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HomeMy WebLinkAboutAmend 1 P-20-001.pdf co County of Fresno 0 1$5 O INTERNAL SERVICES DEPARTMENT Facilities• Fleet•Graphics• Purchasing •Security•Technology AMENDMENT NUMBER ONE Agreement Number: P-20-001 February 1, 2024 Siteimprove, Inc. 5600 W 83rd St Ste 400 Minneapolis, MN 55437 Procurement Agreement bearing Contract Number P-20-001 and dated December 17, 2019 covering Software-As-A-Service Subscription ("Agreement") is amended as follows: 1. TERM: The Agreement shall become effective on January 1, 2020, and shall remain in effect through December 31, 2022 ("Initial Term"). After the Initial Term, the Agreement will automatically renew for additional consecutive periods of twelve (12) months (the "Renewal Term"), or until terminated according to the Termination section of this Agreement. 2. Maximum Compensation: The County of Fresno desires to increase this Agreement in the amount of $6,500. In no event shall services performed and/or fees paid under this Agreement be in excess of $105,500. 3. Included Services. Included Services for the purposes of this Agreement shall be as set forth in the attached Service Order("Included Services").Any additional services hereunder may be subscribed to by the County pursuant to a signed Service Order, which will incorporate the terms of the Agreement by reference. 4. Implementation, Support and Training: In the event that County utilizes the Included Services as a part of this Agreement or of a Service Order, the following terms shall apply; however, any inconsistency between this Agreement as amended and any terms contained in the following four hyperlinks shall be resolved by giving precedence to the written provisions in this Agreement as amended, and over said terms contained in the following hyperlinks: - Professional Services: https://www.siteimprove.com/legal/professional-services-agreement/ - Implementation services: https://www. siteimprove.com/legal/implementation-plan/ - Support Terms/Success Plan: https://www.siteimprove.com/legal/ - Learning Management System: https://www. siteimprove.com/legal/Ims-agreement/ 5. Third Party Websites and Non-Public Websites: a. Third-Party Website Use. In the event that County wishes to use the Included Services on a third party's website(s)where County is not the owner or authorized administrator, County shall provide Contractor with the list of such third-party website domains that it wishes to use the Included Services on and, if agreed, Contractor will include the third-party website domains in an applicable Service Order to be executed by County. Contractor reserves the right to reject the use of the Included Services on any of the third-party website domains requested by County. Contractor may at any time request proof from County of its right to use the Included Services on such third-party websites. If agreed that the Included Services may be used on a third party's website, the County may create users on behalf of that third party. Notwithstanding the aforementioned, the same terms and conditions apply when using the Included Services on a third party's website as on the County's own website(s). b. For Non-Public Website Use. Any use of the Included Services on Non-Public Websites (which means intranets, log-in-protected websites, staging websites, development website, or any other form of non-public websites) is subject to the obligations set out in this Section 5(b). For Contractor to allow that the Included Services are used on a Non-Public Website, County must ensure that there is an encrypted line for the secure transport of data between such Non- Public Website and Contractor. County must ensure that, to the extent necessary, or required by applicable laws, it has an appropriate legal basis for the processing of personal data for the purpose of the Included Services, and that it has the right to disclose any confidential information on the Non-Public Website. Except when expressly agreed, County represents and warrants that the information on the Non-Public Website is not subject to heightened regulations (e.g., HIPAA, or FERPA). Additionally, County must assign an account with non- administrative rights to the Non-Public Website when using the Services on any website behind log-in protection. In the event of any failure by County to adhere to the obligations set out in this section, Contractor may reject to perform the Services on the Non-Public Website. COUNTY EXPRESSLY UNDERSTANDS AND AGREES THAT CONTRACTOR AND ITS AFFILIATES, DIRECTORS AND EMPLOYEES SHALL NOT BE LIABLE TO COUNTY UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SPECIAL DAMAGES ARISING OUT OF OR DUE TO COUNTY'S USE OF THE SERVICES IF SUCH USE IS IN BREACH OF COUNTY'S OBLIGATIONS IN THIS SECTION. 6. Confidentiality. a. "Confidential Information" means all information disclosed by one Party (the "Disclosing Party" to the other Party (the "Receiving Party") which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information does not include information that: (a) was in the public domain prior or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party through no fault of Receiving Party; (b) was rightfully in Receiving Party's possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party by Disclosing Party; (c)was developed by employees or agents of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party; (d) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence; or (e) is approved by Disclosing Party for release by Receiving Party. b. Nondisclosure Obligations. Receiving Party and its representatives will: (i) maintain in confidence any Confidential Information; (ii) use its best endeavors to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; and (iii) solely disclose Confidential Information to its employees and representatives who need access for purposes consistent with this Agreement or Service Order; and (iv) not disclose the other party's Confidential Information to any third party, except in response to a valid order by a court or other governmental body or as required by law. The receiving party will promptly give notice to the disclosing party of any disclosure of the other party's Confidential Information. c. Ownership and Return of Confidential Information. All Confidential Information of Disclosing Party will remain the property of Disclosing Party. Upon written request of Disclosing Party, Recipient shall destroy or return to Disclosing Party all Confidential Information. However, Receiving Party will not be required to erase any Confidential Information of the Disclosing Party stored electronically as part of an archival back-up system maintained in the ordinary course of business. In the event of disclosure of confidential information to a third party in default of the provisions of this Section 6, the defaulting party will use reasonable efforts to assist the Disclosing Party in recovering and preventing such third party from using, selling, disclosing or otherwise disposing of such confidential information. The obligations in this Section 6 shall survive the termination of this Agreement and any Service Order concluded. 7. Data Rights and Responsibilities: a. County Owned Data.All County Data (which means data provided to Siteimprove through the use of the Included Services) is and shall remain County property. Contractor does not resell any County Data.To enable Contractor to provide County with the Services, and subject to this Agreement, County hereby grants to Contractor a non-exclusive right to use and process County Data provided by County solely in connection with Contractor's operation of the Services. b. County's Responsibility. County will shall be responsible for any claims, including any third- party claims, lawsuits, and demands arising out of(a) County Data, or(b) use of the included Services by County or its end users in violation of this Agreement. c. Aggregated Anonymous Data. County acknowledges and agrees that Contractor will have the right to obtain or generate and aggregate technical and other data about County's use of the Services excluding any personally identifiable data with respect to County ("Aggregated Anonymous Data"). Contractor owns Aggregated Anonymous Data and may use this to analyze, improve, support and operate the Services and otherwise for any business purpose, during and after the term of this Agreement. For clarity, this Section 7(c) does not give Contractor the right to identify County as the source of any Aggregated Anonymous Data. d. Feedback. Contractor shall have a fully paid-up, royalty-free, worldwide, transferable, sub- licensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback received from County. Contractor also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated due to such feedback. e. GDPR - General Data Protection Regulation. The Services are designed and developed to collect and process County's website content and certain operational data in relation thereto. Any personal data processed by Contractor when performing the Services is processed according to the County's instructions and on its behalf. In this regard, County is deemed to be "Data Controller" and Contractor is "Data Processor". Where applicable, County is responsible for entering into a Data Processing Agreement ("DPA") with Contractor which lives up to any then-current legal standards. If the use of the Services on Non-Public Websites and/or websites that contain special categories of personal data has been agreed upon, the County ensures that the DPA reflects the processing of non-public and/or special categories of personal data. If County has not facilitated a DPA to be signed on the day that County begins to use the Services, the parties are deemed to have entered into Contractor's standard DPA available at: https://siteimProve.com/en/privacy/dpa/. f. CCPA - California Consumer Privacy Act. With respect to obligations to consumers under the California Consumer Privacy Act where applicable, County is a "business" and Contractor is a "service provider" (as such terms are defined in the CCPA) and each party will be responsible for its respective obligations under the CCPA, as applicable to the Agreement. If County has not facilitated a DPA to be signed on the day that County begins to use the Services,the Parties are deemed to have entered into Contractor's standard CCPA Addendum available at: https://siteimprove.com/en/privacy/dpa/. g. Data Processing of Users and County Contacts. Other than the processing of County's data under Section 7(e) and 7(f), Contractor collects some general usage and contact information about the users of Contractor's services and other contact persons provided by County, such as the names and emails of the Contractor users, for internal necessary purposes such as County identification, invoicing, support and sharing information about Contractor products to County. A detailed description of how Contractor processes County's data under this section is available at: https:// siteimprove.com/en/privacy/privacy-poIicy/. In this regard, Contractor will be the data controller under GDPR and business under CCPA and the County acknowledges and agrees that general County and user information will be collected for Contractor's internal use.The County has the right to access, correct, modify and erase any personal data provided by the County to Contractor. To exercise these rights, contact privacy(a)siteimprove.com. 8. Electronic Signatures. The parties agree that this Agreement may be executed by electronic signature as provided in this section. A. An "electronic signature" means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to(1)a digital signature; (2)a faxed version of an original handwritten signature; or (3) an electronically scanned and transmitted (for example by PDF document)of a handwritten signature. B. Each electronic signature affixed or attached to this Agreement(1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person. C. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). D. Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. The Agreement, as amended by this Amendment Number One, is ratified and continued. Furthermore, all provisions of the Agreement not amended by this Amendment Number One remain in full force and effect. Any inconsistency between terms will be resolved by giving precedence to the written language of this Agreement as amended, exclusive of those terms included in any hyperlinks referenced herein. Please acknowledge your acceptance by returning all pages of this letter to my office via email or USPS. If you have any questions, please contact Amber Nigam, Purchasing Analyst at (559) 600-7120 or email anigam(a)fresnocountVca.gov. 333 W. Pontiac Way, Clovis, CA 93612 / (559) 600-7110 *The County of Fresno is an Equal Employment Opportunity Employer CONTRACT NO. P-20-001 Siteimprove, Inc February 1, 2024 FOR THE COUNTY OF FRESNO Digitally signed by Manuel M. Manuel M. VilanOVa Vilanova Date:2024.03.25 08:26:37-07'00' Manuel Vilanova Deputy Director— Internal Services Department 333 W. Pontiac Way Clovis, CA 93612 GEC:AN CONTRACT NO. P-20-001 Page 5 Siteimprove, Inc February 1, 2024 CONTRACTOR TO COMPLETE: Company: Si tei mprove Type of Entity: Individual ❑ Limited Liability Company ❑ Sole Proprietorship ❑ Limited Liability Partnership Corporation 01 General Partnership DocuSigned by: Signature QM� tr saws kr 9459DBF98F2D437... Amber Schueler Director of Customer Success March 24, 2024 19:13 CDT Print Name and Title Date Signature Print Name and Title Date 5600 west 83RD St Suite 400 Bloomington, MN 55437 Address City State Zip 952-683-0398 amsc@siteimprove.com TELEPHONE NUMBER FAX NUMBER E-MAIL ADDRESS ACCOUNTING USE ONLY ORG No.: 8905 Account No.: 7309 Requisition No.: 8905240477 (8/2022)