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HomeMy WebLinkAboutCAG2022-078 - Original - UpKeep Technologies, Inc. - CMMS Software Subscription & Implementation - 03/07/2022LS/SP MC Daniel Blincoe IT 02/24/2022 03/04/2022 N/A T00038 N/A UpKeep Technologies Contract 2464161 Original Upkeep CMMS Software Subscriptions and Implementation $ 21,007.08 Direct Negotiation 2/25/22 OK to sign, 2/25/2022, TW. CAG2022-078 03/04/22 Agreement for Software as a Service For Mayor's Signature EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 1 AGREEMENT FOR SOFTWARE AS A SERVICE Between the City of Kent and Upkeep Technologies, Inc. This Software as a Service (SaaS) Agreement (Agreement) is between the CITY OF KENT (City or Customer), a Washington Municipal Corporation located at 220 Fourth Avenue South, Kent, WA 98032 and Upkeep Technologies, Inc. (Vendor), organized under the laws of the State of Delaware with its principal place of business at 10880 Wilshire Blvd., Los Angeles, CA 980024, services, on an as-needed basis, all of which will continue to be supported and maintained by Vendor under the terms of this Agreement. 1. Description of Work and Services Provided by Vendor. 1.1 Products and Services Provided on an as-needed basis. Vendor shall provide the City with those Vendor products, software licenses, and maintenance services that the City determines are necessary for City o proposal that describes the software, support, and/or maintenance services desired by the City, along with their total cost inclusive of Washington State sales tax. If the City accepts the pricing provided Agreement. Upon acceptance of the proposal by the City, such proposal shall form an addendum to this Agreement and shall be subject to its terms and conditions. However, the proposal shall provide only for the product(s) and its associated cost; no additional purchase terms or contract provisions included on any Vendor proposal shall be given effect or shall otherwise alter the provisions of this 1.2 Grant of License to Access and Use Services. For the term of this Agreement including any renewals, Vendor hereby grants to City, including to all its Authorized Users, a revocable, non- exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide right to access and use the products and services Vendor makes available to the City through this Agreement, which may include products and services accessible for use by the City on a subscription basis, Vendor professional services, content from any professional services, or other required equipment -commercial government operations. The Services shall include those products and services specified within Exhibit A, as well as any additional or future products and services that are added during the term of this Agreement under the process provided for in Section 1.1 of the Agreement. The City shall refrain from taking any steps such as reverse assembly or reverse compilation, to derive a source code equivalent to the Services as further described in Section 9.3. 1.3 Vendor Privacy Policy. In providing the Services under this Agreement, the City agrees attached and incorporated as Exhibit F. 2. Term. The initial term of this Agreement shall be for one (1) year, commencing on March 7, 2022, and expiring on March 6,2023 (Initial Term), with the option for the City to renew thereafter for one (1) additional year (Renewal Term) for a maximum contract term through March 6, 2024 . This Agreement shall automatically renew for the Renewal Term unless City gives written notice of cancellation at least 30 days prior to the expiration of the Initial Term. meaning is expressly stated. EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 2 3. Subscription Fees/Taxes. 3.1 Subscription Fees. Subscription fees and payment terms for the Services ordered at the time this Agreement was originally signed are as set forth in the attached and incorporated Exhibit A and, for any additional Services provided by Vendor on an as-needed basis as set forth in Section 1.1 of the Agreement, the City agrees to pay any invoice issued by the Vendor that is of such items as conforming to the terms of this Agreement. For any software license or maintenance fees due for those Services, the Vendor shall invoice the City for those fees at least 30 days before the commencement of the term applicable to those license and maintenance fees. 3.2 Undisputed Fees. Undisputed invoices shall be due and payable within 30 days whichever event occurs last. City shall notify Vendor in writing of any disputed amount within 15 business days of receipt of the applicable invoice. Portions of invoices that are subject to a good faith billing dispute shall not be considered delinquent for purposes of this Agreement. Disputed billings are subject to Section 16.2, Dispute Resolution. 3.3. Taxes. All contract amounts shall be inclusive of sales or other applicable taxes, and invoices shall include all tax obligations stated separately from the contract amounts. City shall pay all applicable sales, use, value added or similar taxes to Vendor and Vendor shall remit all such taxes, if imposed by local and/or state authorities on all software, and other taxable goods and services procured by the City under this Agreement. 3.4 Card Payment Program. The Vendor may elect to participate in automated credit card payments provided for by the City and its financial institution. This Program is provided as an alternative to payment by check and is available for the convenience of the Vendor. If the Vendor voluntarily participates in this Program, the Vendor will be solely responsible for any fees imposed by financial institutions or credit card companies. The Vendor shall not charge those fees back to the City. 4. System Availability and Support Services. The Services shall be available to the City along with support services as described in the attached and incorporated Exhibit B. 5. Representation and Warranties. 5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and shall have obtained and continue to maintain all licenses, permits, and certifications required for such Party in connection with the performance of this Agreement; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid, and binding obligation when signed by both Parties. 5.2 Vendor Warranties and Representations. Vendor represents and warrants that the Services will be performed in a professional and workmanlike manner, consistent with applicable industry standards and the corresponding specifications set forth in the applicable Statement of Work and Service Level commitments. a. Deliverables. Vendor represents and warrants that each deliverable shall meet and confirm to its applicable specifications as provided herein following its acceptable and during the Term. Vendor also represents and warrants that the Services, in whole and in part, shall operate in accordance with the applicable configuration documentation, and this Agreement EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 3 b.. Services. Vendor represents and warrants that (a) it shall perform the Services required pursuant to this Agreement in a professional manner, with high quality, and (b) it shall give due priority to the performance of the Services. c. Title Warranty and Warranty against Infringement. Vendor hereby warrants and represents that Vendor is the owner of the Services licensed hereunder, or otherwise has the right any rights of any third-party worldwide. Vendor represents and warrants that (i) Vendor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial proceeding pending or copyrights, trade secrets or other intellectual property rights of any third- Services does not knowingly infringe upon or misappropriate any patents, copyrights, trade secrets or any other intellectual property rights of any third-party. d. Maintenance Services Warranty. Vendor warrants that, in performing the Services under the Agreement, Vendor shall substantially and materially comply with the descriptions and representations as to the Services, including performance capabilities, accuracy, completeness, characteristics, Statement of Work, configurations, standards, function, and requirements, which appear in this Agreement. e. Warranty of Compliance with Applicable Law. Vendor warrants the Services shall comply with all applicable federal, state and local laws, regulations, codes and ordinances to which it is subject. Vendor warrants that, throughout the Term of this Agreement, including any renewals, the Services shall comply with changes to and new applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor represents and warrants that it shall comply with all applicable local, state, and federal licensing, accreditation, and registration requirements and standards necessary in the performance of the Services. f. Warranty of Services. General Responsibilities. Vendor warrants the Services for the term of this Agreement. Vendor shall provide Warranty Services as described in this Agreement at no additional cost to correct deficiencies in the Services and to repair and maintain warranty service responsibilities shall include, but not be limited to the following: i. Promptly and diligently perform and reperform the Services which is not in compliance with documentation/specifications, representations, and warranties at no additional cost to the City; ii. Maintain the Services in accordance with the specifications and terms of this Agreement and meet all availability and system performance service levels as specified in this Agreement. In the event the Service requires failover activities, then Vendor shall be responsible for continuance of the Services and the City shall not be subject to additional costs unless otherwise specified in this Agreement. iii. Promptly coordinate with the City all tasks related to correcting problems and deficiencies connected with the Services. iv. notice to and agreement by the City. v. If Vendor and/or City reasonably determines that Vendor is unable to remedy such deficiencies, Vendor or City may terminate the Agreement and Vendor shall issue a prorated refund to City of the fees previously EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 4 paid by City to Vendor for any unused term of this agreement and fees from the date of termination. 6. City Data/Vendor Obligations. 6.1 Ownership and Use. City owns all of the information and materials that it submits, uploads or transfers, or causes to be submitted, uploaded, or transferred utili -exclusive, non-transferable right and license during the applicable Term of this Agreement to (i) download, receive, collect, access, modify, copy, store, retain, and otherwise use City Data in order to provide and support the Services in accordance with this Agreement and to internally develop and improve its products and services; and (ii) to collect, retain, store, use, modify, distribute, and disclose the City Data in ad and anonymized form and any inferred insight relating to the City Data for any purpose whatsoever, provided that any such disclosure does not identify the City or users by name or description sufficient to identify the City or users as the source or subject of such information, in whole or in part. 6.2 Data Protection. reasonable physical, electronic, and procedural safeguards to protect and preserve the confidentiality and security of City protection legislative requirements and as the highest industry standards for privacy and security, which applicable policies are incorporated herein by reference. 6.3 Data Restrictions. Vendor shall restrict access to City Data to Vendor employees, affiliates' employees, or others who need to know that information to provide services to City. City Data shall be stored and hosted within the United States of America. Vendor will use City Data for the purposes described in this Agreement. Vendor will not sell, license, transmit or disclose this ndor to do so; (2) written notice to City of such requirement. Notwithstanding the foregoing, Vendor is responsible for 6.4 Data Backup. data by having a backup system that includes archive, and failover capabilities. Disaster recovery plan shall include: (1) Data backup procedures ta, in near real time, at the disk level; and (2) A multi- level backup strategy that includes disk-to-disk-to-tape data backup in which tape backups serve as a secondary level of backup, not as the primary disaster-recovery data source; or other data backup loss. 7. Intellectual Property Ownership. Vendor (and its Licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service, the content, the software, and in its technology. This Agreement, does not convey to City any rights of s owned by Vendor and its Licensors, where applicable. 8. Non-Disclosure of Confidential Information. - disclosure of Confidential Information is contained in the attached and incorporated Exhibit C. All Confidential Information is and shall remain the property of its owner to the extent consistent with applicable law. The disclosure of Confidential Information to the other party does not grant to it any express or implied right to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 5 9. City Obligations. 9.1 Hardware Obligations. City shall be responsible for obtaining and maintaining all other computer equipment, hardware, software, and communications equipment needed to internally access and utilize the Services. 9.2 Anti-Virus Obligations. The City will use commercially reasonable efforts to safeguard against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses") that may reasonably affect the 9.3 Restricted Uses. The City will not: a. knowingly upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services, b. modify, disassemble, decompile or reverse engineer the Services or pre-release equipment or hardware devices or software disclosed, c. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Services, d. copy, reproduce, resell or commercially exploit the Services, e. without authority, access or use any other clients' or their users' data through the Services, f. maliciously reduce or impair the accessibility of the Services, g. reverse engineer, decompile or disassemble any software code and/or pre- release equipment or hardware devices disclosed. 9.4 Audit request, the City shall certify in a signed writing that its and all the Services to confirm its compliance with the Agreement (including the identifies of all users). All such audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with City business activities. 10. Indemnification Obligations. 10.1 City Indemnification Obligations. Subject to Section 10.3 below, City shall defend, indemnify, and hold Vendor and its parent organizations, subsidiaries, Affiliates, officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third-party claim alleging that the use of City Data infringes the rights of, or has caused harm to, a third-party; (ii) a third- or (iii) a third- of Vendor or its Licensors is in violation of this Agreement; (iv) third-party claim of injury or death EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 6 10.2. Vendor Indemnification Obligations. Subject to Section 10.3 below, Vendor shall defend, indemnify, and hold City and its elected officials, officers, employees, agents and attorneys harmless from and against any and all claims, costs, damages, losses, liabilities and expenses r in connection with: (i) a third-party misappropriates the rights of, or has caused harm to, a third-party; (ii) a third-party claim alleging a breach of any Vendor representations and warranties in this Agreement; (iii) a third-party claim -party claim alleging ringes the rights of, or has caused harm to, a third-party, (v) third-party claim of injury or death to person or damage to 10.3 As an express condition of the foregoing indemnification obligations, the parties hereby agree that: a. the indemnified party shall promptly notify the indemnifying party in writing for any claim for which indemnification is sought; b. the indemnified party shall cooperate with all reasonable requests of the c. the indemnifying party shall be allowed to control the defense and settlement of such claim; d. the indemnifying party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part of the indemnified party unless the indemnified party provides prior written consent, e. the indemnified party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing; f. each indemnified party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. 11. Limitation of Liability 11.1. OBLIGATIONS, CONFIDENTIALITY AND SECURITY OBLIGATIONS, AND INTELLECTUAL PROPERTY RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO VENDOR IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. 11.2. NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE REMOTE OR SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON ENTRY INTO THIS AGREEMENT. 11.3. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 7 12. Insurance. Vendor shall maintain insurance that is sufficient to protect its business against all applicable risks, at a minimum as set forth in the attached and incorporated Exhibit D, "Insurance Requirements." Vendor shall promptly provide City with certificates of insurance to evidence Vendor's continued compliance with Exhibit D. 13. Termination of Agreement. 13.1 Termination by City for Cause. In addition to any other rights granted to City in this Agreement or under law, City has the right to terminate this Agreement upon written notice due to: a. a material breach of a term, representation, or warranty under this Agreement (including a material breach under any incorporated attachment, addendum and/or exhibit to this Agreement) by Vendor of any of its subcontractors or licensors of services if such material breach is not remedied within 30 days following receipt of written notice from City; or b. a third- professional services, technology, software, or any other services and products provided to the City by Vendor or its subcontractors or Licensors or other third-parties and the intellectual property rights associated therewith, infringes upon such third- c. services under this Agreement. d. Vendor files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 60 days of the filing thereof.. 13.2 Termination By Vendor for Cause. In addition to any other rights granted to Vendor in this Agreement or under law, Vendor reserves the right, upon written notice to City, to terminate this Agreement due to: a. any undisputed amounts City owes that are delinquent greater than 90 days; or b. a material breach of the terms of this Agreement, other than a payment obligation, by City or its users if such breach is not remedied within 30 days following receipt of written notice of such breach from Vendor to City; or c. a third- such third- 13.3 No Suspension of Services. Provided City continues to timely make all undisputed payments, Vendor warrants that during the term of this Agreement, Vendor will not withhold Services provided herein, for any reason, including but not limited to a dispute between the parties arising under this Agreement, except as may be specifically authorized herein. 13.4 Effect of Termination. a. If City terminates for cause or Vendor terminates without cause, City will only be obligated to pay the amounts then due for services provided meeting commitments as calculated up to the date of termination and, if applicable, City will be reimbursed a prorated amount of unused, prepaid fees. EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 8 b. If Vendor terminates for cause that City does not dispute or if City terminates without cau for such unpaid fees due up to the date of termination. c. In the event this Agreement terminates for any reason, Vendor shall provide in a format acceptable (and at no cost) to City within 30 days of the effective date of termination. City shall have 60 days following termination to notify Vendor if beyond the termination of this Agreement. City will thereafter promptly notify Vendor when such litigation, laws, e as permitted by law 61 days after termination, if City provides no notice otherwise; or after City notifies Vendor there are no laws, regulations, litigation, etc. requiring further retention. Retained data is subject to the confidentiality provisions of the Agreement. 14. Remedies. Termination of this Agreement shall not affect any right of action of either party prior to the termination being affected. All remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an election of any one remedy to the exclusion of any other. In addition to any other remedy provided for herein, or at law or equity, City shall have the right to recover from Vendor all damages reasonably caused by default of any re available to it in law, at equity or pursuant to this Agreement. 15. Non-Discrimination. In the hiring of employees for the performance of this Agreement or any subcontract, the Vendor, its subcontractors, or any person acting on behalf of the Vendor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Vendor shall execute the City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the Compliance Statement, all attached and incorporated as Exhibit E. 16. General Provisions 16.1 Governing Law and Venue. The Agreement will be governed by the laws of Washington and its choice of law rules. Vendor irrevocably consents to the exclusive personal jurisdiction and venue of the federal and state courts located in King County, Washington, with respect to any dispute arising out of or in connection with the Agreement and agrees not to commence or prosecute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts. 16.2. Dispute Resolution. The City and Vendor desire, if possible, to resolve disputes, controversies and claims (Disputes) arising out of this Agreement without litigation. To that end, upon written notification of dispute by a party to the other, each party shall appoint a knowledgeable, responsible management representative to meet and negotiate in good faith to resolve any Dispute arising under this Agreement. If the parties are unable to settle any Dispute, the exclusive means of resolving that Dispute shall only be by filing suit as provided for under Section 16.1, unless the parties agree in writing to an alternative dispute resolution process. 16.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provision will continue in full force without being impaired or invalidated in any way. The City and Vendor agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 9 16.4. Nonwaiver. Any failure by either party to enforce strict performance of any provision of the Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of the Agreement. 16.5 No Assignment. Either party may assign this Agreement and all of its rights and obligations hereunder as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets so long as said assignee accepts all of the respective Agreements rights and obligations of its predecessor as provided in this Agreement without limitation. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. 16.6 Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Either party may change its address by giving written notice of such change to the other party. 16.7 Legal Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit either der Section 10 of this Agreement. 16.8. Force Majeure. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, fire, flood, or other natu is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing state or national declarations of emergency, or any current social distancing restrictions or personal protective equipment requirements that may be required under federal, state, or local law in response to the current pandemic. If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. If a force majeure event occurs, the City may direct the Vendor to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 10 of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the Vendor. 16.9 Independent Contractor. City and Vendor intend that an independent Contractor relationship be created with this Agreement. Vendor shall not be considered an agent or employee of City for any purpose and the employees of Vendor are not entitled to any of the benefits that City provides for its employees. Nor shall this Agreement be evidence of a joint venture between Vendor and City. 16.10 Problem Notification. Each party will promptly notify the other in writing of any events or circumstances that will affect the performance of its obligations under this Agreement including the delivery of any deliverable or delay in completion of any of its obligations. Vendor shall notify City in writing of all material defects in the Services, whether discovered by other parties or by Vendor, within five (5) business days of their discovery and fix or replace the affected hardware or software within a commercially reasonable time. A defect is considered material if it has the potential to delay or inhibit the primary functionality of the Services or if said defect has the potential to corrupt City data. 16.11 Entire Agreement/Modification. This Agreement, together with all exhibits comprise the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be amended, modified, or added to only by written instrument properly signed by both parties hereto. 16.12 Public Records Act. The Vendor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and documents, notes, emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Vendor agrees to cooperate fully with the 16.13 City Business License Required. Prior to commencing performance under this Agreement, Vendor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. / / / / / / / / / / / / / / / / / / / / EQUIPMENT AND HARDWARE PURCHASE; SOFTWARE LICENSE; AND IMPLEMENTATION, TRAINING, AND MAINTENANCE SERVICES AGREEMENT Page 11 16.14 Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. VENDOR: UpKeep Technologies, Inc. By: Print Name: Robert Edmundowicz Its Chief Revenue Officer DATE: 2/10/2022 CITY: CITY OF KENT By: Print Name: Its DATE: NOTICES TO BE SENT TO: Miji Hendrix Customer Success, UpKeep Technologies, Inc. 10880 Willshire Blvd Los Angeles, LA 90024 (323) 553-0464 (telephone) Miji@onupkeep.com (email) NOTICES TO BE SENT TO: Somen Palit Information Technology Department City of Kent 220 Fourth Avenue South Kent, WA 98032 (253) 856-4600 (telephone) (253) 856-4700 (facsimile) ITA@kentwa.gov (email) APPROVED AS TO FORM: Kent Law Department ATTEST: Kent City Clerk EXHIBIT A SCOPE OF WORK AND QUOTE (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT A SCOPE OF WORK EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES A. SERVICE LEVEL AGREEMENT 1. Applicable Levels. 99.9% during each calendar month of the Agreement following initial implementation completion. 2. Scheduled System Maintenance. Vendor may take the software offline for scheduled maintenances of which City has received prior written notice of the planned maintenance schedule. 3. System Availability Definition. 3.1. means the percentage of minutes in a month that the key components of the software are operational 3.2. a. scheduled maintenance; b. events of force majeure; or c. technology/devices. 4. Remedies. 4.1 Should Vendor not achieve System Availability for two (2) months or more in any six (6) month period, the City shall be entitled to a prorated credit against the annual subscription fee for each month or partial month that Vendor fails to maintain System Availability in accordance with this Exhibit B. The credit shall be applied to the subscription fees due on the following Renewal Term, or if System Availability is not achieved during the final Renewal Term of this Agreement, the credit due the City shall be issued as refund mailed to the City by check within thirty (30) days. 4.2 Should Vendor not achieve the Response and Resolution Goals provided for in Section B.3., the City shall be entitled to the following credit against fees due: a. Prorated credit per day based on contract amount for corrections made up to seven (7) days beyond stated Response and Resolution Goal. The credit remedies provided herein is not exclusive and City shall be entitled to all failure to meet System Availability requirements. B. SUPPORT SERVICES 1. Support services entitles the City to the following: 1.1 Telephone or electronic support, 24 hours per day and 7 days per week, to help the City locate and correct problems with the hardware and software provided through this Agreement. EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) 1.2 Bug fixes and code corrections to correct software malfunctions to bring the software into substantial conformity with the operating specifications. 1.3 All extensions, enhancements and other changes that Vendor makes or adds to the software and which the Vendor offers, without charge, to other software licensees. 1.4 Up to three (3) dedicated contacts designated by the City in writing who 1.5 Training services to educate authorized City staff on how to operate and maintain the hardware and software. 2. Problem Reporting Procedure 2.1 The City may report errors or problems to the Vendor in the following manner: By phone, currently at 323-880-0280, plus emergency cell phone as provided from time-to-time By email, currently at Info@onupkeep.com By website software support, currently at www.upkeep.com 2.2 The City will cooperator with Vendor to provide information concerning any suspected error or problem reported. 2.3 The escalation procedures in Section B.4. will apply if Vendor does not meet the time periods provided for in Section B.2. 3. Response and Resolution Goals 3.1 Severity 1: The Production system/application is down, seriously impacted and there is no reasonable work around currently available. Once Vendor receives notice, the Vendor will respond within 1 hour, will begin continuous work to resolve the issue, and a customer support person must be available at any time to assist with problem determination. Once the issue is reproducible or once vendor has identified the Software defect, Vendor will provide reasonable efforts for workaround or solution within 24 hours. 3.2 Severity 2: The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use. Once Vendor receives notice, the Vendor will respond within 4 hours, will begin continuous work to resolve the issue, and a customer support person must be available at any time to assist with problem determination. The Vendor will work during normal business hours to provide reasonable effort for workaround or solution within 3 calendar days, once the issue is reproducible. EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) 3.3 Severity 3: The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. Once Vendor receives notice, the Vendor will respond within 8 hours, and a customer support person must be available at any time to assist with problem determination, if unknown. The Company will work during normal business hours to provide reasonable effort for workaround or solution within 5 business days, once the issue is reproducible. 3.4 Severity 4: Non-critical issues. The Company will seek during normal business hours to provide a solution in future releases of the software. 4. Problem Escalation 4.1 The response time periods set out above shall be measured from the time the City logs the call via the options listed above, and shall end when the Vendor contacts the designated City representative. The targeted fix time set forth above shall be measured from the time the City logs the call via the options listed above, and shall end when the Vendor has successfully implemented the correction or patch. 4.2 If response and resolution times are not being met per the above criteria, the City may escalate the issue by contacting the Account Manager or their appointed designee. Name: Miji Hendrix Phone: (323)538-0464 Office Email: Miji@onupkeep.com 4.3 If a reported problem is still not progressing as set forth above, the City shall escalate the problem by notifying the Account Executive or their designee. Name: Seth Anderson Phone: (323)613-2055 Office (801)671-2100 Cell Email: seth.anderson@onupkeep.com 4.4 representative will ensue. This meeting will be used to discuss and resolve problems that have resulted in the objectives of the Agreement not being met. EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Definition of Confidential Information and Exclusions. (a) "Confidential Information" means non-public information that a party to the surrounding disclosure ought to be treated as confidential by the Receiving Party. "Confidential Information" includes non-public information that City designates as being confidential or which, under the circumstances surrounding disclosure, Vendor ought to treat as confidential, including but not limited to information in tangible or intangible form relating to and/or including City data, computer programs, code, algorithms, formulas, processes, inventions, schematics and other technical, business , financial and product development plans, forecasts, strategies and proprietary or intellectual property whether or not it is owned by City and information received from others that City is obligated to treat as confidential. Except as otherwise indicated in of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, controls, are controlled by, or are under common control with a party. -public information that Vendor designates as being confidential, or which, under the circumstances surrounding disclosure ought to be treated as confidential by the City, including without limitation, information in tangible or intangible form relating to and/or including released or unreleased Vendor software or hardware products, the marketing or promotion of any Vendor product, City is obligated to treat as confidential. (b) Confidential Information shall not include any information, however designated, that: information to Vendor pursuant to the terms of this Agreement; (iii) became known to Vendor from a source other than City other than by the breach of an obligation of confidentiality owed to City; (iv) is independently developed by Vendor; or (v) is not confidential as a matter of law. 2. Obligations Regarding Confidential Information (a) Receiving Party shall: (i) Refrain from disclosing any Confidential Information of the Disclosing Party to third-parties for two (2) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c) below; (ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than prevailing stan confidential the Confidential Information of the Disclosing Party; EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) (iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and (iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by Disclosing Party to Receiving Party under the terms of the Agreement, except as expressly permitted by applicable law. (b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with judicial action, federal or state public disclosure requirements, state or federal regulations, or other governmental order or requirement of law, provided that Receiving Party gives the Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or Disclosing Party elects to obtain a protective order or equivalent, or legally contest and avoid such disclosure, the Receiving Party shall fully cooperate with the Disclosing Party. (c) The Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third-parties sufficient to enable Receiving Party to enforce all the provisions of this Agreement. (d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of the Agreement by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. Upon discovery of an inadvertent or accidental disclosure, the Receiving Party shall promptly notify the Disclosing Party of such disclosure and shall take all reasonable steps to retrieve the disclosure and prevent further such disclosures. If the foregoing requirements are met, a Receiving Party shall not be liable for inadvertent disclosure. (e) The restrictions herein shall not apply with respect to Confidential Information which: (i) Is or becomes known to the general public without breach of this Agreement; or (ii) Is or has been lawfully disclosed to a Receiving Party by a third-party without an obligation of confidentiality; (iii) Is independently developed by a Party without access to or use of the Confidential Information; or (iv) At the end of the period of confidentiality set forth in the Agreement. (f) All tangible information, including drawings, specifications, and other information submitted hereunder, by the Receiving Party to the other shall remain the property of the Disclosing Party. The Receiving Party promptly shall return Confidential Information, including all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) Receiving Party, and shall cease any further use thereof, upon the first to occur of the following events: (i) written request of the Disclosing Party; (ii) Agreement; or (iii) completion of the purpose for which the Confidential Information was disclosed. In lieu of the foregoing, the Receiving Party, upon mutual consent, may destroy all copies of the Confidential Information and certify to the Disclosing Party in writing that it has done so. (g) The Receiving Party shall not export, directly or indirectly, any Confidential Information or any products utilizing such data unless it first complies with any applicable laws and regulations pertaining thereto, including, but not limited to, U.S. export laws or traffic in arms regulations. 3. Remedies The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. 4. Miscellaneous (a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein. Except as expressly herein provided, no rights, licenses or relationships whatsoever are to be inferred or implied by the furnishing of Confidential Information specified above or pursuant to this Agreement. (b) The terms of confidentiality under this Agreement shall not be construed to limit either independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to grant EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT D INSURANCE REQUIREMENTS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT E NONDISCRIMINATION PROVISIONS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) EXHIBIT E CITY OF KENT NON-DISCRIMINATION POLICY AND FORMS DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with relation to this employment opportunity policies. The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative response is required on all of the following questions for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlines, it will be considered a breach of contract part of the Agreement; The questions are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. 5. Before acceptance of this Agreement, an adherence statement will be signed by me, the Prime Contractor, that the Prime Contractor complied with the requirements as set forth above. By signing below, I agree to fulfill the five requirements referenced above. By: For: UpKeep Technologies, Inc Title: Chief Revenue Office Date: EXHIBIT E NONDISCRIMINATION PROVISIONS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998 SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996 CONTRACTORS APPROVED BY Jim White, Mayor POLICY: Equal employment opportunity requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to assume the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these opportunity policy. 2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines. EXHIBIT E NONDISCRIMINATION PROVISIONS (to Equipment and Hardware Purchase; Software License; and Implementation, Training, and Maintenance Services Agreement) CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the Agreement. I, the undersigned, a duly represented agent of UpKeep Technologies, Inc Company, hereby acknowledge and declare that the before-mentioned company was the prime contractor for the Agreement known as UpKeep User Agreement that was entered into on the 3/7/2022 (date), between the firm I represent and the City of Kent. I declare that I complied fully with all of the requirements and obligations as outlined in the City of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity Policy that was part of the before-mentioned Agreement. By: For: UpKeep Technologies, Inc Title: Chief Revenue Officer Date: EXHIBIT F EXHIBIT F 1. UpKeep Technologies, Inc. Privacy Policy This Privacy Policy was last updated on June 21, 2021. information that we gather from visitors, users, and information, and the steps we take to protect such information. By using the Services, you consent to the privacy practices described in this Policy. 1. Information We Collect Personal Information While using the Services, we will ask you to provide us with certain personally identifiable Information may include, but is not limited to, your name, address, email address, phone number, company information, and payment information. You may provide us with Personal Information when you register for an account, use the Services, make a purchase, contact customer support, sign up for marketing material, or otherwise communicate with us. Please note that if you choose not to share certain Personal Information with us, or refuse certain contact permissions, we might not be able to provide certain parts of the Services. Additionally, other Users (such as within your company) may give us your Personal Information, such as when a User invites you to join the Services or create an account. In such case, if you wish to exercise any of your rights with respect to your Personal Information, please contact the applicable third party directly. Usage Information We collect information about how you interact with the Services, such as device type, IP address, operating system, browser type, address of a referring website, activity on our website, device ID, access dates and times, location, information related to your transactions on the Services, and other system activity. We may collect certain information by automated means using technologies such as cookies, web beacons, pixels, browser analysis tools, server logs, and mobile identifiers. In many cases the information we collect using cookies and other tools is only used in a non- identifiable manner without reference to Personal Information. For example, we may use information we collect to better understand website traffic patterns and to optimize your transmissions that indicate a request to disable online tracking of users who visit or use the Services. Content Square is a solution which aggregates usage and frequency data to improve user experience. Statistics created are anonymous. To be excluded from this monitoring, please follow the link available at: https://www.upkeep.com/privacy Information Received from Third Parties If you choose to connect your account to your account with a third-party service, we may receive or be granted access to information from such third-party service, including Personal Information. You can stop sharing your information from a third-party service with us by removing our access to that service. EXHIBIT F Third-Party Cookies When you use and visit the Services, we may also use third-party services, such as Google Analytics and Facebook, which use cookies to collect information about you for analytics or advertising purposes. Third parties may also use cookies, web beacons, or other devices to collect information when you use the Services. UpKeep does not control any cookies or other data collection tools that may be placed on the Services by a third party, and this Policy does not cover the use of such cookies and/or other data collection tools by any third party. We encourage you to read the privacy policies of such third parties to find out more about the information that may be collected by them and the choices you have regarding the collection, use, and sharing of such tion through cookies or other tracking technology by actively managing the settings on your browser or mobile device. 2. How We Use Your Information Provide, Maintain, and Improve the Services We may use your information to: communicate with you if you contact us directly or sign up for marketing material perform our obligations under the contract we have entered into with you provide customer service and process any transactions send you confirmations, updates, security alerts, and support and administrative messages detect and prevent fraud operate, protect, and optimize the Services and your experience, such as by performing analytics and conducting research troubleshoot and protect against errors personalize and improve the Services, including to recognize and contact you across multiple devices monitor and analyze usage and trends and otherwise measure the effectiveness of the Services advertise and market our Services, including delivering interest-based ads, cross-device linking, and analyzing the performance of such activities develop new features Sharing Your Information If you use the Services, you are authorizing us to share information: that you direct us to disclose to others with our third-party business partners, vendors, and consultants who perform services on our behalf or who help us provide the Services, such as accounting, managerial, technical, marketing, or analytic services if required to do so by law or in the good-faith belief that such action is necessary to comply with local, state, federal, or international laws, or to respond to a court order, judicial or other governmental subpoena or warrant, or in the event of bankruptcy proceedings if we believe in good faith that doing so is reasonably necessary or appropriate to protect the rights, property, or safety of UpKeep, our users, our employees, copyright owners, third parties, or the public, including without limitation to protect UpKeep or our users from fraudulent, abusive, inappropriate, or unlawful use of the Services to enforce or apply this Policy or our other policies or agreements in connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition, or in any other situation where information may be disclosed or transferred as one of the business assets of UpKeep EXHIBIT F Nothing herein restricts the sharing of aggregated or anonymized information, which may be shared with third parties without your consent. This Policy in no way restricts or limits our collection and use of aggregate or de-identified information. Links to Third-Party Sites and Services The Services may contain links to other websites. We are not responsible for the practices employed by websites or services linked to or from the Services, nor the information or content provided to or contained therein. Please remember that when you use a link to go from the Services to another website, this Policy does not apply to those third-party websites or services. Your browsing and interaction on any third-party website or service, including those that have a and policies before proceeding. 3. How We Protect Your Information We take measures designed to protect Personal Information in an effort to prevent loss, misuse, unauthorized access, disclosure, alteration, and destruction, such as the use of firewalls, password protection, secure socket layer, encryption, and other security measures. We will only keep your Personal Information for as long as necessary to fulfill the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements. We may also retain and use your Personal Information for as long as necessary to resolve disputes and/or enforce our rights. Where we rely on your consent to process your Personal Information, you have the right to decline consent and/or if provided, to withdraw consent at any time. This will not affect the lawfulness of processing prior to the withdrawal of your consent. Additionally, in some circumstances you can ask us to delete your Personal Information. We limit access to Personal Information to our employees, agents, contractors, and other third parties who have a business need to know. They will only process Personal Information on our instructions and they are subject to a duty of confidentiality. We have implemented procedures to handle any suspected Personal Information breach and will notify you and any applicable regulator of a breach as legally required. Please be aware, however, that despite our efforts, no security measures are perfect or impenetrable and no method of data transmission can be guaranteed against any interception or other type of misuse. To protect the confidentiality of information maintained in your account, you must keep your password confidential and not disclose it to any other person. You are responsible for all uses of the Services by any person using your password. Please advise us immediately by misused or if you suspect a security breach. confidentiality obligations to each other. In the event of any conflict between Exhibit C and this privacy policy, Exhibit C shall control. 4. International Transfers European Users If you choose to use the Services from the EU, the UK, Switzerland, or other regions of the world with laws governing data collection and use that may differ from U.S. law, please note that you are transferring your Personal Information outside of those regions to the U.S. for storage and processing. By providing any information, including Personal Information, on or to the Services, you consent to such transfer, storage, and processing. EXHIBIT F As described in this Policy, we may share Personal Information with third parties and may be required to disclose information in response to lawful requests by public authorities, including to meet national security or law enforcement requirements. The legal grounds for our processing your Personal Information for the purposes in this Policy are as follows: you provided your consent by agreeing to this Policy, which you may withdraw at any time by emailing us at the email address below it is necessary for our contractual relationship the processing is necessary for us to comply with our legal or regulatory obligations the processing is in our legitimate interest as a provider of the Services (for example, to protect the security and integrity of our systems and to provide you with customer service and the core functionality of the Services) Other International Transfers If you are located outside the U.S., the EU, the UK, and Switzerland, and you choose to provide Personal Information to us, we may transfer your Personal Information to the U.S. and process it there (or any other country where we operate or may have co-locations). When you provide Personal Information, it may be sent to servers located in the U.S. and other countries around the world. If you reside or are located within the EU, the UK, or Switzerland and such transfers occur, we take appropriate steps in an effort to provide the same level of protection for the processing carried out in any such countries as you would have within the EU, the UK, or Switzerland to the extent feasible under applicable law. The Services is not directed to children under 16 and we do not knowingly collect Personal Information from children under 16. If we learn that we have collected Personal Information of a child under 16, we will take steps to delete such information from our files as soon as possible. 6. Accessing and Modifying Your Information If you have an account on the Services, you can access and modify your Personal Information associated with your account in your profile settings or by emailing us at the email address below. We will take steps to delete your Personal Information as soon as is practicable, but we may not be able to modify or delete your Personal Information in all circumstances, and some information may remain in archived/backup copies for our records and as otherwise required by law. instructions in those emails or by emailing us at the email address below. If you opt out, we may still send you non-promotional emails, such as emails about your account or our ongoing business relations (i.e. account verification, transactional communications, changes/updates to features of the Services, and technical and security notices). 7. Changes and Updates to the Policy parties. Any amendment to this privacy policy is applicable only through a formal contract amendment signed by both parties. 8. Contact EXHIBIT F Please contact us with any questions regarding this Policy at privacy@onupkeep.com. To submit a request related to your Personal Information, please contact us at the email above or at 1-855- 633-7889.