HomeMy WebLinkAboutAgreement A-17-459 with Gartner Inc..pdf
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A G R E E M E N T
THIS AGREEMENT (“Agreement”) is made and entered into this _______ day of
___________, 2017 by and between the COUNTY OF FRESNO, a political subdivision of the
State of California, hereinafter referred to as "COUNTY", and Gartner, Inc., whose corporate
address is at 56 Top Gallant Rd., Stamford, CT 06904, hereinafter referred to as
"CONTRACTOR".
R E C I T A L S
WHEREAS, COUNTY has need for subscription-based research and executive coaching
and advisory services; and
WHEREAS, CONTRACTOR, is willing and able to provide the desired services to assist
COUNTY with its stated needs; and
WHEREAS, COUNTY desires to purchase such services from CONTRACTOR as more
fully described hereinbelow.
NOW, THEREFORE, for and in consideration of the promises herein, and for other good
and valuable consideration, the parties agree as follows:
W I T N E S S E T H
I. OBLIGATIONS OF THE CONTRACTOR
CONTRACTOR shall provide the subscription-based research and related services
as set forth in CONTRACTOR’s “Service Agreement” attached hereto as Appendix 1 and
made a part of this Agreement (the “Services”).
II. OBLIGATIONS OF THE COUNTY
The COUNTY shall adhere to the terms of this Agreement, including any terms and
conditions set forth in Appendix 1.
III. APPENDIX 1
In the event of a conflict between the terms and conditions of Appendix 1 and this
Agreement, this Agreement shall prevail.
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IV. TERM
The primary term of this Agreement shall be for a period of three (3) years,
commencing on September 1, 2017, through and including August 31, 2020 (“Primary
Term”). 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. COUNTY’s Director of Internal
Services/Chief Information Officer or his/her designee, is authorized to execute such written
approval on behalf of COUNTY based on CONTRACTOR’s satisfactory performance.
V. TERMINATION
A) NON-ALLOCATION OF FUNDS
The terms of this Agreement, and the Services to be provided thereunder, are
contingent on the approval of funds by the appropriating government agency. Should
sufficient funds not be allocated, for any one of years two (2) thru three (3) of the Primary
Term, the Services provided may be modified, or this Agreement terminated, by providing
the Contractor at least thirty (30) days prior written notice before the start of a new yearly
service period.
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
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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.
CONTRACTOR may, upon thirty (30) days prior written notice to COUNTY, terminate
this Agreement if COUNTY fails to comply with any material term or condition of this
Agreement unless COUNTY cures such failure within such thirty (30) day period, or other
such timeframe as may be mutually agreed upon in writing by the parties.
VI. COMPENSATION/INVOICING
COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive
compensation as follows:
A) COMPENSATION SCHEDULE
The total fees due for each annual period this Agreement is in force shall be paid in full
annually and in advance as set forth below:
Term Period of Performance Annual Fee
Year 1 September 1, 2017 to August 31, 2018 $181,400
Year 2 September 1, 2017 to August 31, 2018 $187,205
Year 3 September 1, 2017 to August 31, 2018 $193,196
Year 4 September 1, 2017 to August 31, 2018 $202,857
Year 5 September 1, 2017 to August 31, 2018 $213,000
In no event shall services provided under this Agreement be in excess of $561,801.00
during the initial three-year term of this Agreement. In no event shall services provided be
in excess of $977,658.00 for the total potential five-year term of this Agreement. It is
understood that all expenses incidental to CONTRACTOR’s performance of services
under this Agreement shall be borne by CONTRACTOR.
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B) INVOICING
CONTRACTOR shall submit invoices (which must reference the provided contract
number), either electronically or via mail to the County of Fresno ISD, Accounts Payable,
333 W. Pontiac Way, Clovis, CA 93612 or Accounts Payable,
ISDBusinessOffice@co.fresno.ca.us. COUNTY will pay CONTRACTOR within forty-five
(45) days of receipt of an approved invoice, by mail addressed to CONTRACTOR’s
remittance address: Gartner Inc. P.O. Box 911319 Dallas, TX 75391-1319.
VII. 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 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.
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VII. CONFIDENTIALITY
A Party receiving Information (defined below) of the other will not disclose such
Information other than to persons in its organization who are required to comply with this
Section. The Party receiving Information will not use such Information for a purpose
inconsistent with the terms of this Agreement. “Information” means the Software,
Documentation and all information and intellectual property related thereto (including, but not
limited to all databases provided to COUNTY by CONTRACTOR whether created by
CONTRACTOR or its third party licensors, as well as information related to the business of
CONTRACTOR or COUNTY. Information will not include: (i) information publicly known prior to
disclosure; (ii) information coming into the lawful possession of the recipient without any
confidentiality obligation; (iii) entered the public domain through no fault of recipient subsequent
to the disclosing party's communication to the recipient, (iv) information independently
developed by the recipient, and (v) information required to be disclosed pursuant to regulatory
action or court order, provided adequate prior written notice of any request to disclose is given
to the Party whose information is to be disclosed. Each Party will exercise at least the same
degree of care to safeguard the confidentiality of the other’s Information as it does to safeguard
its own proprietary confidential information, but not less than a reasonable degree of care.
VIII. 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.
IX. 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.
X. HOLD HARMLESS
A. INDEMNITY PERSON AND/OR TANGIBLE PROPERTY - CONTRACTOR agrees to
indemnify, defend and hold harmless the COUNTY, its employees, officers and agents
from and against any third party claims, demands, loss, damage or expenses (including
reasonable attorney’s fees and court costs) relating to bodily injury or death of any
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person or damage to real and/or tangible personal property directly caused by the
negligence or willful misconduct of Contractor, its personnel, or agents during the course
of the provision of services under this Agreement.
B. INDEMNITY FOR INTELLECTUAL PROPERTY – Upon notification of a claim against
COUNTY alleging any Deliverable infringes a copyright, US patent or trade secret of any
third party, CONTRACTOR will defend such claim at its expense and will pay any costs
or damages that may be finally awarded against COUNTY. CONTRACTOR will not
indemnify COUNTY however, if the claim of infringement is caused by (1) COUNTY’s
misuse or modification of the Deliverable or (2) COUNTY’s failure to use corrections or
enhancements made available by CONTRACTOR. If any Deliverable hereunder is, or in
CONTRACTOR’s opinion is likely to be, held to be infringing, CONTRACTOR shall at its
expense and option either: (a) procure the right for COUNTY to continue using it, (b)
replace it with a non-infringing equivalent, (c) modify it to make it non-infringing, or (d)
direct the return of such deliverable and refund to COUNTY the fees paid for such
deliverable.
XI. 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 throughout the term of the Agreement:
A) COMMERCIAL GENERAL LIABILITY
Commercial General Liability Insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence and an annual aggregate of Two Million Dollars
($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may
require specific coverages including completed operations, products liability, contractual
liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance
deemed necessary because of the nature of this contract.
B) AUTOMOBILE LIABILITY
Comprehensive Automobile Liability Insurance with limits for bodily injury of not less
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than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred
Thousand Dollars ($500,000.00) per accident and for property damages of not less than
Fifty Thousand Dollars ($50,000.00), or such coverage with a combined single limit of Five
Hundred Thousand Dollars ($500,000.00). Coverage should include owned and non-
owned vehicles used in connection with this Agreement.
C) 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.
D) WORKER'S COMPENSATION
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
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 by
CONTRACTOR.
Within Thirty (30) days from the date CONTRACTOR 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, Robert Bash,
Director of Internal Services/Chief Information Officer, 333 W Pontiac Way, Clovis, CA
93612, stating that such insurance coverages have been obtained and are in full force;
that the County of Fresno, its officers, agents and employees will not be responsible for
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any premiums on the policies; 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;
and 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.
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 with admitted insurers licensed to do business in the State of
California. Insurance purchased shall be purchased from companies possessing a current
A.M. Best, Inc. rating of A FSC VII or better.
XII. AUDITS AND INSPECTIONS
CONTRACTOR shall at any time during CONTRACTOR’S normal business hours, and
upon prior written notice, 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. CONTRACTOR shall, upon 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. Any such examinations or audits shall be at the COUNTY’S
expense.
If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
subject to the examination and audit of the Auditor General for a period of three (3) years after
final payment under contract (Government Code Section 8546.7).
XIII. NOTICES
A) AUTHORITY TO GIVE AND RECEIVE NOTICES
The persons and their addresses having authority to give and receive notices under this
Agreement include the following:
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COUNTY OF FRESNO CONTRACTOR
Robert Bash Americas Contracts Dept.
Director of Internal Services/
Chief Information Officer
Gartner, Inc.
12651 Gateway Blvd.
333 W Pontiac Way Ft. Myers, FL 33913
Clovis, CA 93612
isdbusinessoffice@co.fresno.ca.us
Americas.contracts@gartner.com
Any and all notices between the COUNTY and the CONTRACTOR provided for or
permitted under this Agreement or by law shall be in writing and shall be deemed duly served
when personally delivered to one of the parties, or in lieu of such personal services, when
deposited in the United States Mail, postage prepaid, addressed to such party or by electronic
mail sent to and confirmed by CONTRACTOR at CONTRACTOR’s email address, or if to
COUNTY, at COUNTY’s email address noted above.
XIV. 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 shall be governed in all respects by the laws of the State of
California.
XV. 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 this 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
(Exhibit 1) and submitting it to the COUNTY prior to commencing with the self -dealing
transaction or immediately thereafter.
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XVI. ENTIRE AGREEMENT
This Agreement, including Appendix 1, constitutes the entire agreement between the
CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all
previous Agreement negotiations, proposals, commitments, writings, advertisements,
publications, and understandings of any nature whatsoever unless expressly included in this
Agreement.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written.
3 CONTRACTOR
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7 Date: l-'2fo .. 2o l1
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11 Date:
12 Gartner, Inc.
13 980 91h St#2150
Sacramento, CA 95814
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17 FOR ACCOUNTING USE ONLY:
FUND: 1020
18 SUBCLASS: 10000
ORG NO.: 8905
19 ACCOUNT NO.: 7205
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.I,
\;~
~~
COUNTY OF FRESNO
Brian Pacheco
Chairman, Board of Supervisors
Date:
Bernice E. Seidel
Clerk, Board of Supervisors
By: <'f,~ c._._~
DEP
-·J_· . '. RE:~.E===CORAPPROVAL C::Va .·
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Robert W. Bash, Director of Internal Services/
Chief Information Officer
APPROVED AS TO LEGAL FORM
Daniel C. Ce~rborg
County CounMI
By: LJ.~ 0 DEPUTY
APPROVED AS to ACCOUNTING FORM
-,I
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Appendix 1: Service Agreement
This Service Agreement (“SA”), including the General Terms and all applicable Service Descriptions, constitutes the complete
agreement between Gartner, Inc. of 56 Top Gallant Road, Stamford, CT 06904 (“Gartner”) and Client of Fresno County 333 W.
Pontiac Way, Clovis, CA 93612 for the Services (as defined below). Client agrees to subscribe to the following Services for the term
and fees set forth below.
1. DEFINITIONS AND ORDER SCHEDULE:
Services are the subscription-based research and related services purchased by Client in the Order Schedule below and
described in the Service Descriptions. Service Names and Levels of Access are defined in the Service Descriptions. Gartner
may periodically update the names and the deliverables for each Service. If Client adds Services or upgrades the level of
service or access, an additional Service Agreement will be required.
Service Descriptions describe each Service purchased, specify the deliverables for each Service, and set forth any additional
terms unique to a specific Service. Service Descriptions for the Services purchased in this SA may be viewed and downloaded
through the hyperlinks listed in Section 2 below or may be attached to this SA in hard copy, and are incorporated by reference
into this SA.
Service Name
Level of Access
Quantity
Name of User to be
Licensed
Contract
Term Start
Date
Contract
Term End
Date
Annual Fee
$
Total Fee
$
Executive
Programs
Leadership Team
Leader 1 Robert Bash 01-SEPT-
2017
31-Aug-2020 1 $78,600
2 $81,115
3 $83,710
$243,425
Executive
Programs
Leadership Team
Delegate 1 Brian Martin 01-SEPT-
2017
31-Aug-2020 1 $41,200
2 $42,520
3 $43,880
$127,600
Executive
Programs
Leadership Team
Advisor 2 Mark Zack
Sheri Walden
01-SEPT-
2017
31-Aug-2020 1
$30,800/each
2
$31,785/each
3 $32,803each
$95,388/each
Total
Services:
(Excluding
applicable
sales tax)
$181,400
Year 1
$561,801
3 Years
Option Year(s)
Executive
Programs
Leadership Team
Leader 1 Robert Bash 01-SEPT-
2020
31-Aug-2021 $87,897 $87,897
Executive
Programs
Leadership Team
Delegate 1 Brian Martin 01-SEPT-
2020
31-Aug-2021 $46,074 $46,074
Executive
Programs
Leadership Team
Advisor 2 Mark Zack
Sheri Walden
01-SEPT-
2020
31-Aug-2021 $34,443
(each)
$68,886
Executive
Programs
Leadership Team
Leader 1 Robert Bash 01-SEPT-
2021
31-Aug-2022 $92,292 $92,292
Executive
Programs
Leadership Team
Delegate 1 Brian Martin 01-SEPT-
2021
31-Aug-2022 $48,378 $48,378
Executive
Programs
Leadership Team
Advisor 2 Mark Zack
Sheri Walden
01-SEPT-
2021
31-Aug-2022 $36,165
(each)
$72,330
The pricing listed for the Option Year Term(s) is provided for evaluation/budgetary purposes only. The actual price paid by
Client for each Option Year Term will be either the pricing displayed or Gartner’s then -current State and Local Government
price in effect at the time an Option Year Term is exercised, whichever is less.
2. SERVICE DESCRIPTIONS:
Service Name/ Level of Access Service Description URL
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Executive Programs Leadership Team: Leader See Attached
Executive Programs Leadership Team: Delegate See Attached
Executive Programs Leadership Team: Advisor See Attached
3. PAYMENT TERMS
Gartner will invoice Client in advance for all Services. Payment is due 45 days from the invoice date. Client shall pay any sales,
use, value-added, or other tax or charge imposed or assessed by any governmental entity upon the sale, use or receipt of Services,
with the exception of any taxes imposed on the net income of Gartner.
4. CLIENT PURCHASE ORDER
Please attach any required Purchase Order (“PO”) to this SA and enter the PO number below. All PO’s are to be sent to
purchaseorders@gartner.com.
_
Purchase Order Number: ______________________________
5. GENERAL TERMS
5.1 Ownership and Use of the Services. Gartner owns and retains all rights to the Services not expressly granted to Client.
Only the individuals named in this SA (each a “Licensed User”) may access the Services. Each Licensed User will be
issued a unique password, which may not be shared. Client agrees to review and comply with the Gartner Usage Policy,
which is accessible to all Licensed Users via the “Policies” section of gartner.co m. Among other things, the Gartner Usage
Policy describes how Client may substitute Licensed Users, excerpt from and/or share Gartner research documents within
the Client organization, and quote or excerpt from the Services externally.
5.2 DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND GARTNER
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE OR AS TO ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION. CLIENT
RECOGNIZES THE UNCERTAINTIES INHERENT IN ANY ANALYSIS OR INFORMATION THAT MAY BE
PROVIDED AS PART OF THE SERVICES, AND ACKNOWLEDGES THAT THE SERVICES ARE NOT A
SUBSTITUTE FOR ITS OWN INDEPENDENT EVALUATION AND ANALYSIS AND SHOULD NOT BE
CONSIDERED A RECOMMENDATION TO PURSUE ANY COURSE OF ACTION. GARTNER SHALL NOT BE
LIABLE FOR ANY ACTIONS OR DECISIONS THAT CLIENT MAY TAKE BASED ON THE SERVICES OR ANY
INFORMATION OR DATA CONTAINED THEREIN. CLIENT UNDERSTANDS THAT IT ASSUMES THE ENTIRE
RISK WITH RESPECT TO THE USE OF THE SERVICES.
5.3 Data Protection. In performing its obligations under this SA, Gartner and Client will each comply with all applicable data
privacy legislation. Without limitation to this, Client shall ensure that any disclosure of personal data, whether in relation
to Client's employees or otherwise, made to Gartner by Client or on its behalf is made with the data subject's consent or is
otherwise lawful. In so far as any disclosure relates to Client's own employee or subcontractor, Client shall notify that
employee or subcontractor that Gartner and its affiliates may: (a) use the personal data to provide Client with the Services,
(b) disclose the personal data to third parties to provide the Services; and (c) inform Client about other products or services
that Gartner believes may be of interest. If any person does not wish to receive such Gartner communications, they may
contact Gartner at privacy@gartner.com.
5.4 Miscellaneous
(a) Arbitration. RESERVED.
(b) Use of Name, Trademark, and Logo . Absent the prior written consent of the other party, neither party shall use the
name, trademarks, or logo of the other in promotional materials, publicity releases, advertising, or any other similar
publications or communications.
(c) No Third Party Beneficiaries. This SA is for the benefit of the parties only.
(d) Surviving Clauses. Sections 3, 4, and 5 (shall survive the termination of this SA.)
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