HomeMy WebLinkAboutAgreement A-19-464 with NEOGOV.pdf-1-
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this day of ,
2019, by and between the COUNTY OF FRESNO, a political subdivision of the State of California
("COUNTY"), and GovernmentJobs.com, Inc., doing business as NEOGOV, a California corporation,
whose address is 300 Continental Boulevard Suite 565, El Segundo, CA 90245 ("CONTRACTOR").
W I T N E S S E T H:
WHEREAS, COUNTY and CONTRACTOR entered into Purchasing Agreement No. P-18-197-C
(“Purchasing Agreement”) on April 26, 2018 for a recruitment software and application tracking
management system (“Insight”), which allows COUNTY to electronically manage applicant information in
relation to COUNTY’s recruitment process;
WHEREAS, due to the COUNTY’s desire to purchase additional modules through CONTRACTOR,
COUNTY desires to supersede, amend, restate and replace the Purchasing Agreement with this
Agreement;
WHEREAS, COUNTY additionally desires to purchase from CONTRACTOR software license,
installation, training, data conversion, professional services, and software maintenance of CONTRACTOR’s
employee performance management software module (“Perform”), which would allow COUNTY to
electronically automate employee performance evaluations countywide;
WHEREAS, COUNTY desires to purchase from CONTRACTOR “NEOGOV Integration” to ensure
employee data is updated across all modules;
WHEREAS, COUNTY desires to purchase from CONTRACTOR continuous maintenance and
support for Insight, Perform, and NEOGOV Integration;
WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the purchase of
the right to use the software license, and maintenance and support of the Insight, Perform, and NEOGOV
Integration software, and desire to replace, restate, and supersede the Purchasing Agreement;
WHEREAS, this Agreement shall be retroactive to May 15, 2018, and shall replace, restate, and
supersede the Purchasing Agreement in its entirety.
24th September
Agreement No. 19-464
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NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein
contained, the parties agree that the Purchasing Agreement shall be amended, superseded, restated, and
replaced in its entirety by this Agreement, and further agree as follows:
1. DEFINITIONS:
The following terms used throughout this Agreement shall be defined as follows:
Acceptance Criteria:
The performance and operating specifications which the System must meet at a minimum, as set
out or referred to in this Agreement.
Acceptance Test:
The process of testing a specific function or functions to determine if the operation or operations
are as stated in this Agreement.
Change Control Process:
Process used by the Information Services Division of COUNTY’s Internal Services Department
(ISD) to inform staff of new or updated production use systems.
County System Hardware:
The central processing units owned or leased by COUNTY which are described in this
Agreement, on which COUNTY is licensed to use the System Software, any back-up equipment
for such central processing units, and any peripheral hardware such as terminals, printers, and
Personal Computers, as described in this Agreement.
COUNTY System Software:
The operating system and database software installed on the COUNTY System Hardware.
Final System Acceptance:
When it is determined by COUNTY that all necessary deliverables have been delivered, the data
has been converted, the base Perform software has been successfully installed and tested, and
the Perform performs all functions in accordance with its specifications.
First Production Use:
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Date of first use of the system in a production environment.
License:
The meaning assigned to the term “License,” as defined in Section 2(A) of this Agreement, and
the rights and obligations that it creates under the laws of the United States of America and the
State of California, including without limitation, copyright and intellectual property law.
Monies:
The terms "Monies", "Charges", "Price", and "Fees" will be considered to be equivalent.
Public Records:
Public Records includes any writing containing information relating to the conduct of the public's
business that is prepared, owned, used, or retained by any state or local agency, regardless of
physical form or characteristics.
Supplier:
The terms "Supplier", "Vendor", and "Governmentjobs.com Inc." and/or “NEOGOV” all refer to
CONTRACTOR, and are considered to be equivalent throughout this Agreement.
System:
The System Software and System Documentation, collectively. Reference to the "System" shall
include any component thereof. All modifications and enhancements to the System shall be
deemed to be part of the System as defined herein and shall be subject to all terms and
conditions set forth herein. The System consists of Perform, which supports the COUNTY, all
interfaces, and third-party software required for the system to function.
System Documentation:
The documentation relating to the System Software, and all manuals, reports, brochures, sample
runs, specifications and other materials comprising such documentation provided by
CONTRACTOR in connection with the System Software pursuant to this Agreement.
System Operation:
The general operation of COUNTY's hardware and all software including, but not limited to,
system restarts, configuration and operation of system peripherals (such as printers, modems,
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and terminals), installation of new software releases, and other related activities.
System Installation:
All software has been delivered, has been physically loaded on a Computer, and COUNTY has
successfully executed program sessions.
System Software:
Perform that certain computer software described in this Agreement provided by
CONTRACTOR, and all interfaces, coding, tapes, disks, modules and similar materials
comprising such software or on which it is stored. System Software shall not include operating
system software, or any other Third-Party Software.
User:
The terms "User", "Customer," and "Licensee" all refer to COUNTY, and are considered to be
equivalent throughout this Agreement.
2. OBLIGATIONS OF THE CONTRACTOR
A. SOFTWARE LICENSE
I. GRANT OF LICENSE
CONTRACTOR grants to COUNTY, and COUNTY accepts a non-exclusive, non-transferable,
license to use Perform that is subject to the terms and conditions set forth in this Agreement.
II. SCOPE OF LICENSE
The license granted herein shall consist solely of the non-exclusive, non-transferable right of
COUNTY to operate the System Software.
III. OWNERSHIP
The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, title and full
ownership of all rights in and to the System Software, System Documentation, and all other materials
provided to COUNTY by CONTRACTOR under the terms of this Agreement shall remain with
CONTRACTOR. COUNTY will take reasonable steps to protect trade secrets of the System Software and
System Documentation. Ownership of all copies is retained by CONTRACTOR. COUNTY may not
disclose or make available to third parties the System Software or System Documentation or any portion
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thereof. CONTRACTOR shall own all right, title and interest in and to all corrections, modifications,
enhancements, programs, and work product conceived, created or developed, alone or with COUNTY or
others, as a result of or related to the performance of this Agreement, including all proprietary rights therein
and based thereon. Except and to the extent expressly provided herein, CONTRACTOR does not grant
to COUNTY any right or license, express or implied, in or to the System Software and System
Documentation or any of the foregoing. The parties acknowledge and agree that, as between
CONTRACTOR and COUNTY, full ownership of all rights in and to all COUNTY Data, whether in magnetic
or paper form, including, without limitation, printed output from the System, are the exclusive property of
COUNTY. COUNTY Data shall mean all data that is owned or developed by COUNTY, whether provided
to CONTRACTOR by COUNTY or provided by a third party to CONTRACTOR in connection with
CONTRACTOR’s provision of Services to COUNTY, including Personnel or Job Seeker Profile Data
collected, loaded into, or located in COUNTY data files maintained by CONTRACTOR. CONTRACTOR
intellectual property, including but not limited to the Services and all derivative works thereof,
CONTRACTOR Confidential Information, and Platform Data do not fall within the meaning of the term
“COUNTY Data”. COUNTY exclusively own all right, title, and interest in and to all COUNTY Data.
COUNTY grants CONTRACTOR a license to host, use, process, display, create non-personal derivative
works of, and transmit COUNTY Data to provide the Services.
IV. POSSESSION, USE, AND UPDATE OF SOFTWARE
COUNTY agrees that only COUNTY will use the System Software for its own internal purposes.
CONTRACTOR may, at reasonable times, inspect COUNTY’s premises and equipment to verify that all
of the terms and conditions of this license are being observed. CONTRACTOR may create, from time to
time, updated versions of the System Software and System Documentation, and CONTRACTOR shall
make such System Updates available to COUNTY. All System Updates shall be licensed under the terms
of this Agreement. COUNTY agrees to follow the prescribed instructions for updating System Software
and System Documentation provided to COUNTY by CONTRACTOR.
V. TRANSFER OF SOFTWARE
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COUNTY shall not rent, lease, license, distribute, sell, transfer, or assign this license, the System
Software, or the System Documentation, or any of the information contained therein other than COUNTY
data, to any other person or entity, whether on a permanent or temporary basis, and any attempt to do so
will constitute a breach of this Agreement. No right or license is granted under this Agreement for the use
or other utilization of the licensed programs, directly or indirectly, for the benefit of any other person or
entity, except as provided in this Agreement.
VI. [Intentionally Omitted]
VII. RESTRICTIONS ON USE
COUNTY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise
commercially exploit or make available to any third party the System Software or the System
Documentation in any way; (ii) modify or make derivative works based upon the System Software or the
System Documentation; (iii) create Internet “links” to the System Software or “frame” or “mirror” any
System Documentation on any other server or wireless or Internet-based device; (iv) send spam or
otherwise duplicative or unsolicited messages in violation of applicable law; (v) send or store infringing,
obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to
children or violative of third party privacy rights; (iv) send or store material containing software viruses,
worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere
with or disrupt the integrity or performance of the System Software or the data contained therein, including
but not limited to COUNTY Data; (viii) attempt to gain unauthorized access to the System Software or its
related systems or networks; (ix) reverse engineer or access the System Software in order to (a) build a
competitive product or service, (b) build a product using similar ideas, features, functions or graphics of
the System Software, or (c) copy any ideas, features, functions or graphics of the System Software.
VIII. INTELLECTUAL PROPERTY, TRADEMARK, AND COPYRIGHT
CONTRACTOR retains ownership of the System Software, any portions or copies thereof, and all
rights therein. CONTRACTOR reserves all rights not expressly granted to COUNTY. This License does
not grant COUNTY any rights in connection with any trademarks or service marks of CONTRACTOR, its
suppliers or licensors. All right, title, interest and copyrights in and to the System Software and the
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accompanying System Software Documentation and any copies of the System Software are owned by
CONTRACTOR, its suppliers or licensors. All title and intellectual property rights in and to the content
which may be accessed through use of the System Software are the property of the respective content
owner and may be protected by applicable copyright or other intellectual property laws and treaties. This
License grants COUNTY no rights to use such content.
B. SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY
I. SYSTEM INSTALLATION
CONTRACTOR shall supply access to Perform in accordance with this Agreement.
II. TRAINING
CONTRACTOR will conduct remote “train-the-trainer” training of COUNTY staff at a time approved
in writing by COUNTY.
III. DOCUMENTATION
CONTRACTOR shall provide to COUNTY Perform System Documentation, which shall consist of
electronic media files. The electronic media files must be printable using PC software normally available
at COUNTY. CONTRACTOR shall provide new System Documentation corresponding to all new Software
Upgrades. COUNTY may print additional copies of all documentation. All System Documentation is to be
used by COUNTY only for the purposes identified within this Agreement.
C. SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR
System maintenance and support includes System Updates as they are released by
CONTRACTOR, including updates as required as a result of Federal Regulatory Changes. The first day
of production use will be identified by COUNTY and communicated to CONTRACTOR. CONTRACTOR
will support day-to-day operation of the System as follows:
I. SUPPORT HOURS/SCOPE:
Provide unlimited technical assistance by phone during normal coverage hours
(7:30 a.m. to 5:00 p.m. Pacific Standard Time (PST), Monday through Friday, except
CONTRACTOR and COUNTY holidays), toll-free telephone assistance to keep the System
in, or restored to, normal operating condition. The object of this support will be to answer
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specific questions related to the System Software and the application thereof. Support
provided under this Agreement does not include training of new personnel (after initial staff
is trained), operation of hardware, or solving other hardware/software problems unrelated
to the System Software.
II. SUPPORT RESPONSE:
During the term of this Agreement, CONTRACTOR will (a) use commercially
reasonable effort to correct errors or malfunctions in the System as supplied by
CONTRACTOR that prevent the System from operating in conformance with the
specifications set forth in this Agreement, or (b) provide a commercially reasonable
alternative that will conform to the specifications set forth in this Agreement.
If analysis by CONTRACTOR indicates a reported problem is caused by a
reproducible error or malfunction in the then-current release of the System Software, as
supplied and maintained by CONTRACTOR, that significantly impacts effective use of the
System by COUNTY, CONTRACTOR will, if the System is inoperable, as reported by
COUNTY, provide continuous effort to correct the error or to resolve the problem by
providing a circumvention.
In such cases, CONTRACTOR will provide COUNTY with corrective information,
such as corrective documentation and/or program code. CONTRACTOR will endeavor to
respond to COUNTY's service request no later than four (4) business hours from the time
a call has been received by CONTRACTOR. In the event that a person with the necessary
expertise is not available when the call is received, CONTRACTOR will endeavor to
respond to the service request no later than within one (1) business day.
III. REMOTE VIRTUAL PRIVATE NETWORK (VPN) DIAGNOSTICS
Remote VPN Diagnostics Support includes:
a. Diagnostic or corrective actions necessary to restore proper Perform
operation;
b. Diagnostic actions which attempt to identify the cause of system problem;
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c. Correction of data file problem
CONTRACTOR product specialists will provide diagnostics via VPN on Perform.
COUNTY will provide any required hardware and equipment necessary at COUNTY for
CONTRACTOR VPN support.
IV. ERROR CORRECTION PROCESS
If, during the term of this Agreement, COUNTY determines that software error(s) exist, COUNTY
will first follow the error procedures specified in the System Documentation. If following the error
procedures does not correct the software error, COUNTY shall immediately notify CONTRACTOR, setting
forth the defects noted with specificity. Upon notification of a reported software error, CONTRACTOR
shall have five (5) days to determine if any actual software error exist and, if so, endeavor to correct such
software errors. At CONTRACTOR’s request, additional time to solve difficult problems will not be
unreasonably withheld. Within fifteen (15) days of correction, COUNTY shall retest the System Software
and report any other software errors.
V. TECHNICAL INFORMATION
CONTRACTOR will provide technical information to COUNTY from time to time. Such information
may cover areas such as Perform usage, third party software. Technical information will be provided at
the discretion of CONTRACTOR, but will not be unreasonably withheld.
D. ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR
CONTRACTOR may provide additional maintenance services (“Additional Maintenance and
Support Services” or “Additional Maintenance Services”) at an additional charge. Charges will be as
identified in Section 6 (A) of this Agreement; or, if not included in this Agreement, charges will be at current
prices in effect at the time goods or services are provided. Any Additional Maintenance and Support
Services requested by COUNTY and determined by CONTRACTOR to be billable by CONTRACTOR
must be identified as a chargeable service prior to the service being performed, and must be approved in
writing in advance by COUNTY’s Contract Administrator. Additional Maintenance Services include, but
are not limited to, the following:
I. ADDITIONAL TRAINING
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A specific amount of training is specified in this Agreement. Additional training at a
COUNTY facility is available upon request by COUNTY at an additional charge under the
terms of this Agreement. Requests for additional training will be reviewed by
CONTRACTOR and must be requested in writing in advance by COUNTY’s Contract
Administrator. Charges will be at rates identified in this Agreement.
II. [Intentionally Omitted]
III. [Intentionally Omitted]
IV. CUSTOM PROGRAMMING
Requests for supplemental programming or customization of system features not
covered under this Agreement are available to COUNTY. Such requests will be reviewed
by CONTRACTOR, and must be requested in writing in advance by the COUNTY’s
Contract Administrator. Charges will be at rates identified in this Agreement.
E. CONTRACTOR PROJECT COORDINATOR
Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator who will
act as the primary contact person to interface with COUNTY for implementation, maintenance and support
of Perform.
F. SYSTEM UPDATES AND NEW PRODUCTS
I. SYSTEM UPDATES
From time to time CONTRACTOR will develop and provide System Updates to
COUNTY for the COUNTY’S licensed CONTRACTOR software. System Updates shall be
subject to the terms and conditions of this Agreement and shall be deemed licensed
System Software hereunder and will be made available to COUNTY at no additional charge
to COUNTY. System Updates will be made available to COUNTY at the discretion of
CONTRACTOR but will not be unreasonably withheld.
II. NEW PRODUCTS
CONTRACTOR may from time to time release new software with capabilities
substantially different from or greater than the System Software ("New Products") and
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which therefore do not constitute System Updates. These New Products will be made
available to COUNTY at a cost not to exceed CONTRACTOR’s then standard rates for
customers similarly situated.
G. OPERATING SYSTEM UPDATES
The application must run on an operating system (O/S) that is consistently and currently supported
by the operating system vendor. Applications under maintenance are expected to always be within 1 year
of current in regards to the O/S. Outdated or unsupported O/S will not be implemented on the production
network.
COUNTY will notify CONTRACTOR when a critical security patch is released. CONTRACTOR will
have thirty (30) days to ensure application can perform in the updated environment. With approval from
CONTRACTOR, COUNTY will apply patches to both the operating system, and non-critical security
subsystems as releases are available from operating system vendors. The application is expected to
perform in this environment. CONTRACTOR is expected to keep their software within one (1) year of
current in order to operate in this environment. These patches include critical O/S updates and security
patches.
H. ANTI-VIRUS MANAGEMENT
COUNTY will actively run anti-virus management, where appropriate, on all application servers
and PCs. The application is expected to perform adequately while anti-virus management is active.
I. ADHERE TO CHANGE CONTROL PROCESS
CONTRACTOR must adhere to COUNTY’s Change Control Process, which shall be provided to
CONTRACTOR in writing. COUNTY employs a procedure to implement updates, upgrades, and version
releases to a system that is in production use. This forum allows ISD to inform staff (Help Desk, Network,
Server, Database, Security, and Analysts) of upcoming changes to a production system. CONTRACTOR
must inform ISD a minimum of 1 week prior to any planned, non-emergency changes so that the Change
Control Process may be followed.
J. OTHER
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Unless otherwise specified, for third-party software, CONTRACTOR shall provide standard
documentation in electronic form (via the Internet or File Transfer Protocol (FTP)).
The system being provided runs in a Local Area Network and Web environment. As such, the
performance of the system is directly related to, among other things: available network bandwidth, and
the performance of other applications. For this reason, CONTRACTOR makes no guarantees as to
system response time.
3. OBLIGATIONS OF THE COUNTY
A. COUNTY CONTRACT ADMINISTRATOR
COUNTY appoints its Chief Information Officer (CIO), or his or her designee, as COUNTY's
Contract Administrator with full authority to deal with CONTRACTOR in all matters concerning this
Agreement.
B. CONTRACTOR RESPONSE COMMITMENT
COUNTY will f ollow its present practices to safeguard System Software delivered to COUNTY by
CONTRACTOR. A copy of COUNTY’S “Information Technology (IT) Standards and Preferences” will be
made available upon request.
C. [Intentionally Omitted]
D. [Intentionally Omitted]
E. ACCEPTANCE TESTING
COUNTY shall approve Final System Acceptance when Perform has been successfully tested and
satisfactorily performs all functions necessary pursuant to this Agreement, and all deliverables identified
in this Agreement as required for acceptance have been received by COUNTY.
F. ACCEPTANCE TESTING PROCESS
Following delivery and installation, CONTRACTOR shall test Perform along with COUNTY
personnel.
G. FACILITIES AND PREPARATION
COUNTY will at its own expense provide all necessary labor and materials for site preparation,
electrical services, and cabling required for System Installation. COUNTY shall receive the System
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Software and will follow instructions provided by CONTRACTOR to load it on COUNTY’s System
Hardware to prepare the System for processing.
H. SYSTEM HARDWARE AND SYSTEM SOFTWARE
COUNTY will at its own expense provide and properly maintain and update on an on-going basis
all necessary COUNTY System Software and County System Hardware required to operate Perform. Said
COUNTY System Software and County System Hardware shall meet or exceed CONTRACTOR’s
recommendations.
As part of COUNTY’s responsibility for computer infrastructure, COUNTY is responsible for
ensuring that data is secure and protected at all times. CONTRACTOR is not responsible for and cannot
be held liable for inadvertent data disclosure or theft from COUNTY facilities.
I. COUNTY PROJECT MANAGER
Upon execution of this Agreement, COUNTY’s Contract Administrator shall designate one
individual from ISD who will function as Project Manager with responsibility for day-to-day management
of the project for implementation of Perform. The Project Manager and COUNTY personnel shall have the
necessary and appropriate training and experience to implement the terms of this Agreement. COUNTY
acknowledges CONTRACTOR’S reliance on same.
J. OTHER COUNTY OBLIGATIONS
1) Technical assistance from COUNTY’s ISD staff will be provided during the
performance of the installation of the System Software. In particular, COUNTY will
provide:
a. Network connectivity and troubleshooting assistance.
b. Ability to monitor network traffic and isolate bottlenecks.
c. Technical assistance concerning the integration with existing COUNTY
systems (if applicable).
d. Expertise to handle issues with PCs, printers, and cabling before,
during, and after rollout.
4. TERM
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The term of this Agreement shall be for a period of three (3) years, commencing retroactive to May
15, 2018, through and including May 14, 2021. This Agreement may be extended for two (2) additional
consecutive twelve (12) month periods upon written approval of both parties no later than thirty (30) days
prior to the first day of the next twelve (12) month extension period. The Director of Internal Services/Chief
Information Officer (CIO) or his or her designee is authorized to execute such written approval on behalf of
COUNTY based on CONTRACTOR’S satisfactory performance.
5. TERMINATION
A. Non-Allocation of Funds - The terms of this Agreement, and the services to be
provided hereunder, are contingent on the approval of funds by the appropriating government agency. Should
sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at
any time without penalty by giving the CONTRACTOR thirty (30) days advance written notice.
B. Breach of Contract - The COUNTY may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of the COUNTY there is:
1) An illegal or improper use of funds;
2) A failure to comply with any term of this Agreement;
3) A substantially incorrect or incomplete report submitted to the COUNTY;
4) Improperly performed service.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of
this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such
payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. The
COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any funds
disbursed to the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not
expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund any
such funds upon demand.
C. Under circumstances other than those set forth above, this Agreement may be
terminated by COUNTY by giving thirty (30) days advance written notice of an intention to terminate to
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CONTRACTOR.
D. Within sixty (60) days of notification of termination of this Agreement, CONTRACTOR shall provide
COUNTY with dedicated data files suitable for importation into commercially available database software
(e.g., MS-Access or MS-SQL). The dedicated data files will be comprised of COUNTY’s data contained in
CONTRACTOR’s system. The structure of the relational database will be specific to COUNTY’s data, and
will not be representative of the proprietary NEOGOV database.
E. In the case of termination by either party, any advance payment by COUNTY which applies to the
remaining unearned months of the Agreement shall be returned to COUNTY on a pro rata basis within thirty
(30) days of the termination date.
6. COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR, and
CONTRACTOR agrees to receive compensation as outlined in the attached Exhibit B – Pricing, which is
incorporated by reference. CONTRACTOR shall submit annual invoices referencing the provided contract
number, either electronically or via mail, in triplicate to the County of Fresno, Internal Services Department,
Attention: Business Office, 333 W. Pontiac Way, Clovis, CA 93612, (isdbusinessoffice@fresnocountyca.gov).
COUNTY and CONTRACTOR agree that COUNTY has previously paid to CONTRACTOR the
Insight Enterprise Software License fees of $42,104.38 covering timeframe May 15, 2018 through May 25,
2019, $4,244.12 covering timeframe May 26, 2019 through June 30, 2019, and $38,786.56 covering
timeframe July 1, 2019 through May 25, 2020, pursuant to the Purchasing Agreement.
A. Optional Products and/or Services Fees
OPTIONAL PRODUCTS/SERVICES COST
1. Additional Insight users over the 8,000-user
threshold
$8.27 per user exceeding the 8,000-user threshold
2. Additional Perform users over the 8,000-user
threshold
$12.00 per user exceeding the 8,000-user
threshold
3. Background Check Integration $6,000.00 per year
Optional Products and/or Services Fees, as listed in the table above, shall only be performed and/or
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paid to CONTRACTOR if any such services set forth herein are performed by CONTRACTOR and/or
purchased by COUNTY upon COUNTY’s written request. The Director of Internal Services/Chief Information
Officer is authorized to purchase additional products and/or services on behalf of the COUNTY. In no event
shall Additional Services Fees exceed $50,000.00.
In no event shall services performed under this Agreement exceed $334,119.33 during the base
three-year term of this Agreement. If this Agreement is extended for an additional Year 4, in no event shall
compensation for the four-year term exceed $500,731.81. If this Agreement is extended for an additional
Year 5, in no event shall compensation for the total possible five-year term exceed $674,899.93. All amounts
previously paid to CONTRACTOR under the Purchasing Agreement are included in this total not to exceed
amount. It is understood that all expenses incidental to CONTRACTOR'S performance of services under this
Agreement shall be borne by CONTRACTOR. COUNTY shall pay CONTRACTOR within forty-five (45) days
of receipt of an approved invoice.
7. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that
CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all
times be acting and performing as an independent contractor, and shall act in an independent capacity and
not as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY. Furthermore,
COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR
shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement so
as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions
thereof.
CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and
regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right to
employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable and
responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition,
CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating to payment
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of CONTRACTOR'S employees, including compliance with Social Security withholding and all other
regulations governing such matters. It is acknowledged that during the term of this Agreement,
CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement.
8. MODIFICATION: Any matters of this Agreement may be modified from time to time by the
written consent of all the parties without, in any way, affecting the remainder.
9. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor
their rights or duties under this Agreement without the prior written consent of the other party.
10. HOLD HARMLESS: Subject to subsections (b) through (d) of this Section, if a third party
makes a claim against COUNTY that any CONTRACTOR intellectual property furnished by CONTRACTOR
and used by COUNTY infringes a third party’s intellectual property rights, CONTRACTOR will defend the
COUNTY against the claim, and indemnify the COUNTY all damages and liabilities incurred by COUNTY,
including regulatory fines and penalties, legal costs, claims, and damages awarded by the Court to the third-
party claiming infringement, or the settlement agreed to by CONTRACTOR, if COUNTY does the following:
(i) notifies CONTRACTOR promptly in writing, not later than thirty (30) days after COUNTY receives notice
of the claim (or sooner if required by applicable law); (ii) gives CONTRACTOR control of the defense and
any settlement negotiations; and (iii) gives CONTRACTOR the information, authority, and assistance
reasonably necessary to defend against or settle the claim. CONTRACTOR will not indemnify COUNTY
if COUNTY unreasonably alters the Service or Service Specifications, or unreasonably uses it outside the
scope of use, or if COUNTY uses a version of the Service or Service Specifications which has been
superseded, if the infringement claim could have been avoided by using an unaltered current version of
the Services or Service Specifications which was provided to COUNTY, or if the COUNTY continues to
use the infringing material after the subscription expires. CONTRACTOR will not indemnify COUNTY to
the extent that an infringement claim is based upon any information, design, specification, instruction,
software, data, or material not furnished by CONTRACTOR. CONTRACTOR will not indemnify COUNTY
for any portion of an infringement claim that is based upon the combination of Service or Service
Specifications with any products or services not provided by CONTRACTOR. CONTRACTOR will not
indemnify COUNTY for infringement caused by COUNTY’s actions against any third party if the Services
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as delivered to County and used in accordance with the terms of the Agreement would not otherwise
infringe any third-party intellectual property rights.
If, in any suit, action, proceeding or claim relating to the foregoing, a temporary restraining order or
preliminary injunction is granted, CONTRACTOR shall make every reasonable effort to secure the
suspension of the injunction or restraining order. If, in any such suit, action, proceeding or claim, the services,
software or any Equipment provided by CONTRACTOR or any part, combination or process thereof, is held
to constitute an infringement and its use is enjoined, CONTRACTOR shall immediately (a) pay the reasonable
direct out-of-pocket costs and expenses to secure a license to use such infringing work, replace the infringing
work or modify the same so that it becomes non-infringing, and (b) make every reasonable effort to secure
for the COUNTY a license, at no cost to COUNTY, authorizing COUNTY’s continued use of the infringing
work. If CONTRACTOR is unable to secure such license within a reasonable time, CONTRACTOR, at its
own expense and without impairing performance requirements of the services, software, or any Equipment
provided by CONTRACTOR as part of this Agreement, shall either replace the affected services, software,
or any Equipment provided by CONTRACTOR as part of this Agreement, combination or process thereof,
with non-infringing services, software, or other equipment, or modify the same so that they become non-
infringing.
This Section 10 provides the exclusive remedy for any intellectual property infringement claims or
damages against CONTRACTOR.
The provisions of this Section 10 shall survive the termination of this Agreement.
11. INSURANCE
Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third
parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance
policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint
Powers Agreement (JPA) throughout the term of the Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00)
per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This policy shall be issued
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on a per occurrence basis.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars
($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include any auto
used in connection with this Agreement.
C. Technology Professional Liability (Errors and Omissions)
Technology Professional Liability (Errors and Omissions) Insurance appropriate to
CONTRACTOR’s profession, with limits not less than Two Million Dollars ($2,000,000) per occurrence or
claim, Two Million Dollars ($2,000,000) aggregate. Coverage shall be sufficiently broad to respond to the
duties and obligations as is undertaken by CONTRACTOR in this Agreement and may include, but not be
limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information
theft, damage to or destruction of electronic information, release of private information, alteration of
electronic information, extortion and network security. The policy may provide coverage for breach
response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits
sufficient to respond to these obligations.
D. Cyber Liability
CONTRACTOR shall obtain cyber liability insurance with limits not less than Two Million Dollars
($2,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate. Coverage shall include,
but not be limited to, claims involving Cyber Risks. The cyber liability policy shall be endorsed to cover the full
replacement value of damage to, alteration of, loss of, or destruction of intangible property (including but not
limited to information or data) that is in the care, custody, or control of the CONTRACTOR.
For purposes of the technology professional liability insurance and the cyber liability insurance
required under this Agreement, Cyber Risks include, but are not limited to, (i) security breaches, which
include disclosure of, whether intentional or unintentional, information provided by COUNTY, information
provided by or obtained from any person, or personal-identifying information relating to any person, to an
unauthorized third party; (ii) breach of any of CONTRACTOR’s obligations under this Agreement relating
to data security, protection, preservation, usage, storage, transmission, and the like; (iii) infringement of
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intellectual property including, but not limited to, infringement of copyright, trademark, and trade dress;
(iv) invasion of privacy, including any release of private information; (v) information theft by any person or
entity, whatsoever; (vi) damage to or destruction or alteration of electronic information; (vii) extortion
related to CONTRACTOR’s obligations under this Agreement regarding electronic information, including
information provided by COUNTY, information provided by or obtained from any person, or personal-
identifying information relating to any person; (viii) network security; (ix) data breach response costs,
including security breach response costs; (x) regulatory fines and penalties related to CONTRACTOR’s
obligations under this Agreement regarding electronic information, including information provided by
COUNTY, information provided by or obtained from any person, or personal-identifying information
relating to any person; and (xi) credit monitoring expenses.
E. Professional Liability
If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in
providing services, Professional Liability Insurance with limits of not less than One Million Dollars
($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate.
F. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California Labor
Code.
Additional Requirements Relating to Insurance
CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming the
County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but
only insofar as the operations under this Agreement are concerned. Such coverage for additional insured
shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its
officers, agents and employees shall be excess only and not contributing with insurance provided under
CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without a minimum of
thirty (30) days advance written notice given to COUNTY.
CONTRACTOR hereby waives its right to recover from COUNTY, its officers, agents, and employees
any amounts paid by the policy of worker’s compensation insurance required by this Agreement.
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CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to
accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under this paragraph is
effective whether or not CONTRACTOR obtains such an endorsement.
Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement,
CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the
foregoing policies, as required herein, to the County of Fresno, Internal Services Department, Attention:
Director of Internal Services/Chief Information Officer, 333 W. Pontiac Way, Clovis, CA 93612, stating that
such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers,
agents and employees will not be responsible for any premiums on the policies; that for such worker’s
compensation insurance the CONTRACTOR has waived its right to recover from the COUNTY, its officers,
agents, and employees any amounts paid under the insurance policy and that waiver does not invalidate the
insurance policy; that such Commercial General Liability insurance names the County of Fresno, its officers,
agents and employees, individually and collectively, as additional insured, but only insofar as the operations
under this Agreement are concerned; that such coverage for additional insured shall apply as primary
insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers, agents and
employees, shall be excess only and not contributing with insurance provided under CONTRACTOR's
policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty (30)
days advance, written notice given to COUNTY.
In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein provided,
the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement upon the
occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the State of California, and
such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII
or better.
12. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business hours,
and as often as the COUNTY may deem necessary, make available to the COUNTY for examination all of
its records and data with respect to the matters covered by this Agreement. The CONTRACTOR shall, upon
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request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to
ensure CONTRACTOR'S compliance with the terms of this Agreement.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the
examination and audit of the California State Auditor for a period of three (3) years after final payment under
contract (Government Code Section 8546.7).
13. NOTICES: The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
COUNTY CONTRACTOR
COUNTY OF FRESNO Governmentjobs.com, Inc. Director of Internal Services/CIO 300 Continental Blvd., Suite 565 333 W. Pontiac Way El Segundo, CA 90245 Clovis, CA 93612
All notices between the COUNTY and CONTRACTOR provided for or permitted under this
Agreement must be in writing and delivered either by personal service, by first-class United States mail, by
an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by
personal service is effective upon service to the recipient. A notice delivered by first-class United States mail
is effective three COUNTY business days after deposit in the United States mail, postage prepaid, addressed
to the recipient. A notice delivered by an overnight commercial courier service is effective one COUNTY
business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery
instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
is effective when transmission to the recipient is completed (but, if such transmission is completed outside of
COUNTY business hours, then such delivery shall be deemed to be effective at the next beginning of a
COUNTY business day), provided that the sender maintains a machine record of the completed transmission.
For all claims arising out of or related to this Agreement, nothing in this section establishes, waives, or
modifies any claims presentation requirements or procedures provided by law, including but not limited to the
Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810).
14. GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall only
be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance of this Agreement
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shall be governed in all respects by the laws of the State of California.
15. DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or
non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes its status to
operate as a corporation.
Members of the CONTRACTOR’s Board of Directors shall disclose any self-dealing transactions
that they are a party to while CONTRACTOR is providing goods or performing services under this
agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party
and in which one or more of its directors has a material financial interest. Members of the Board of
Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a
Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A and incorporated herein by
reference, and submitting it to the COUNTY prior to commencing with the self -dealing transaction or
immediately thereafter.
16. PRIOR SERVICES: Both parties expressly agree that the COUNTY is not waiving any
breaches or defaults under the Purchasing Agreement, whether known or unknown, by entering into this
restated Agreement.
17. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the
CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous
agreements, Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
understanding of any nature whatsoever unless expressly included in this Agreement, including, without
limitation, the Purchasing Agreement, which Purchasing Agreement shall be deemed null and void and of no
further force and effect whatsoever following the effective date of this Agreement.
///
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
2 hereinabove written.
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Print Name & T itle
16 FOR ACCOUNTING USE ONLY:
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Fund: 1020
Subclass: 10000
ORG : 8905
Account: 7309
COUNTY OF FRESNO
/Z ~.;:----:2-
Nathan Magsig , Chairman of the Board of
Supervisors of the County of Fresno
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno , State of California
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NEO G M
TN WITNESS WHEREOF, the parties have caused this Order to be executed by their respective duly authorized officers as of the
date set forth below, and consent to the Agreement.
Customer
Entity Name: County of Fresno
Signature:
Print Name:
Date:
ATTEST:
Nathan Magsig, Chairman of the
Board of Supervisors of the
County of Fresno
BERNICE E . SEIDEL
Clerk of the Board of Supervisors
Cou n~ Fres~o, State of California
By J..)',.\(\JL ~
Go v ernment" ob s .com , Inc . DBA "NEOGOV"
Signature:
Print Name: Sr-Cf~ ~o
Date: -r ( 26{ 11
2 of2
PRODUCTS/SERVICES YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 TOTAL NOTES
Insight $42,104.38 $43,030.68 $43,820.35 $47,441.10 $49,813.16 $226,209.67
The following amounts were paid through Purchasing Agreement #P-18-
197-C:
5/15/18 - 5/25/18: $1,122.78 for Year 1
5/26/18 - 5/25/19: $40,981.60 for Year 1
5/26/19 - 6/30/19: $4,244.12 for Year 2
7/1/19 - 5/25/20: $38,786.56 for Year 2
Year 3 Insight full year cost: $45,182.00
PRODUCTS/SERVICES YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 TOTAL NOTES
Perform N/A $63,890.92 $98,734.65 $103,671.38 $108,854.95 $375,151.90 Year 2 Peform full year cost: $94,033.00
Perform - Setup/Training N/A $6,500.00 N/A N/A N/A $6,500.00
Perform and Integrations will be effective on September 24, 2019. Perform
& Integration Year 2 charges will be pro-rated for time period 9/24/2019 -
5/14/2020.
Employee Integration - Annual License N/A $2,038.36 $3,000.00 $3,000.00 $3,000.00 $11,038.36 Year 2 Integration full year cost: $3,000.00
Employee Integration - Setup N/A $6,000.00 N/A N/A N/A $6,000.00
TOTAL $0.00 $78,429.27 $101,734.65 $106,671.38 $111,854.95 $398,690.26
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 TOTAL
TOTAL $42,104.38 $121,459.95 $145,555.00 $154,112.48 $161,668.11 $624,899.93
Additional Products/Services Fees listed in
Section 6.A. of the Board agreement
(optional - only paid if used)
$0.00 $12,500.00 $12,500.00 $12,500.00 $12,500.00 $50,000.00
TOTAL $42,104.38 $133,959.95 $158,055.00 $166,612.48 $174,168.11 $674,899.93
3-Year Total
4-Year Total
Purch Agt Amount $85,135.06
Board Agt Amount $674,899.93
Difference $589,764.87
Exhibit B - Pricing
CURERNT PRODUCT - INSIGHT
NEW PRODUCTS - PERFORM & INTEGRATION
$500,731.81
$334,119.33
ANNUAL TOTALS