each.
Dally arching will include all content and
attached assets needed to recreate the
page including but not limited to PDFs,
Images,Video, Spreadsheets, Word or
other electronic documents etc. The data
is preserved and retrieved in Its native
format including all metadata.
FINRA, Public Record, SEC and FTC
compliant; compliance with the
Washington State Public Records Act, Ch.
42.56 RCW, Federal Rules of Evidence
(rule 901)compliant;WWsliington State
Rules of Evidence compliant; unlil
data transfer; unlimited data storage;
timeline& replay of all archived sites;
replay through customized Dashboard in
SaaS portal;litigation preparedness;25+5-
bit Digital :signature&tirriestran7p on every
archived file; certified atomic clocks;
loflration hold support; per page PDF
export;change reporting;qua pe dirt
reports;emailed capture notifications;
crawl logs',:one-hop off-domain archiving;
file hierarchy w/linked navigrlalioni
to rnporal navigratfon;,hill text search; on-
demand archiving; user agent support for
multiple browsers, tablet, Android,
Blackberry& iPhone; cookie
marrar,garaoxudnt; real-time archiving; Public
Access feature for sharioayp archives w/3rd
parties or the public;
Total Cost: $200
+$325/Month
Terms & Conditions
This is a quotation on the goods named, subject to the following conditions:
i)All prices in USD and excluding sales tax
ii)PageFreezer Subscription Agreement
iii)36-month agreement with annual payments per year up-front
iv) Recurring annually after initial term until cancellation
v)Cloud data storage in our SSAE-16 compliant data center
I ._ I
PageFreezer Subscription Agreement
THIS SUBSCRIPTION AGREEMENT("AGREEMENT')GOVERNS YOUR PURCHASE AND ONGOING USE OF
PAGEFREEZER SERVICES.
BY ACCEPTING THIS AGREEMENT AND BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT,
YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY,YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY
AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR"YOUR" SHALL
REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE
WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE
SERVICES.
This Agreement was last updated on July 11. 2016. It is effective between You and Us as of the date of(ou are accepting this
Agreement.
1 DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject
entity. "Control,"for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting
interests of the subject entity.
"Malicious Code"means internet or computer viruses, trojan horses, worms,salamis, back doors, logic bombs,time bombs,
cancelbots, malwares,trapdoors, or any other harmful or malicious software codes, computer instructions, programming
routines, or computer routines that may damage, vandalize, subvert,disrupt,disable, detrimentally interfere with, surreptitiously
intercept, shut down or expropriate computer systems including its security data, user data or personal information.
°PageFreezer Services" means the webpage archiving services described in the User Guide.
"Order Form"means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between
You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
'Purchased Services'means Services that You or Your Affiliates purchase under an Order Form.
"Services" means the online,Web-based archival platform and customer support provided by Us for Your Web Sites and social
media accounts via http liwz+ &,PL�QeFreezor.rorxi and/or other designated websites, the features and technical limitations of
which are described in the User Guide.
"User Guide"means the online user guide for the Services, accessible viahttp:Jlsuca Hof q PmayeFYPezeP.cerm, as updated from
time to time.You acknowledge that You have had the opportunity to review the User Guide. The User Guide shall not alter,
modify or amend this Agreement in any way. In the case of a conflict between the language of this Agreement and the
language of the User Guide, the language found in this Agreement shall prevail.
"Web Sites"means world wide web sites which are registered to You or Your affiliates and which have been registered by You
to use the Services and, for whom subscriptions to a Service have been purchased.
'Social Media' means social media network accounts, pages or profiles which are registered to You or Your affiliates and which
have been registered by You to use the Services and,for whom subscriptions to a Service have been purchased
"We,""Us"or"Our"means PageFreezer Software, Inc., a Canadian corporation,the company described in
Article 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You"or"Your" means the company or other legal entity for which you are accepting this Agreement, and
Affiliates of that company or entity.
"Your Data" means all electronic data or information archived for You by the Purchased Services.
2 PURCHASED SERVICES
2.1 Provision of Purchased Services.
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a
subscription term.You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or
features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2 Web Site Subscriptions.
Unless otherwise specified in the applicable Order Form, (i) Services are purchased as Web Site subscriptions, additional Web
Site subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions,
prorated for the remainder of the subscription term in effect at the time the additional Web Site subscriptions are added, and(ii)
the added Web Site subscriptions shall terminate on the same date as the pre-existing subscriptions.Web Site subscriptions
may be reassigned to a new Web Site replacing a former Web Site which no longer requires ongoing use of the Services.
3 USE OF THE SERVICES
3.1 Our Responsibilities.
We shall make the Purchased Services available on a daily basis for each Web Site, except for: planned downtime(of which We
shall give at least 8 hour's notice via the Purchased Services.We will provide the Purchased Services only in accordance with
applicable laws and government regulations.
3.2 PageFreezer Services.
If the Order Form indicates You have purchased the PageFreezer Services,We shall archive and time stamp the Web Site or
Web Sites, or portions thereof, indicated in the Order Form at the frequency specified on the Order Form. As more fully
described in the User Guide, the PageFreezer Services store and back-up the archived data at Our data center. During the
period of Your subscription We will not override,change or destroy any archived copy except in connection with migrating the
archive to another storage device and, then,only after a copy has been placed on the storage device to which the archive is
being migrated.
3.3 Litigation Hold.
If you wish to place a litigation hold on some or all of Your data archived by Us,You shall send an email to
support@pagefreezer.ccm identifying the pages and dates You would like Us to hold or give Us notice using the web form made
available to You for that purpose on Our website. Within one(1)business day after receipt of Your request,We will confirm to
You that we have received Your request by sending an email to the address We have on file for You.Within two(2)business
days after Our receipt of Your request,We will flag those pages and dates so that they are identified as not to be deleted and
confirm to You by email that this has been done. Within three (3)business days after the receipt of Your request,We will export
the pages and dates identified by You from the archives stored on Our servers (the cost of this Service is price per gigabyte of
the data exported).We will export the data in a printable format and/or its native format including the digital signatures and
timestamps.We may change the process for implementing a litigation hold by updating the User Guide. Please consult the User
Guide for any changes to these procedures.
3.4 Your Responsibilities.
You shall (i)be responsible for making each Web Site available for archiving by Us, (ii)be solely responsible for the accuracy,
quality, integrity and legality of Your Data and of the means by which You acquired Your Data, use commercially reasonable
efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use,
(iii)ensure that all Your Web Site pages accessed by our Services are accessible from Internet without restrictions and that Our
software and Services are granted access to all of Your Web Sites, (iv)specify Your Web Sites and sub-sites to be within the
scope of Our Services, ensure that Your Web Site and each individual page within the scope of Our Services are accessible to
Our software and Services and resolve any network problems, server overload or availability problems, or any other technical
issues that may affect the accessibility and availability of Your Web Site and each Web Site page, (v)arrange for any export of
data from the archives stored on Our server that You wish to obtain , (vi)use the Services only in accordance with the User
Guide and applicable laws and government regulations, (vii) request an export of Your data from Our servers after the
termination of this Agreement within the time period specified in Section 10.5(Return of Your Data)(there is a fee for the data
export which will cover the courier costs for the disks to be shipped to You), and (viii) be responsible for verifying and ensuring
that under applicable law the data generated by Our Services are admissible in court proceedings or any other legal
proceedings that You may wish to utilize the data. You shall not store anything on Your Web Sites that You register for Services
that We cannot lawfully copy.
3.5 Usage Limitations.
Services may be subject to other limitations,such as,for example, limits on disk storage space and on the number of calls You
are permitted to make against Our application programming interface. Any such limitations are specified in this Agreement and
in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
4 FEES AND PAYMENT FOR PURCHASED SERVICES
4.1 Fees.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i)fees
are quoted and payable in United States dollars (ii)fees are based on Services purchased and not actual usage, (iii)payment
obligations are non-cancelable and fees paid are non-refundable, and (iv)the number of Web Site subscriptions purchased
cannot be decreased during the relevant subscription term stated on the Order Form.Web Site subscription fees are based on
monthly periods that begin on the subscription start date and each monthly anniversary thereof;therefore, fees for Web Site
subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods
remaining in the subscription term.
4.2 Invoicing and Payment.
We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order
Form, invoiced charges are due net 30 days from the invoice.You are responsible for maintaining complete and accurate billing
and contact information in the Services.
4.3 Overdue Charges.
If any charges are not received from You by the due date, and after We have provided You with a written notice of such
payment default and allowed You ten (10) business days to cure such default,then at Our discretion, (a)such charges may
accrue late interest at the rate of 1.5%of the outstanding balance per month, or the maximum rate permitted by law,whichever
is lower,from the date such payment was due until the date paid, and/or(b)We may condition future subscription renewals and
Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4 Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, and after We have
provided you with a written notice of such payment default and allowed you ten (10)business days to cure such default,We
may,without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all
such obligations become immediately due and payable,and suspend Our services to You until such amounts are paid In full.
4.5 Payment Disputes
We shall not exercise Our rights under Section 4.3 (Overdue Charges)or 4.4(Suspension of Service and Acceleration)if the
applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
4.6 Taxes.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature,
including but not limited to value-added,sales, use or withholding taxes,assessable by any local, state, provincial,federal or
foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If
We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph,the appropriate amount
shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate
taxing authority. For clarity,We are solely responsible for taxes assessable against it based on Our income, property and
employees.
5 PROPRIETARY RIGHTS
5.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder,We reserve all rights,title and interest in and to the Services, including
all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 Restrictions.
You shall not(i)permit any third party to access the Services except as permitted herein or in an Order Form, create derivate
works based on the Services, (ii)copy,frame or mirror any part or content of the Services,other than copying or framing on
Your own intranets or otherwise for Your own internal business purposes, (iii)reverse engineer the Services, or(iv) access the
Services in order to(a)build a competitive product or service, or(b)copy any features,functions or graphics of the Services.
5.3 Ownership of Your Data.
As between Us and You, You exclusively own all rights,title and interest in and to all of Your Data.
5.4 Suggestions.
We shall have a royalty-free, worldwide,transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into
the Services any suggestions,enhancement requests, recommendations or other feedback provided by You, relating to the
operation of the Services.
6 CONFIDENTIALITY
6.1 Definition of Confidential Information.
'**Section removed****
6.2 Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i)the Receiving Party shall use the same degree of care that it
uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care)not to
disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii)
the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors
and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Protection of Your Data.
Without limiting the above, We shall maintain no less than industry standard administrative, physical, and technical safeguards
for protection of the security, confidentiality and integrity of Your Data.We shall not(a)modify Your Data, (b)disclose Your Data
except as compelled by law in accordance with Section 6.4(Compelled Disclosure)or as expressly permitted in writing by You,
or(c)access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request
in connection with customer support matters.
6.4 Compelled Disclosure.
***Section Removed***
7 WARRANTIES AND DISCLAIMERS
7.1 Our Warranties.
We represent,warrant and covenant that the Services (and any parts and materials thereof)will (i) be delivered by competent
personnel in a professional and workmanlike manner, according to prevailing industry standards; (ii) be of good material and
workmanship; (iii)be fit and sufficient for the purpose(s)for which they were purchased; (iv) be performed in compliance with
the requirements of all applicable laws and regulations; (v) not and do not infringe or misappropriate any United States or foreign
patent, trademark, trade secret, copyright or any other proprietary, intellectual property, industrial property, or contract right held
by any third party; (vi)will comply with all applicable foreign,federal, state or local statutes, laws and regulations governing
advertising, data collection, privacy, security and other business practices; (vii)will not otherwise expose either party to criminal
or civil liability, and (viii) materially conform with the specifications (if any)set forth in the description of the Services and be
consistent with any samples of Services provided.
We represent,warrant, and covenant to You that: (i) Our performance under this Agreement shall at all times conform to
prevailing professional and ethical standards; (ii)due care and commercially reasonable efforts shall be utilized by Us in the
performance of this Agreement; and(ii)We are under no obligation or restriction that would conflict with Our providing the
Services.
For any breach of either such warranty,Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause)and
Section 10.4 (Refund or Payment upon Termination)below.
7.2 Your Warranties.
You warrant that You own the Web Site and Social Media that You register for Services. By registering Your Web Site for
Services,You warrant that You have the right to, and hereby grant, Us permission to access Your Web Site with Services,
including, but not limited to, archiving Your Web Site, sub-sites and/or Web Site pages.
7.3 Mutual Warranties.
Each party represents and warrants that(i)it has the legal power to enter Into this Agreement, and (ii)will not intentionally
transmit to the other party any Malicious Code. Each party will utilize reasonable efforts to detect and remove Malicious Code
from any materials subject to this Agreement by using virus scanning or other similar tools and techniques.
7.4 Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND,WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8 MUTUAL INDEMNIFICATION
8.1 Indemnification by Us.
We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party
alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third
party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in
connection with any such Claim; provided, that You(a)promptly give Us written notice of the Claim; (b)give Us sole control of
the defense and settlement of the Claim(provided that We may not settle any Claim unless the settlement unconditionally
releases You of all liability);and(c)provide to Us all reasonable assistance, at Our expense.
8.2 Indemnification by You.
You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the
Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates
applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by,
Us in connection with any such Claim; provided, that We(a)promptly give You written notice of the Claim; (b)give You sole
control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement
unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
9 LIMITATION OF LIABILITY
9.1 Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER IN CONTRACT,TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID
BY YOU HEREUNDER OR,WITH RESPECT TO ANY SINGLE INCIDENT, THE GREATER OF$100,000 OR THE AMOUNT
PAID BY YOU HEREUNDER IN THE 12
MONTHS PRECEDING THE INCIDENT.THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER
ARTICLE 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).
9.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR
REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES
HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER
SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.3 Additional Limits on Our Liability.
We are not responsible for: (1)Your Web Site or any of Your Web Site pages or data being excluded from Our Services due to
the access limits placed by You on Your Web Site, sub-site, page,and/or Your Data, (ii)Your Web Site, any sub-site, page,
and/or Your Data excluded from Our Services due to not being specified by You as being in scope of Our Services, (iii)Your
Web Site, any sub-site, page, and/or Your Data excluded from Our Services due to Internet or Your network problems, Your
server overload, availability, and/or accessibility problems, or due to any other technical problems that may affect availability
and/or accessibility of Your Web Site, any sub-site, page,and/or Your Data, (iv)any negative effect on You by Our Web Site
being offline from time to time for maintenance, (v)loss of Your Data after the termination of this Agreement when You had failed
to request an export of Your Data from Our systems within the data hold period specified in Section 10.5 (Return of Your Data),
and (vi) refusal for any court, law enforcement agency, or dispute resolution venue to accept or recognize for any purpose the
data generated by Our Services.
10 TERM AND TERMINATION
10.1 Term of Agreement.
This Agreement commences on the date You accept it and continues until all Your Services subscriptions granted in
accordance with this Agreement have expired or been terminated.
10.2 Term of Purchased Web Site Subscriptions.
Services subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for
the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Web Site subscriptions
shall automatically renew for additional periods equal to the expiring subscription term or one year(whichever is shorter), unless
either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit
pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of
a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon
renewal and thereafter.Any such pricing increase shall not exceed 10%over the pricing for the relevant Services in the
immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as
promotional or one-time.
10.3 Termination for Cause.
A parry may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such
breach remains uncured at the expiration of such period, or(ii)if the other party becomes the subject of a petition in bankruptcy
or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination„
Upon any termination,We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the
effective date of termination. Upon any termination for cause by Us,You shall pay any unpaid fees covering the remainder of
the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation
to pay any fees payable to Us for the period prior to the effective date of termination.
10.5 Return of Your Data.
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription and upon
payment to Us of the applicable data export fees,We will make available to You for download a file of Your Data in the native
file formats along with attachments in their native formats.The data export fee at the end of the Term of this Agreement or in the
event of Termination is$500.00 for the first 200GB (200 GigaBytes)and then$50.00 for every 1 OGB thereafter.At the end of
the 30-day period, We shall have no obligation to maintain or provide any of Your Data and we may, unless legally prohibited
and at our own discretion when permitted,delete all of Your Data in Our systems without notice or confirmation. If You elect to
purge Your Data and require confirmation or destruction on, or before, a specific date, We will destroy the Data and provide You
with a Certificate of Destruction for a one-time fee of$300.00.
10.6 Surviving Provisions,
Articles 4(Fees and Payment for Purchased Services), 5(Proprietary Rights), 6(Confidentiality),8 (Mutual Indemnification), 9
(Limitation of Liability), 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction)and 12 (General
Provisions)and Sections 7.4(Disclaimer), 10.4 (Refund or Payment upon Termination), 10.5(Return of Your Data)shall survive
any termination or expiration of this Agreement.
11 WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
11.1 General,
Who You are contracting with under this Agreement,who You should direct notices to under this Agreement,what law will apply
in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on
where You are domiciled.
If You are domiciled You are contracting Notices should be The The courts having
in: with: addressed to: exclusive jurisdiction
governing law is: are:
In North PageFreezer PageFreezer Washington State Law Washington State
America Software, Inc. Software, Inc.
11.2 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall
be deemed to have been given upon: (i) personal delivery, (ii)the second business day after mailing, (iii)the second business
day after sending by confirmed facsimile,or(iv)the first business day after sending by email (provided email shall not be
sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator
designated by You for Your relevant Services account, and in the case of billing-related notices,to the relevant billing contact
designated by You.
11.3 Agreement to Governing Law and Venue.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive
jurisdiction of the applicable courts above.
11.4 Waiver of Jury Trial.
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to
this Agreement.
12 GENERAL PROVISIONS
12.1 Export Compliance.
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing
and using the Services. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of
persons or entities prohibited from receiving exports.
12.2 Relationship of the Parties.
This Agreement will not be construed as creating a partnership,joint venture,or agency relationship or as granting a franchise.
The parties are performing their obligations under these Terms as independent contractors. At no time will either Party have
any right, power or authority to create any obligation or responsibility on behalf of the other party.
12.3 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
12.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than
as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party
at law or in equity.
12.5 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law,the provision shall be ----
modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent
permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.6 Attorney Fees.
The prevailing party in any litigation under this Agreement shall be entitled to recover all costs incurred in connection therewith,
including,without limitation, reasonable attorneys'fees. You shall pay on demand all of Our reasonable attorney fees and other
costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 4.2
(Invoicing and Payment).
12.7 Assignment.
Neither party may assign this Agreement or the rights granted hereunder without the prior written consent of the other, except
that a party may assign this Agreement to any successor to the business of the party by merger, consolidation, or sale of assets
or to any corporation controlling, controlled by, or under common control with the party..
12.8 Entire Agreement; Modification.
This Agreement shall constitute the entire Agreement between the parties hereto and supersedes all prior agreements and/or
representations between the parties relating to the subject matter hereof. The parties acknowledge and agree that they have not
relied upon any representations not set forth herein in entering Into this Agreement. Both parties have had the opportunity to
have this Agreement reviewed by competent counsel. Any change, modification or amendment to this Agreement must be in
writing and signed by both parties in order to be effective. No terms, provisions, or conditions of any other document will have
any effect on the obligations of the parties under or otherwise modify this Agreement. To the extent, if any,the terms of this
Agreement conflict with any Order Form or any other of Our documental, the terms contained herein shall be controlling and any
additional terms presented in any of Our documents shall be null and void. To the extent, if any, the terms Sections 1 through
12 of this Agreement conflict with any language contained in any exhibit of other document incorporated herein,the terms
contained In Sections 1 through 12 shall prevail. In the case of a conflict in language between this Agreement and any other
agreement or other document between the parties, the language of this Agreement shall prevail.
12.9 Pre-Printed Terms or Conditions.
In no event shall the pre-printed terms or conditions in any Order Form or other document, or any other similar document, be
considered an amendment or modification whether such terms conflict or not,with this Agreement, even if such documents are
signed by representative of both parties. For further clarity, such terms shall be inapplicable and of no effect in their entirety.
12.10 Change In Document.
By signing and delivering this Agreement and/or any schedule, exhibit, amendment, or addendum thereto, each party will be
deemed to represent to the other that the signing party has not made any changes to such document from the drafts)most
recently provided to the other party by the signing party, or vice versa,unless the signing party has expressly called such
changes to the other party's attention in writing (e.g., by"redlining"the document or by a comment memo or email).
12.11 Force Majeure.
No delay or default in performance of any obligation by either party shall constitute a breach of this Agreement to the extent
such default or delay is caused, directly or indirectly, by an event beyond the reasonable control of the party unable to perform,
including fire,flood, earthquake, elements of nature, acts of war,terrorism, riots, civil disorders, rebellions or revolutions, failure
of the Internet or strikes, lockouts or labor difficulties("Force Majeure Event"). The party affected by an event of Force Majeure
Event, upon giving prompt notice to the other party,shall be excused from performance hereunder on a day to day basis to the
extent of such prevention, restriction, or interference(and the other party shall likewise be excused from performance of its
obligations on a day to day basis to the extent that such obligations relate to the performance so prevented, restricted,or
interfered with); provided that the party so affected shall use commercially reasonable efforts to avoid or remove such cause of
non-performance and to minimize the consequences thereof and both parties shall resume performance hereunder forthwith
upon removal of such cause. However, if the period of nonperformance exceeds ten (10)business days from the receipt of
notice of the Force Majeure Event,the party whose ability to perform has not been affected may, by giving written notice,
terminate this Agreement without cause and may be subject to refunds for pre-paid, unused Services.
In WITNESS WHEREOF, I have signed this agreement effective as of the day and year
upon completion of signing.
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Company Name w City of Kent,WA
Address 220 Fourth Avenue South City Kent
State Washington Zip 98032
._._ ._...........
Primary Contact Name Gregg Sconce Title
................ ....-_...._....._...,._.�... .._... —
(Authorized User) Phone (253)8564609 Email gsconce@kentwa.gov
Technical Contact Name Title
Of different) Phone Email
Billing Contact Name Gregg Sconce Title
(if different) Phone (253)856-4609 ...__-._._...... ......... .. Email gsconce@kentwa.gov
Address 220 Fourth AvenueSouth,Kent WA city
98032
State Washington Zip
..-... ._..... .......__.... _
Quote Date 11/21/2016 12:25:42 Quote Expiration 1 2/3112 01 6
Smarsh Sales Executive Matt Dreese Term of Agreement
One-time Setup Fee _$4#00;00$250.00 Invoiced on execution of Order Form
Services Rate per Minimum Minimum
Quantity Quantity
Archiving Platform Web Archiving-Page Fee-Monthly $0.16 2500 $400.00
Archiving Platform Web Archiving-Domain Fee Monthly $30.00 1 $30.00
Archiving Platform Core Platform-Professional Package Monthly $130.00 1 $130.00
Archiving Platform Content Usage-Social Bundle Monthly $8.50 10 $85.00
Notes
Terms&Conditions �� -r._-- �
Following execution of the Order Form,Smarsh will provide Client with access to an account within the applicable Service("Activation Dale").Client's
"Minimum Commitment"is the greater of the minimum usage metric specified above(as further clarified in the Agreement).The Services are subject to
the Smarsh Service Agreement located here Xetltr9f reww 5m,nvii 'nniaVavlu-uYioutNilJ�Ut1kFa{tl,/LfYLiF q,pfyupylr,Jv„h)(o„gtllrhrl-ra- alrwJmAgc1 or ata,6.1
Fusil wu urf,1("Agreement")and incorporated in this Order Form by reference.The term of the Agreement shell begin on the date this Order Form is
executed and continue for the Initial Term of Agreement specified above,unless Client is adding the above Services on to an existing Service account
and,in which case,the above Services will sync to Client's then existing Service term and be subject to renewals as specified in the Agreement If the
billing terms above indicate a monthly billing schedule,Smarsh will invoice Client for(a)retuning Services monthly in arrears,(b)One Time Fees upon
execution of the Order Form,and(c)Import Fees on a monthly basis,based on the Client Data imported in the previous month.If the billing terms
above indicate an annual billing cycle,Smarsh will invoice client for(a)the total annual fee for recurring Services upon execution of the Order Form,(b)
One-Time Fees upon execution of the Order Form and(c)Import Fees on a monthly basis,based on the Client Data imported in the previeus month.
Smarsh will invoice Client for any usage over the Minimum Commitment.Service Descriptions are available at wwwsmarsh.comllegal-If Client
purchases any Services which requires Software of services which are resold by Smarsh(including through any of the fallowing vendors:17-a-4,
MobileGuard,Instant Technologies or Actiance,Cellirusl or Personal Archive Access)or if Client is purchasing text message archiving,additional
terms apply to the Service or Software and such terms areare located at hllui Iu'w✓„p;wv ,frvdi gi,ugaii)1qq)1g,i,.
By __...__.....______._....__._..._
Name Title _.._.®..._.__.........____- Date:.,
i
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