HomeMy WebLinkAboutP-24-715 LCPtracker.pdf P-24-715
LCPtracker County of Fresno
LCPtracker, Inc.
Master Subscription Software as a Service Agreement
THIS MASTER SUBSCRIPTION SOFTWARE AS A SERVICE AGREEMENT ("Agreement") is entered into as of
December 12, 2024 (the "Effective Date") between LCPtracker, Inc., with a place of business located at 117 East
Chapman, Orange, California 92866 ("LCPtracker") and County of Fresno with a place of business located at
2220 Tulare St 61h Floor, Fresno, CA 93721 and its Affiliates ("Client", together with LCPtracker the "Parties", and
each a "Party"). The Parties agree as follows:
1. DEFINITIONS.
a. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with
the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than
fifty percent (50%) of the voting interests of the subject entity.
b. "Aggregated Statistics" means data and information related to Client's and Users' use of the Services that is
used by LCPtracker in an aggregate and anonymized manner, including to compile statistical and performance
information related to the provision and operation of the Services.
c. "Applicable Law" means all federal, state, local and other laws, rules and regulations, ordinances, interpretive
letters and other official releases of or by any governmental authority, decrees, orders and codes as the same are
amended from time to time and as are applicable to a Party's performance of its obligations under the Agreement,
including any applicable law relating to the privacy or processing, protection, collection, use, or disclosure of
personally identifiable information as more particularly described in any such applicable law.
d. "Client Data" means all Client and User electronic information entered into the Services or otherwise provided
from Client to LCPtracker pursuant to this Agreement.
e. "Documentation" means this Agreement, the applicable Product Schedule, and (i) for LCPtracker Professional, the
online user guide (Administrator Manual or Contractor Manual as appropriate) for the Services, accessible via login at
LCPtracker online, and updated from time to time, or (ii) for Workforce Manager, the LCPtracker guides entitled "How to
Access Workforce Manage", "Creating a New Administrator Profile" and "WFM How to reset your password", that are
supplied to Client on request, are accessible via login at LCPtracker online, and that may be updated from time to time.
Updates of the Documentation in Section 1(e)(i) and (ii) are in LCPtracker's sole discretion.
f. "LCPtracker IP" means the Services, the Documentation, and any intellectual property provided to Client or any User in
connection with the foregoing. For the avoidance of doubt, LCPtracker IP includes Feedback and Aggregated Statistics, as
provided herein. Herein, "intellectual property rights" means any registered and unregistered rights granted, applied for, or
otherwise now or hereafter in existence under or related to any patent, copyright, trademark, or trade secret or intellectual
property rights laws in any part of the world.
g. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files,
scripts, agents or programs.
h. "Product Schedule" means the document(s) for placing orders hereunder signed by both Parties and made a
part hereof. By entering into a Product Schedule hereunder, a Client Affiliate agrees to be bound by the terms of this
Agreement as if it were an original party hereto. To be effective a Product Schedule must be signed by both parties
to the Product Schedule.
i. "PII" means (i) information about an identified or identifiable individual or household as more particularly described
in any Applicable Law in any way relating to privacy and the protection, collection, use, disclosure or distribution of
personally identifiable information, including without limitation to the generality of the foregoing, personally identifiable
healthcare information or personally identifiable financial information, or(ii)where no Applicable Law applies, means
any information that by itself or when combined with other information (such as, but not limited to, names, addresses,
telephone numbers, e-mail addresses, credit card number, demographic information, static IP address and
government issued identification number) can be used to identify a specific living natural person or household.
j. "Services" means any LCPtracker software as a service products and related services that are ordered by
Client under a Product Schedule and made available by LCPtracker online via the Client login or otherwise. "Services"
excludes non-LCPtracker applications or software of any kind.
k. "Service Fees" means the fees payable for the Services that are chosen in the applicable Product Schedule.
I. "Subscription Term" means the applicable term as set forth on the applicable Product Schedule for the Services.
m. "Third-Party Products" means any third-party products that Client or a User uses to connect with the Services.
n. "Users" means persons who are authorized by Client to use the Services, for whom subscriptions to a Service
have been ordered, and who have been supplied user identifications and passwords by Client or by Users. Client
must ensure that Users not share their user identification or passwords and further protect them. Users may include
but are not limited to Client and its Affiliates' employees, consultants, contractors and agents and use is solely for the
benefit of Client/User in connection with the project detailed in the Product Schedule.
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2. SERVICES
2.1. Provision of Services. Subject to and conditioned on Client's and its Users' compliance with the terms and
conditions of this Agreement, LCPtracker hereby grants Client, at no additional cost, a non-exclusive, non-
transferable (except in compliance with Section 2.3) revocable right to access and use the Services during the
applicable Subscription Term solely for use by Client and Users in accordance with the Documentation for their
internal business purposes. Client agrees that Client's access to Services hereunder is neither contingent on the
delivery of any future functionality or features nor dependent on any oral/written public comments made by LCPtracker
regarding future functionality/features. LCPtracker hereby grants to Client for the applicable Subscription Term a
non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 2.3) and revocable license
to use the relevant Documentation and any other manuals, instructions, or other materials that LCPtracker makes
available to Client which describe the features/requirements of the Services solely for Client's internal business
purposes in connection with its permitted use of the Services. LCPtracker will make available by telephone, email,
and live chat all qualified personnel necessary from 5:00 am PST to 5:30 pm PST, Monday through Friday,
excluding all Federal holidays and discretionary LCPtracker internal training days (no more than two training days
a year) in order to provide technical problem resolution.
2.2. Limitations. Client will not(and will not permit any third party or User to): (i) modify(except as expressly permitted
under the applicable Product Schedule), port, translate, localize or create derivative works based on the Services, (ii)
use, copy, sell, rent, lease, market, distribute or sublicense the Services except as otherwise specifically permitted
hereunder; (iii) reverse engineer, decompile, or disassemble the Services; (iv) access the Services in order to build
or contribute to a competitive product or service, (v) access the Services in any manner that violates any intellectual
property right of a third party, (vi) remove, or allow to be removed, any LCPtracker proprietary rights notice from any
LCPtracker product, (vii) disclose the results of performance tests run on the Services to any third party without
LCPtracker's prior written consent, (viii) make the Services available to anyone other than Users, (ix) use the Services
to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in
violation of third-party privacy rights, (x) use the Services to store or transmit Malicious Code, (xii) interfere with or
disrupt the integrity or performance of the Services or third-party data contained therein, or (xiii) attempt to gain
unauthorized access to the Services or their related systems or networks. This Agreement grants no additional
express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other
intellectual property right of LCPtracker that is not expressly granted herein. Client shall; (a) be responsible for the
administration of User identifications and passwords and Users' compliance with this Agreement and shall require
Users to acknowledge their understanding of and compliance with the restrictions and responsibilities related to the
use of the Services, including, without limitation, protecting their User identification and passwords and compliance
with all Applicable Laws; (b) use their best efforts to prevent unauthorized access to or use of the Services, and notify
LCPtracker promptly of any unauthorized access or use, and (c) use the Services only in accordance with the
Documentation and Applicable Laws. If Client becomes aware of any actual or threatened activity prohibited by this
Section, Client shall, and shall cause its Users to, immediately: (A) take all reasonable and lawful measures within
their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects(including,
where applicable, by discontinuing and preventing any unauthorized access to the Services); and (B) notify LCPtracker
immediately in writing of any such actual or threatened activity.
2.3. Users. Client may permit any number of Users (unless otherwise set forth in the applicable Product
Schedule) to use the Services; (i) in accordance with the terms of the applicable Product Schedule and the
Documentation, and (ii) through a unique and reasonably secure username and password. If a two-factor
authentication login system is provided, it is required to be used. Client is responsible to ensure that its Users
comply with all the same obligations regarding use of the Services that it is bound by hereunder. Client is solely
responsible for the activity that occurs on all associated User accounts. Users are required to keep their user
account, username, and password secure. Client must notify LCPtracker immediately of any breach of security
or unauthorized use of any User's account. LCPtracker shall not be responsible for any losses arising out of the
loss or theft of user information transmitted from or stored on a computer or device or from unauthorized or
fraudulent transactions. If there is a security incident caused due to a failure of Client or its Users to follow the
requirements of this Agreement, LCPtracker will use its best reasonable endeavors to help mitigate any damage,
however there will be charges for such services at the then applicable rate charged by LCPtracker.
2.4. Use of Services Client is solely responsible for its and its Users' compliance with all Applicable Law in the use
of the Services and LCPtracker shall have no liability for Client's or its Users' input of data or use of the Services.
Client agrees that Client (a) will confirm the accuracy of any bulk upload/API/data migration/auto-geo assignment
integration into the LCPtracker system, and (b) further understands that bulk uploads/API/data migration/auto-geo
assignments are effective only as of the date of the upload(s)/migration(s). It is Client's responsibility to provide
updated data to LCPtracker. Client accepts that auto-geo assignments are automatically corrected by Microsoft
based upon the co-ordinates in the KML file supplied by Client to LCPtracker, and further the accuracy of data
subject location has some inaccuracy due to combining pure mapping co-ordinates (or deficiencies within those co-
ordinates) with residential locations. Client agrees to not directly send any PH by email or otherwise (to LCPtracker
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outside of the LCPtracker SaaS Services product offering) without prior written approval from the LCPtracker
Director of Client Services.
2.5 Changes. LCPtracker reserves the right, in its sole discretion, to make any changes to the Services that it
deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of LCPtracker's services to its
customers; (ii) the competitive strength of or market for LCPtracker's services; or (iii) the Services' cost efficiency
or performance; or (b) to comply with Applicable Law.
2.6. Data Backup.The Services are programmed to perform routine data backups as set out in LCPtracker's backup
policy in effect from time to time (the"Backup Policy"). In the event of any loss, destruction, damage, or corruption
of Client Data for any reason, LCPtracker will, as its sole obligation and liability and as Client's sole remedy, restore
the Client Data from LCPtracker's then most current backup of such Client Data in accordance with the then current
Backup Policy. It is the Client and the Users responsibility to maintain their own back-ups of their original data for
the required statutory periods.
2.7. Client Control and Responsibility. Client has and will retain sole responsibility for: (a) all Client Data, including
its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any User in
connection with the Services; (c) Client's information technology infrastructure, including computers, software,
databases, electronic systems (including database management systems), and networks, whether operated directly
by Client or through the use of third-party services ("Client Systems"); (d) the security and use of Client's and its
Users' access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Client
Systems or its or its Users' access credentials, with or without Client's knowledge or consent, including all results
obtained from, and all conclusions, decisions, and actions based on, such access or use.
2.8. Data Privacy. The Parties agree that, between the Parties, Client shall serve as the business or controller and
LCPtracker shall serve as the service provider or processor, as those terms are defined under Applicable Law.
LCPtracker, as a service provider on behalf of Client, shall not access, use, process or retain Client Data containing
PH for any business or commercial purpose except as necessary to perform its obligations under this Agreement
and the applicable Product Schedule except in strict accordance with the written instructions of Client, or as
otherwise required for LCPtracker to meet its own legal obligations under Applicable Law. Notwithstanding the
foregoing, LCPtracker may use, disseminate, and otherwise process deidentified or aggregated Client Data to the
full extent allowed under Applicable Law and pursuant to its own discretion. LCPtracker shall use reasonable
endeavors to notify Client in the event that it receives any consumer rights requests under Applicable Law, if the
requestor informs LCPtracker of the relevant employing entity who is also the Client, and the Client shall have the
sole responsibility in responding to such requests, and also for ensuring the requestor's identity. Client has the
right to take commercially reasonable steps (as agreed between the Parties) to ensure LCPtracker's compliance
with Applicable Law. LCPtracker will notify Client if it makes a determination that it can no longer meet its
obligations under Applicable Law. Client is granted the right, upon notice, to take reasonable and appropriate steps to
stop and remediate LCPtracker's unauthorized use of personal information.
2.9 Start Up Timing. For Start Up activities for any of the LCPtracker Professional, Daily Reporter & OnSite
modules, associated implementation and training activities initiated by LCPtracker account services team must
have Client consistent engagement(i.e., attending meetings, making database configuration decisions, etc.)within
the timeframes indicated below or Start Up fees (at the then applicable published rate) will be due to be paid again
by Client to LCPtracker in order for those Start-Up services detailed above to be provided:
a) Basic — Implementation and training activities must result in Client consistent engagement within 90 days of
LCPtracker account services initiation.
b) Standard — Implementation and training activities must result in Client consistent engagement within 180 days
of LCPtracker account services team initiation.
c) Select — Implementation and training activities must result in Client consistent engagement within 365 days of
LCPtracker account services team initiation.
2.10 Representation. LCPtracker represents that it is qualified, ready, willing, and able to perform all of the
services provided in this Agreement.
2.11 Compliance with Laws. LCPtracker shall, at its own cost, comply with all applicable federal, state, and local
laws and regulations in the performance of its obligations under this Agreement, including but not limited to
workers compensation, labor, and confidentiality laws and regulations.
2.12 ADA Compliance. LCPtracker's Services shall be in compliance with the Americans with Disabilities Act of
1990 (ADA) in accordance and to the extent detailed in its Voluntary Product Accessibility Template (VPAT) (copy
available upon request) and shall be the sole responsibility of LCPtracker. LCPtracker shall indemnify, defend,
and hold Client (including its officers, agents, employees, and volunteers) harmless from liability of any nature or
kind, including damages, costs and expenses (including attorney's fees and costs) arising from LCPtracker's non-
compliance therewith, including compliance with ADA Section 508 of the Rehabilitation Act of 1973. This section
survives the termination of this Agreement.
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3. FEES AND PAYMENT FOR SERVICES
3.1. Service Fees. Except as otherwise specified herein or in the Product Schedule, payment obligations are non-
cancelable, and Service Fees paid are non-refundable (except as expressly stated herein or a Product Schedule).
Service Fees are based on the start date as set forth in the Product Schedule and shall continue for the
Subscription Term. All undisputed amounts payable to LCPtracker under this Agreement shall be paid by Client to
LCPtracker in full when due without any setoff, deduction, or withholding for any reason.
3.2. Invoicing and Payment. If required by Client, Client may provide LCPtracker with a valid purchase order or
alternative document reasonably acceptable to LCPtracker, provided that no terms contained on Client's purchase
order or alternative document will serve to modify the terms of this Agreement or the applicable Product Schedule.
Unless otherwise stated in the Product Schedule, payment is due by check to the address listed above for
LCPtracker net 45 days from the date of the applicable invoice.
3.3. Overdue Payments. If any Service Fees are not received from Client by the applicable due date, then at the
sole discretion of LCPtracker, LCPtracker may without limiting its other rights and remedies, suspend Client's
access to the Services until payment is made in full. LCPtracker will give Client at least thirty (30) business days'
prior written notice that Client account is overdue, in accordance with Section 11.2 (Notices), before suspending
the Services to Client.
3.4. Payment Disputes. If Client provides written notice to LCPtracker of a dispute about any portion of an invoice
prior to the applicable payment due date, LCPtracker shall not exercise its rights under Section 3.3 provided Client
is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.5. Taxes. Unless otherwise stated, Service Fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable
by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Client is responsible for paying
all Taxes, if any, associated with Client purchases hereunder, other than those based on LCPtracker's income. If
LCPtracker has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph,
the appropriate amount shall be invoiced to and paid by Client, unless Client provides LCPtracker with a valid tax
exemption certificate authorized by the appropriate taxing authority.
3.6. Inspections, Auditing Rights, and Required Records. Client agrees to maintain complete and accurate records in
accordance with generally accepted accounting principles during the Term and for a period of two years after the termination
or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.
LCPtracker may, at its own expense, on reasonable prior notice, periodically (during, or after the Term for a period of two
(2) years) inspect Client's records with respect to matters covered by this Agreement.
3.6.1. Inspection of Documents. LCPtracker shall, upon request by Client, permit Client to reasonably audit LCPtracker
financial records and data to ensure LCPtracker's compliance with the privacy and security terms of this Agreement.
3.6.2. State Audit Requirements. If the compensation to be paid by Client under this Agreement exceeds $10,000,
LCPtracker is subject to the examination and audit of the California State Auditor, as provided in Government Code section
8546.7, for a period of three years after final payment under this Agreement. This Section survives the termination of this
Agreement.
3.6.3. Public Records. Client is not limited in any manner with respect to its public disclosure of this Agreement or any record
or data that LCPtracker may provide to Client. Client's public disclosure of this Agreement or any record or data that
LCPtracker may provide to Client may include but is not limited to the following:
(A) Client may voluntarily, or upon request by any member of the public or governmental agency, disclose this
Agreement to the public or such governmental agency.
(B) Client may voluntarily, or upon request by any member of the public or governmental agency, disclose to the
public or such governmental agency any record or data that LCPtracker may provide to Client, unless such
disclosure is prohibited by court order.
(C) Client may voluntarily, or upon request by any member of the public or governmental agency, disclose to the
public or such governmental agency any record or data that LCPtracker may provide to Client, unless such
disclosure is prohibited by court order.
(D) This Agreement, and any record or data that LCPtracker may provide to Client, is subject to public disclosure
as a public record under the California Public Records Act (California Government Code, Title 1, Division 10,
Chapter 3, beginning with section 7920.200) ("CPRA")
(E) This Agreement, and any record or data the LCPtracker may provide to Client, is subject to public disclosure
as information concerning the conduct of the people's business of the State of California under California
Constitution, Article 1, section 3, subdivision (b).
(F) Any marking of confidentiality or restricted access upon or otherwise made with respect to any record or data
that LCPtracker may provide to Client shall be disregarded and have no effect on Client's right or duty to disclose
to the public or governmental agency any such record or data.
3.6.4. Public Records Act Requests. If Client receives a written or oral request under the CPRA to publicly disclose any
record that is in LCPtracker's possession or control, and which Client has a right, under any provision of this Agreement or
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applicable law, to posses or control, then Client may demand, in writing, that LCPtracker deliver to Client for purposes of
public disclosure, the requested records that may be in the possession or control of LCPtracker. Within five business days
after Client's demand to privacy@Icptracker.com, LCPtracker shall (a) deliver to Client all of the requested records that are
in LCPtracker's possession or control, together with a written statement that LCPtracker, after conducting a diligent search,
has produced all requested records that are in LCPtracker's possession or control, or(b)provide to Client a written statement
that LCPtracker, after conducting a diligent search, does not possess or control any of the requested records. LCPtracker
shall cooperate with Client with respect to any Client demand for such records. If LCPtracker wishes to assert that any
specific record or data is exempt from disclosure under the CPRA or other applicable law, it must deliver the record or data
to Client and assert the exemption by citation to specific legal authority within the written statement that it provides to Client
under this Section. LCPtracker's assertion of any exemption from disclosure is not binding on Client, but Client will give at
least 10 days' advance written notice to LCPtracker before disclosing any record subject to LCPtracker's assertion of
exemption from disclosure. LCPtracker shall indemnify Client for any court-ordered award of costs or attorney's fees under
the CPRA that results from LCPtracker's delay, claim of exemption, failure to produce any such records, or failure cooperate
with Client with respect to any Client demand for any such records.
3.7. Updates and Upgrades. Software/Services "Updates" (i.e., minor enhancements, additions, and substitutions to
Services, including corrections and bug fixes) are provided at no additional fee, if made commercially available by
LCPtracker. "Upgrades" (i.e., modifications, additions or substitutions that result in a substantial change, improvement or
addition to Software—i.e., addition of a new module), if made commercially available by LCPtracker, may be subject to an
additional fee, if applicable. The determination of whether a matter involves an Update, or an Upgrade is within the sole
discretion of LCPtracker. If LCPtracker determines that an Update is necessary if additional Service Fees are required,
LCPtracker shall notify Client within 90 days of the Update(s) and any additional fees that may be incurred, but subject to
the Agreement's maximum compensation amount as stated in Section 3.9 hereof. LCPtracker is not entitled to any
compensation except as expressly provided in this Agreement.
3.8. Compensation. Client agrees to pay, and LCPtracker agrees to receive, compensation for the performance of its
services under this Agreement as described in this Section.
3.9. Maximum Compensation. The total maximum compensation payable to LCPtracker during the initial term of this
Agreement is $105,500.00 provided the Construction Capacity (as defined in the Product Schedule) remains within the
parameters the Client has chosen. If this Agreement is extended for the first additional year, the total maximum
compensation payable to LCPtracker will increase to $145,000.00 provided the Construction Capacity (as defined in the
Product Schedule) remains within the parameters the Client has chosen. If this Agreement is extended for the second
additional year, the total maximum compensation payable to LCPtracker for LCPtracker's Products and Services will
increase to $186,440.00 provided the Construction Capacity (as defined in the Product Schedule) remains within the
parameters the Client has chosen.
LCPtracker acknowledges that Client is a local government entity and does so with notice that Client's powers are limited
by the California Constitution and by State law, and with notice that LCPtracker may receive compensation under this
Agreement only for services performed according to the terms of this Agreement and while this Agreement is in effect, and
subject to the maximum amount payable under this Section. LCPtracker further acknowledges that Client's employees have
no authority to pay LCPtracker except as expressly provided in this Agreement.
3.10. Invoices. LCPtracker shall submit yearly invoices referencing the provided agreement number to
pwpbusinessoffice@fresnocountyca.gov or mailed to the County of Fresno, Department of Public Works and
Planning, Attention: Business Office, 2220 Tulare St. 6th Floor, Fresno, CA 93721. LCPtracker shall submit each
invoice within 60 days after the month in which LCPtracker performs services and in any case within 60 days after
the end of the term or termination of this Agreement.
3.11. Payment. Client shall pay each correctly completed and timely submitted invoice within 45 days after receipt.
Client shall remit any payment to LCPtracker's address specified in the invoice.
3.12. Incidental Expenses. LCPtracker is solely responsible for all of its costs and expenses that are not specified
as payable by Client under this Agreement.
4. PROPRIETARY RIGHTS
4.1. Reservation of Rights. The Services are not sold to Client or any third party. LCPtracker reserves all rights,
title, and interest in and to Services and its underlying software covered by this Agreement, including but not limited
to all related intellectual property rights. No rights are granted to Client hereunder (whether by waiver, implication,
estoppel, or otherwise) other than as expressly set forth herein or a Product Schedule for the Term.
4.2. Additional Purchases and Affiliate Use. Client or Client Affiliates may, at additional cost, purchase access
to other LCPtracker products by entering into new Product Schedules. Unless otherwise stated in the applicable
Product Schedule, Client shall be and remain jointly and severally liable for any such Affiliates' obligations under
this Agreement. Limitations of liability contained in this Agreement apply to Client and any Affiliates together and
not separately.
4.3. Feedback and Aggregated Statistics. Any suggestions, enhancement requests, forms created,
recommendations or other feedback relating to the operation/provision of the Services provided by Client, including
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by Users, or worked on by LCPtracker and Client/Users ("Feedback"), during and after the Term is and remains
the intellectual property of LCPtracker and LCPtracker has all rights therein to exploit and commercialize any
Feedback as LCPtracker chooses without compensation or other consideration to Client or any Users. LCPtracker
is not required to use any Feedback. Notwithstanding anything to the contrary in this Agreement, LCPtracker may
monitor Client and Users use of the Services and collect and compile Aggregated Statistics. As between
LCPtracker, the Client and its Users, all right, title, and interest in Aggregated Statistics, and all intellectual property
rights therein, belong to and are retained solely by LCPtracker without compensation or other consideration to
Client. Client acknowledges that LCPtracker may compile Aggregated Statistics based on Feedback. Client agrees
that LCPtracker may (i) make Aggregated Statistics publicly available in compliance with Applicable Law, and (ii)
use Aggregated Statistics to the extent and in the manner permitted under Applicable Law, provided that such
Aggregated Statistics do not identify the Client's or Users' Confidential Information. If Client receives Aggregated
Statistics generally from LCPtracker, Client agrees not to attempt to re-identify any such Aggregated Statistics. All
Users of Services may be contacted by LCPtracker with information about LCPtracker events, services or products,
and they will be given the opportunity to opt-out of any such communications.
4.4. Client Data. LCPtracker acknowledges that, as between LCPtracker and Client, Client owns all right, title, and
interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to LCPtracker a
non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client
Data and perform all acts with respect to the Client Data as may be necessary for LCPtracker to provide the
Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce,
distribute, modify, and otherwise use Client Data within the Aggregated Statistics and Feedback. LCPtracker is not
responsible for any errors due to inaccurate information provided by Client or Users.
5. CONFIDENTIALITY AND DATA SECURITY
5.1. Definition of Confidential Information.As used herein, "Confidential Information" means all information
disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing,
that is designated as confidential or that reasonably should be understood to be confidential given the nature of
the information and the circumstances of disclosure. Without prejudice to the generality of the foregoing
Confidential Information shall include business and marketing plans, technology and technical information, product
plans, pricing and designs, and business processes disclosed by a Party. However, Confidential Information shall
not include any information that (i) is or becomes generally known to the public without breach of any obligation
owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party
without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of
any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without
access or reference to the Disclosing Party's Confidential Information.
5.2. Protection of Confidential Information. Client and LCPtracker may have access to information that the
other considers to be a trade secret as defined in California Government Code section 7924.510(f). The
Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential
information of like kind (but in no event less than reasonable care), (ii) not use any Confidential Information of the
Disclosing Party for any purpose outside the scope of this Agreement and the applicable Product Schedule, and
(iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the
Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for
purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party
containing protections no less stringent than those contained herein. Upon a Party's written request, each Party
shall return to the other all Confidential Information of the other in its possession. All provisions of the Agreement
relating to confidentiality, ownership, and limitations of liability shall survive the termination of the Agreement.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if
it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such
compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if
the Disclosing Party wishes to contest the disclosure.
5.4. Data Security. To the extent required to carry out the assessment and authorization process and continuous
monitoring, to safeguard against threats and hazards to the security, integrity, and confidentiality of any Client data
collected and stored by LCPtracker, LCPtracker shall afford Client reasonable access as necessary at
LCPtracker's reasonable discretion, to LCPtracker's facilities, installations, and technical capabilities. If new or
unanticipated threats or hazards are discovered by either Client or LCPtracker to each other's Confidential
Information, or if existing safeguards have ceased to function, the discoverer shall immediately bring the situation
to the attention of the other party.
6. WARRANTIES AND DISCLAIMERS
6.1. Warranties. LCPtracker warrants that (i) LCPtracker has validly entered into this Agreement, (ii) the Services
shall perform materially in accordance with the Documentation, (iii) LCPtracker will perform the Services using
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personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in
accordance with generally recognized industry standards for similar services, and (iv) LCPtracker will not transmit
Malicious Code to Client, provided it is not a breach of this subpart (iv) if Client or a User uploads a file containing
Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a
warranty in this Section, Client's exclusive remedy shall be as provided in Section 10.1 and Section 10.4.
LCPTRACKER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY
PRODUCTS.
6.2. Client Warranties. Client represents and warrants that (i) Client has validly entered into this Agreement, (ii)
Client has collected all PII in accordance with all Applicable Law, including in relation to the provision of any notice
and for obtaining any consent required under any Applicable Law, contract, or privacy policy in connection with
Client's provision of PII into the Services to LCPtracker under this Agreement, (iii) Client has all sufficient and
necessary rights to transfer PII into the Services to LCPtracker under this Agreement, (iv) Client has the rights to
use the data in the Services in the manner it chooses to utilize the Services; and (iv) Client will follow best practices
in relation to data security. Client acknowledges that Client is solely responsible for the content uploaded into the
Services and warrants that Client shall comply with all Applicable Law in its use of the Services and shall require
all Users to acknowledge and agree to comply with Applicable Law, any applicable User terms of service or privacy
policy, and the requirements of this Agreement in the same way as they apply to Client.
6.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, THE SERVICES ARE PROVIDED
"AS IS"AND LCPTRACKER DISCLAIMS ALL WARRANTIES OF ANY KIND,WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE
PRACTICE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, LCPTRACKER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL,
OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH
ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, COMPLETE, FREE OF HARMFUL CODE,
OR ERROR-FREE. FURTHERMORE, SERVICES AND OTHER MATERIALS MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS,AND LCPTRACKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SOME JURISDICTIONS MAY NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY. IN THAT CASE SUCH WARRANTIES
ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW.NO WARRANTIES APPLY AFTER
THAT PERIOD.
6.4. LCPTRACKER PROVIDES NO LEGAL OR ACCOUNTING ADVICE. LCPTRACKER SERVICES ARE SOLELY
TO HELP CLIENT ADVISORS REVIEW CONSTRUCTION PROJECT ACTIVITY AND LCPTRACKER TAKES NO
RESPONSIBILITY FOR ANY NEGATIVE TAX OUTCOMES ANY CLIENT OR THEIR CUSTOMERS MAY
ENCOUNTER. CLIENTS, AND/OR PERSONS OR ENTITIES THAT THEY PERFORM SERVICES FOR, MUST
PERFORM THEIR OWN DILIGENCE PURSUANT TO THE ADVICE OF THEIR TAX AND LEGAL COUNSEL IN
FILING TAXES. LCPTRACKER DOES NOT TRACK ASSESSED PENALTIES FOR FAILURE TO CORRECTLY
CONFORM TO APPLICABLE PREVAILING WAGE OR APPRENTICESHIP REQUIREMENTS AS PART OF ITS
SERVICES.
7. INDEMNIFICATION
7.1. Indemnification by LCPtracker. LCPtracker shall defend Client against any claim, demand, or proceeding
made or brought against Client by a third party alleging that the use of the Services as permitted hereunder infringes
or misappropriates the US intellectual property rights of such third party in respect of the Services (a "Claim Against
Client"), and shall indemnify Client for any damages, reasonable attorney fees and costs finally awarded against
Client as a result of, and for amounts paid by Client under a court-approved settlement of a Claim Against Client;
provided that Client (a) promptly provides LCPtracker written notice of the Claim Against Client; (b) allows LCPtracker
sole control of the defense and settlement of the Claim Against Client (provided that LCPtracker may not settle any
Claim Against Client unless the settlement unconditionally releases Client of all liability); and (c) provides to
LCPtracker all reasonable assistance, at LCPtracker's expense. In the event of a Claim Against Client, or if
LCPtracker reasonably believe the Services may infringe or misappropriate a third party's intellectual property rights,
LCPtracker may, in LCPtracker's sole discretion and at no cost to Client, (x) modify the Services so that they are no
longer infringing, without breaching LCPtracker warranties under Section 6.1 above, (y) obtain a license for Client's
continued use of the Services in accordance with this Agreement, or (z) if LCPtracker determines that neither of the
foregoing is commercially practicable and if Client is not permitted to continue using the Services, then this Agreement will
terminate with respect to such infringing Services, and Client shall be entitled to recover from LCPtracker an amount equal
to a pro-rated portion of the applicable prepaid Service Fees paid for the Services for the remaining Subscription Term for
the applicable Services. LCPtracker shall have no liability for any infringement claim based on Client Data, or Client's
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or its Users' use of the Services in a manner not permitted hereunder, where such claim would not arise but for such
Client Data or Client's or its Users' unauthorized use of the Client Data or the Services. LCPtracker will not be held
responsible for actions outside its reasonable control and retains all its defenses at law and at equity.
7.2. Exclusive Remedy.THIS SECTION 7 STATES THE INDEMNIFYING PARTY'S ENTIRE LIABILITY TO,AND
THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF
INDEMNIFIED CLAIM DESCRIBED IN THIS SECTION.
8. LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT, IN NO EVENT WILL LCPTRACKER BE LIABLE UNDER THIS AGREEMENT OR ANY OTHER
AGREEMENT WITH THE CLIENT UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (a)
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (b) LOST
REVENUES; (c) LOSS OF GOODWILL OR REPUTATION; (d) LOSS, INTERRUPTION, DELAY, OR RECOVERY
OF ANY DATA, OR BREACH OF DATA; OR (e) COST OF REPLACEMENT SERVICES, IN EACH CASE
REGARDLESS OF WHETHER CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES
OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE. EXCEPT IN THE EVENT OF GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL LCPTRACKER'S AGGREGATE
LIABILITY ARISING OUT OF THIS AGREEMENT, AND/OR IN ANY WAY CONNECTED WITH THE PROVISION
OF THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED IN TOTAL THE GREATER OF
$100,000 OR THE AMOUNTS PAID BY CLIENT FOR THE SERVICES IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY. THE PARTIES
ACKNOWLEDGE THAT THE LIMITATION OF LIABILITY SET FORTH HEREIN HAS BEEN INCLUDED AS A
MATERIAL INDUCEMENT FOR LCPTRACKER TO ENTER INTO THIS AGREEMENT AND THAT LCPTRACKER
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR ANY AGREEMENT BUT FOR THE LIMITATIONS
OF LIABILITY AS SET FORTH HEREIN. THIS LIMITATION OF LIABILITY IS SHARED BETWEEN ALL
AFFILATES AND CLIENT.
9. TERM. This Agreement commences on the Effective Date hereof and terminates on December 11, 2027, except
as provided in section 9.1 or section 10, "Termination", below.
9.1 The term of this Agreement may be extended for no more than two, one-year periods only upon written
approval of both parties at least 30 days before the first day of the next one-year extension period. The Client's
Purchasing Manager or his or her designee is authorized to sign the written approval on behalf of the Client
based on LCPtracker's satisfactory performance. The extension of this Agreement by the Client is not a waiver
or compromise of any default or breach of this Agreement by LCPtracker existing at the time of the extension
whether or not known to the Client.
10. TERMINATION
10.1(X) Termination by LCPtracker. (a) LCPtracker may terminate a Product Schedule for cause: (i) upon thirty
(30) days written notice to the Client of a material breach if such breach remains uncured at the expiration of such
period, or (ii) if there is a Service Suspension which is not in the opinion of LCPtracker commercially reasonably
or practically capable of being cured. (b) LCPtracker may terminate(effective upon notice to the Client)for a breach
of Section 2.2.
10.1(Y) Termination for Breach. (A) Upon determining that a breach (as defined in paragraph 10.7. (C) below)
has occurred, Client may give written notice of the breach to LCPtracker. The written notice may suspend
performance under this Agreement and must provide at least 30 days for LCPtracker to cure the breach. (B) If
LCPtracker fails to cure the breach to Client's satisfaction within the time stated in the written notice, Client may
terminate this Agreement immediately. (C) For purposes of this section, a breach occurs when, in the reasonable
determination of Client, LCPtracker has: (1) Obtained or used funds illegally or improperly; (2) Failed to comply
with any material part of this Agreement; (3) Submitted a substantially incorrect or incomplete report to Client; or
(4) Improperly performed any of its obligations under this Agreement
10.2.Termination for Discontinuance.LCPtracker may,with no liability to the Client(except a pro rata refund of applicable
Service Fees) or the Users, also terminate this Agreement and/or any applicable Product Schedule(s) to the extent
LCPtracker discontinues any Services upon one hundred and eighty (180) days prior written notice to Client.
10.3. Effect of Termination. Upon termination of a Product Schedule or this Agreement for any reason, Client's
(and any Users') right to continue using the Services under the applicable Product Schedule(s) shall
immediately cease and Client shall destroy or return (as directed by LCPtracker) all Confidential Information
related to such Product Schedule. A termination of a Product Schedule hereunder does not affect any other
remaining Product Schedule(s) hereunder which shall remain subject to the terms of this Agreement unless
such Product Schedule(s) are terminated in accordance with the terms hereof or unless the Agreement is
terminated. Upon request from Client in writing upon termination of this Agreement, LCPtracker shall promptly
delete all Client Data in the Services (in accordance with LCPtracker normal back-up procedures, but any Client
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Data not deleted due to a back-up procedure will not be kept for longer than six (6) months in the event of a
request for deletion, and during that time LCPtracker's obligations under this Agreement for confidentiality will
continue to apply). Client acknowledges that if the Client Data is requested to be returned, Client will incur the
applicable fees for the requested extract format as set forth on LCPtracker's then current price
list. Notwithstanding the foregoing, Client may elect to download the Client Data at any stage during the Term.
If a portable drive is requested at a charge from LCPtracker, Client accepts the risk of damage or loss of this
drive during transit. All Sections intended by their nature to survive termination, including, without limitation,
Sections 5, 6, 7, 8, 10 and 11 shall survive any termination or expiration of this Agreement.
10.4. Client's Rights upon Termination. Upon termination for breach under this section, Client may demand
repayment by LCPtracker of any prepaid Service Fees pro rata from the date of termination. LCPtracker shall
promptly refund all such monies upon demand. This section survives the termination of this Agreement.
10.5. Service Suspension. Notwithstanding anything to the contrary in this Agreement, LCPtracker may
temporarily suspend Client's and any User's access to any portion or all of the Services if: (i) LCPtracker reasonably
determines that (a) there is a threat or attack on any of the LCPtracker IP; (b) Client's or any User's use of the
LCPtracker IP disrupts or poses a security risk to the LCPtracker IP or to any other customer or vendor of
LCPtracker; (c) any User is using the LCPtracker IP for fraudulent or illegal activities; (d) subject to Applicable Law,
Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors
or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution,
or similar proceeding; or (e) LCPtracker's provision of the Services to Client or any User is (x) prohibited by
Applicable Law, or(y) deemed by LCPtracker to be commercially unfeasible due to Applicable Law; (ii) any vendor
of LCPtracker has suspended or terminated LCPtracker's access to or use of any third-party services or products
required to enable Client to access the Services; or (iii) in accordance with Section 3.3 (any such suspension
described in subclause(i), (ii), or(iii) of this Section 10.5, a"Service Suspension"). LCPtracker will have no liability
for any liabilities or any other consequences that Client or any User may incur as a result of a Service Suspension.
10.6. Termination for Non-Allocation of Funds. The terms of this Agreement are contingent on the approval of
funds by the appropriating government agency. If sufficient funds are not allocated, then Client, upon at least 30
days' advance written notice to LCPtracker, may: (a)modify the services provided by LCPtracker under this
Agreement; or (b) terminate this Agreement. There are no refunds for termination under this Section 10.6,
10.7. Termination without Cause. In circumstances other than those set forth above, Client's CIO may terminate
this Agreement by giving at least 30 days advance written notice to LCPtracker. There are no refunds for
termination under this Section 10.7,
10.8. No Penalty or Further Obligation. Any termination of this Agreement by Client under this section is without
penalty to or further obligation of Client except to pay Service Fees that may be owing at the time.
11. GENERAL PROVISIONS
11.1. Governing Law. The laws of the State of California govern all matters arising from or related to this
Agreement.
11.1.1. Jurisdiction and Venue. This Agreement is signed and performed in Fresno County, California.
LCPtracker consents to California jurisdiction for actions arising from or related to this Agreement, and, subject to
the Government Claims Act, all such actions must be brought and maintained in Fresno County.
11.2. Notices. Notwithstanding the following, routine daily notices and updates pursuant to the Product Schedule
may be sent via email address on file that Client provides for contact. The persons and their addresses having
authority to give and receive notices provided for or permitted under this Agreement include the following:
For Client:
Chief Information Officer
County of Fresno
333 W. Pontiac Way
Clovis, CA 93612
gwpbusinessoffice(a)fresnocountyca.gov
For LCPtracker:
General Counsel, cc. Chief Revenue Officer
LCPtracker, Inc.
117 East Chapman, Orange, California 92866
legal(a)Icotracker.com
Either party may change the information in this section by giving notice as provided for in this section. Each notice
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between Client and LCPtracker provided for or permitted under this Agreement must be in writing, state that it is a
notice provided under this Agreement, and be delivered either by personal service, by first-class United States
mail, by an overnight commercial courier service, or by Portable Document Format (PDF) document attached to
an email.
(A) A notice delivered by personal service is effective upon service to the recipient.
(B) A notice delivered by first-class United States mail is effective three Client business days after deposit in the
United States mail, postage prepaid, addressed to the recipient.
(C)A notice delivered by an overnight commercial courier service is effective one Client 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.
(D) A notice delivered by PDF document attached to an email is effective when transmission to the recipient is
completed (but, if such transmission is completed outside of Client's business hours, then such delivery is deemed
to be effective at the next beginning of Client's business day), provided that the sender maintains a machine record
of the completed transmission.
For all claims arising from or related to this Agreement, nothing in this Agreement establishes, waives, or modifies
any claims presentation requirements or procedures provided by law, including the Government Claims Act
(Division 3.6 of Title 1 of the Government Code, beginning with section 810).
11.3. Severability. If a provision of the Agreement or portion thereof is found to be invalid, illegal, or unenforceable under
Applicable Law, it shall not invalidate or render unenforceable the remainder of such provision or the remaining provisions
of the Agreement. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties
shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually
acceptable manner.
11.4. Export Compliance. The Services may be subject to export laws and regulations of the United States and
other jurisdictions. Client shall not access or use Services in violation of any U.S. export law or regulation.
11.5. Anti-Corruption. Each Party acknowledges that it has not received or been offered any illegal or improper
bribe, kickback, payment, gift, or thing of value from the other Party employees or agents in connection with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this
restriction. If either Party learns of any violation of this restriction, such Party will promptly notify the other Party in
writing.
11.6. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Because
of its status as an independent contractor, LCPtracker has no right to employment rights or benefits available to
Client employees. LCPtracker is solely responsible for providing to its own employees all employee benefits
required by law. LCPtracker shall save Client harmless from all matters relating to the payment of LCPtracker's
employees, including compliance with Social Security withholding and all related regulations.
LCPtracker will reach out from time to time with opportunities to Client in relation to other LCPtracker product
opportunities and Client consents to this. The parties acknowledge that, during the term of this Agreement,
LCPtracker may provide services to others unrelated to Client. No employee, director, or officer of LCPtracker shall
be held personally liable as a result of the Services provided under this Agreement. There are no third-party
beneficiaries to this Agreement.
11.7. Waiver. No failure or delay by either Party in exercising any right or partial right, remedy, power or privilege
under this Agreement shall constitute a waiver of that right, remedy, power or privilege. Payment, waiver, or
discharge by Client of any liability or obligation of LCPtracker under this Agreement on any one or more occasions
is not a waiver of performance of any continuing or other obligation of LCPtracker and does not prohibit
enforcement by Client of any obligation on any other occasion.
11.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of
law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).
Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Product
Schedules), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party,
provided that the assignee agrees in writing to be bound by the terms of this Agreement and has sufficient funds
to discharge the assignor's liabilities hereunder. A Party's sole remedy for any purported assignment by the other
Party in breach of this paragraph shall be, at the non-assigning Party's election, termination of this Agreement
upon written notice to the assigning Party and payment of all sums owing under the terms of this Agreement.
11.9. Entire Agreement. This Agreement, including all exhibits and all Product Schedules, constitutes the entire
agreement between the Parties and supersedes and replaces all prior and contemporaneous agreements,
proposals or representations, written or oral, concerning its subject matter, including any agreements concerning
obligations of confidentiality between the Parties. No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against
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whom the modification, amendment or waiver is to be asserted, and in order to effectively amend the terms of this
Agreement, any amendment must specifically call out the Section of this Agreement to be amended. If there is any
inconsistency between the terms of this Agreement without its exhibits and the terms of the exhibits, then the
inconsistency will be resolved by giving precedence first to the terms of this Agreement without its exhibits, and
then to the terms of the exhibits, except that any questions in relation to pricing will be determined by the provisions
in the Product Schedule first.
11.10. Counterparts. This Agreement and any Product Schedule hereunder may be executed in one or more
counterparts; each of which shall be deemed an original and all of which together shall constitute one and the
same instrument.
11.11. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached
this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any
obligations to pay Service Fees hereunder by Client), if and to the extent such failure or delay is caused by an
event of Force Majeure ("Force Majeure" hereunder means any acts of God, government, war, terrorism, riot, fire,
floods, earthquakes, explosions, strikes, lockouts, cessation of labor,trade disputes, breakdowns, accidents of any
kind which are beyond the reasonable control of a Party, or passage of law or any action taken by a governmental
or public authority, which makes it commercially unreasonable to continue to have this Agreement in force). Either
Party shall promptly notify the other Party upon becoming aware of a circumstance of force majeure, such notice
to contain the details and nature of the circumstances giving rise to the force majeure event, including the
anticipated extent of the delay and planned remedy. For clarity, a force majeure event shall not relieve or excuse
one Party from its obligations hereunder in the event that such obligations are not directly affected by such force
majeure event.
11.12. Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of
its obligations under Section 2.2, would cause LCPtracker irreparable harm for which monetary damages would
not be an adequate remedy and agrees that, in the event of such breach or threatened breach, LCPtracker will be
entitled to seek equitable relief from any court,without any requirement to post a bond or other security, or to prove
actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are
in addition to all other remedies that may be available at law, in equity, or otherwise.
11.13. Dispute Resolution. If any dispute arises between the Parties in respect of this Agreement, a Party must:
(a) issue a written notice to the other Party notifying such other Party of the existence of a dispute; and (b) use
good faith efforts to resolve the dispute through negotiation. Notwithstanding the timeframes set forth below, it is
the intent of the Parties to work in good faith to resolve the matter as soon as possible.
11.14. Non-discrimination. During the performance of this Agreement, LCPtracker shall not unlawfully
discriminate against any employee or applicant for employment, or recipient of services, because of race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military status or veteran
status pursuant to all applicable State of California and federal statutes and regulation.
11.15. Construction. The final form of this Agreement is the result of the parties' combined efforts. If anything in
this Agreement is found by a court of competent jurisdiction to be ambiguous, that ambiguity shall not be resolved
by construing the terms of this Agreement against either party.
11.16.Authorized Signature. LCPtracker represents and warrants to Client that: (a) LCPtracker is duly authorized
and empowered to sign and perform its obligations under this Agreement and (b) the individual signing this
Agreement on behalf of LCPtracker is duly authorized to do so and his or her signature on this Agreement legally
binds LCPtracker to the terms of this Agreement.
11.17. 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) version of
an original 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.
(E) 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.
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11.18. Insurance Requirements. LCPtracker shall comply with all the insurance requirements in this Section.
11.18.1. Required Policies.
Without limiting Client's right to obtain indemnification from LCPtracker or any third parties, LCPtracker, at its sole
expense, shall maintain in full force and effect the following insurance policies throughout the term of this
Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not less than Two Million
Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000). This policy
must be issued on a per occurrence basis. Coverage must include products, completed operations, property
damage, bodily injury, personal injury, and advertising injury. LCPtracker shall obtain an endorsement to this policy
naming the County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, as
additional insureds, but only insofar as the operations under this Agreement are concerned. Such coverage for
additional insureds will apply as primary insurance and any other insurance, or self-insurance, maintained by Client
is excess only and not contributing with insurance provided under LCPtracker's policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury and for property damages. Coverage must include any auto used in connection
with this Agreement.
(C) Workers Compensation. Workers compensation insurance as required by the laws of the State of California
with statutory limits.
(D) Emplover's Liability. Employer's liability insurance with limits of not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury and for disease.
(E) Technology Professional Liability (Errors and Omissions). Technology professional liability (errors and
omissions) insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and in the
aggregate. Coverage must encompass all of LCPtracker's obligations under this Agreement, including but not
limited to claims involving Cyber Risks.
(F) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars ($2,000,000) per
occurrence. Coverage must include claims involving Cyber Risks. The cyber liability policy must 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 LCPtracker.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security Breach, which may include
Disclosure of Personal Information to an Unauthorized Third Party; (ii) data breach; (iii) breach of any of
LCPtracker's obligations under Section 5 of this Agreement; (iv) system failure; (v) data recovery; (vi) failure to
timely disclose data breach or Security Breach; (vii) failure to comply with privacy policy; (viii) payment card
liabilities and costs; (ix) infringement of intellectual property, including but not limited to infringement of copyright,
trademark, and trade dress; (x) invasion of privacy, including release of private information; (xi) information theft;
(xii) damage to or destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion related to
LCPtracker's obligations under this Agreement regarding electronic information, including Personal Information;
(xv)fraudulent instruction; (xvi)funds transfer fraud; (xvii)telephone fraud; (xviii) network security; (xix) data breach
response costs, including Security Breach response costs; (xx) regulatory fines and penalties related to
LCPtracker's obligations under this Agreement regarding electronic information, including Personal Information;
and (xxi) credit monitoring expenses.
11.18.2. Additional Requirements
(A) Verification of Coverage. Within 30 days after LCPtracker signs this Agreement, and at any time during the
term of this Agreement as requested by Client's Risk Manager or the County Administrative Office, LCPtracker
shall deliver, or cause its broker or producer to deliver, to Client's Risk Manager, at 2220 Tulare Street, 16th Floor,
Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by mail or email to the person
identified to receive notices under this Agreement, certificates of insurance and endorsements for all of the
coverages required under this Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been obtained and is in full force; (2)
Client, its officers, agents, employees, and volunteers are not responsible for any premiums on the policy; and (3)
LCPtracker has waived its right to recover from Client, its officers, agents, employees, and volunteers any amounts
paid under any insurance policy required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include an endorsement, that the
County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, are additional
insureds insofar as the operations under this Agreement are concerned. The commercial general liability insurance
certificate must also state that the coverage shall apply as primary insurance and any other insurance, or self-
insurance, maintained by Client shall be excess only and not contributing with insurance provided under
LCPtracker's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any auto used in connection with
this Agreement.
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(v) The technology professional liability insurance certificate must also state that coverage encompasses all of
LCPtracker's obligations under this Agreement, including but not limited to claims involving Cyber Risks, as that
term is defined in this Agreement.
(vi) The cyber liability insurance certificate must also state that it is endorsed, and include an endorsement, 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 LCPtracker.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be issued by admitted
insurers licensed to do business in the State of California and possessing at all times during the term of this
Agreement an A.M. Best, Inc. rating of no less than A: VII.
(C) Notice of Cancellation or Change. For each insurance policy required under this Agreement, LCPtracker shall
provide to Client, or ensure that the policy requires the insurer to provide to Client, written notice of any cancellation
or change in the policy as required in this paragraph. For cancellation of the policy for nonpayment of premium,
LCPtracker shall, or shall cause the insurer to, provide written notice to Client not less than 10 days in advance of
cancellation. For cancellation of the policy for any other reason, and for any other change to the policy, LCPtracker
shall, or shall cause the insurer to, provide written notice to Client not less than 30 days in advance of cancellation
or change. Client in its sole discretion may determine that the failure of LCPtracker or its insurer to timely provide
a written notice required by this paragraph is a breach of this Agreement.
(D) Client's Entitlement to Greater Coverage. If LCPtracker has or obtains insurance with broader coverage, higher
limits, or both, than what is required under this Agreement, then Client requires and is entitled to the broader
coverage, higher limits, or both. To that end, LCPtracker shall deliver, or cause its broker or producer to deliver, to
Client's Risk Manager certificates of insurance and endorsements for all of the coverages that have such broader
coverage, higher limits, or both, as required under this Agreement.
(E) Waiver of Subrogation. LCPtracker waives any right to recover from Client, its officers, agents, employees, and
volunteers any amounts paid under the policy of worker's compensation insurance required by this Agreement.
LCPtracker is solely responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but LCPtracker's waiver of subrogation under this paragraph is effective whether or not LCPtracker obtains
such an endorsement.
(F) Client's Remedy for LCPtracker's Failure to Maintain. If LCPtracker fails to keep in effect at all times any
insurance coverage required under this Agreement, Client may, in addition to any other remedies it may have,
suspend or terminate this Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to LCPtracker. Client may offset such charges against any amounts owed by
Client to LCPtracker under this Agreement.
(G) Subcontractors. LCPtracker shall require and verify that all subcontractors used by LCPtracker to provide
services under this Agreement(directly to Client and not generally to all of LCPtracker's clients) maintain insurance
meeting all insurance requirements provided in this Agreement. This paragraph does not authorize LCPtracker to
provide services under this Agreement using subcontractors.
IN WITNESS WHEREOF, authorized representatives of the Parties have executed this Agreement effective as of the
Effective Date defined above.
LCPtracker, Inc. Client: County of Fresno
fChs VklI Riley Blackburn Digitally .241d by 4: 5:53-kbum
By:14pisWipi;il 19,�W4 i I&57 FST By: Date:2024.12.24 14:05:53 08'00'
[LCPtracker Authorized Person Signature] [Client Authorized Person Signature]
Name: Kris Vincil Name: Riley Blackburn
[LCPtracker Authorized Person Name] [Client Authorized Person Name]
Title:Vice President of Customer Success Title: Purchasing Manager
[LCPtracker Authorized Person Title] [Client Authorized Person Title]
Date:
19/12/2024 Date: 12/24/24
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BULK PROJECT PRICING PRODUCT SCHEDULE, dated as of December 11, 2024 ("Product Schedule"), to the
Master Subscription Software as a Service Agreement, dated as of October 18, 2024 (the "Agreement")
between LCPtracker and Client
Terms not defined herein shall have the meaning ascribed to them in the Agreement unless a new definition is provided herein. The
address for invoicing the Client is by email at pwpbusinessoffice&fresnocountyca.g_ov(Client to inform LCPtracker in writing thirty days
in advance if this changes). Both parties hereto agree that LCPtracker is providing access to the following Services subject to the terms
and conditions of the Agreement and this Product Schedule as follows:
A.SERVICES
Subscription Term is 3 years and begins on the date of this Product Schedule.
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B. BULK PROJECT PRICING TABLE
Frequency Service Fee
LCPtracker Pro - Pricing
Bulk Project Pricing -Annual Access Service Fee
Capacity: Up to $200 million
Bulk project Annual Access Service Fee for access Year 1 (2024) $28,799.20
to LCPtracker Professional comprising:
• Unlimited administrative Users at no cost to Client
• Unlimited contractor Users at no cost directly to Client Year 2 (2025) $32,129.00
• Administrator phone,email,and Live Chat/FAQ/Chatbot technical software
support as needed(not training). Year 3 (2026) $33,736.00
• Contractor email and Live Chat/FAQ/Chatbot technical software support as
needed (not training).
Unlimited administrator and registered contractor User access to on- Year 4 (2027) $35,422.00
demand,pre-recorded web training videos during the Term.
Fixed Annual Multiple Projects Fee Option Year 5 (2028) $37,193.00
This is a flat rate annual priced package for a one-year commitment for LCPtracker
Professional Services.
Year 1-3 $94,664.20
Year 4 $35,422.00
LCPtracker Pro TOTAL SERVICE FEES* Year 5 $37,193.00
GRAND TOTAL $167,279.20
Onsite Module - Pricing Frequency Service Fee
Year 1 (2024) $3,287.20
Construction Capacity: Up to $200 million Year 2 (2025) $3,667.00
Year 3 (2026) $3,851.00
Year 4 (2027) $4,043.00
Year 5 (2028) $4,245.00
Year 1-3 $10,805.20
Onsite Module TOTAL SERVICE FEES Year 4 $4,043.00
Year 5 $4,245.00
GRAND TOTAL $19,093.20
Optional Services
Wage(prevailing,union or living) Data Entry&Maintenance Pricing: Hourly $125
*Sales tax will be added per your state law at final invoicing.
(uponBulk Project Service Fee(2024 Standard Pricing)for Administrator access to the Services
year of the Subscription Term Note that these may increase 5%per annum if Client reaches an additional tier in any year of the Term.
Construction Capacity in the relevant LCPtracker Professional D. Module
periodyearly of the Subscription Term Annual Access Service Fees Annual Access Service Fees Access S
Up to$5 million $4,119 $2,169 $1,859
Up to$10 million $7,999 $4,029 $2,169
Up to$25 million $11,999 $6,029 $2,389
Up to$50 million $20,9991 $10,579 $3,159
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Up to$100 million $27,999 $14,1891 $3,639
Up to$200 million $35,999 $18,289 $4,109
Up to$300 million $44,999 $22,589 $4,779
Up to$400 million $52,999 $26,169 $5,509
Up to$500 million $61,999 $31,029 $6,299
Up to$750 million $69,999 $34,689 $6,839
Up to$1 billion $77,999 $38,949 $7,529
Up to$2 billion $89,999 $45,129 $8,729
Up to$3 billion $109,999 $54,999 $10,569
Up to$4 billion $127,999 $64,159 $12,379
Up to$6 billion $164,999 $82,499 $16,099
Up to$8 billion $199,999 $99,959 $18,559
Up to$10 billion $233,999 $116,999 $22,119
Up to$12 billion $263,999 $131,999 $24,819
Up to$14 billion $284,999 $142,499 $26,789
Up to$16 billion $304,999 $152,499 $28,369
Up to$18 billion $322,999 $161,499 $30,039
Up to$20 billion $339,999 $169,999 $31,279
Up to$22 billion $359,999 $179,999 $32,759
Up to$24 billion $371,999 $185,999 $33,479
Up to$26 billion $389,999 $194,999 $34,709
Up to$28 billion $405,999 $202,999 $35,729
Up to$30 billion $419,999 $209,999 $36,539
Up to$35 billion $472,499 $236,249 $40,63
Up to$40 billion $519,999 $259,999 $44,199
Up to$45 billion $562,499 $281,2491 $47,249
Up to$50 billion $599,999 $299,9991 $49,799
*"Construction Capacity'means the value of construction calculated by adding the correct total(not just labor costs)updated construction bid award value of all active
("Open/Active")projects in the Client's account(which sum also includes all accounts in their Affiliate's'accounts)in the Licensed Software Services.The value of projects
marked as"Open/Active"within the Services for the Client is determined by the accurate total of project Budget amounts including change orders.This calculation is done
monthly by LCPtracker.If a project is closed and no longer marked"Active",the project will no longer be counted in that month's open active projects.
C. CONSTRUCTION CAPACITY
(a)The original winning bid amount for Client's construction project must be provided by Client to LCPtracker so it may be
entered accurately in the relevant project "Budget"field in the LCPtracker Professional services platform. The winning bid
amount must be updated by Client if change orders exceed 25% of the original total project winning bid amount for the
relevant project (through written requests to LCPtracker Support Department- support@LCPtracker.com).
(b) Failure by Client or their Affiliates to accurately update LCPtracker Support Department of changes to the"Budget"field
will be a material breach under the Agreement and will not remove the Client's obligation to pay the amounts due for the
Services based on an accurate "Budget" field. If a project is completed and closed (responsibility of Client to perform to
avoid being billed for it),the project will no longer be counted in that month's open active projects for billing.
(c) Periodically LCPtracker performs audits of project "Budget" fields to ensure accuracy and may reach out to Client to
confirm the project"Budget" amounts accuracy. Failure by Client to timely respond to a request for information in relation
to any such audit will allow LCPtracker to adjudicate that labor wages will account for 25%of the supplied project"Budget"
amount and amend the relevant "Budget" amount accordingly in the Services for billing purposes. Client will be free to
dispute this value with LCPtracker by providing accurate information in relation to Construction Capacity at any time.
D. PAYMENT TERMS
(a)Service Fees are due under this Product Schedule are due on the date hereof or on the yearly anniversary hereof unless
provided otherwise.
(b) Service Fees for access to the Services detailed above will change if one of the following events occurs: (i) If the sum
of all"Budget"amounts for projects entered in LCPtracker during the then current year of the Subscription Term exceed the
Construction Capacity level purchased (Client will be invoiced for an amount equal to the difference between the
Construction Capacity level provided for that year of the Subscription Term and the cost level for which the current correct
Construction Capacity applies, prorated for the number of months remaining in the then current year of the Subscription
Term. This invoice shall be due and payable upon receipt. The new rate will then be applicable to the immediately
following year of the Subscription Term), (ii) The Construction Capacity increases beyond the previously purchased level
on the annual anniversary of this Product Schedule, or(iii)A notice is given to Client pursuant to Section D(d) below.
(c) Fees for optional additional services to be included into the Services shall be invoiced and due upon delivery of the
applicable service at the then current pricing of LCPtracker, unless any such service exceeds thirty(30) days,then invoices
will be rendered at the end of each month and payable upon receipt thereof by Client by email.
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(d) The prices and terms of this Product Schedule are subject to change if Client goes over the Construction Capacity
detailed above to a new tier, and at the sole discretion of LCPtracker. A thirty (30) day notice of increase in prices for the
various tiers of Construction Capacity will be provided to Client of such changes by an email to the Client contact and will
only become effective to Client on said renewal date. These pricing rules apply for the 2024-2028 period only after which
the Parties will agree to new pricing.
(e)If Client has no active projects at the time of a yearly renewal and Client wishes to keep its account open,the then current
LCPtracker active database fee shall apply.
(f) The LCPtracker privacy policy at https://Icptracker.com/privacy-policy-for-lcptracker describes how LCPtracker stores
and treats your information.
(g)Sales tax will be added per your state law at final invoicing.
E.ADDITIONAL TERMS:
1. LCPtracker will make available by telephone,email,and live chat all qualified personnel necessary from 5:00 am
PST to 5:30 pm PST, Monday through Friday,excluding all Federal holidays and discretionary LCPtracker internal
training days (no more than two training days a year) ("LCPtracker Basic Support Hours") in order to provide
problem resolution.
2. For Start Up activities for any of the LCPtracker Professional, Daily Reporter&OnSite modules, associated
implementation and training activities initiated by LCPtracker account services team must have Client consistent
engagement(i.e., attending meetings, making database configuration decisions,etc.)within the timeframes
indicated below or Start Up fees (at the then applicable published rate)will be due to be paid again by Client to
LCPtracker in order for those Start-Up services detailed above to be provided:
a) Basic — Implementation and training activities must result in Client consistent engagement within 90 days of
LCPtracker account services initiation.
b) Standard — Implementation and training activities must result in Client consistent engagement within 180 days
of LCPtracker account services team initiation.
c) Select— Implementation and training activities must result in Client consistent engagement within 365 days of
LCPtracker account services team initiation.
LCPtracker, Inc. Client: County of Fresno
[�I/ I//,�yk ' I' Digitally signed by Riley Blackburn
!L/ /S l Riley Blackburn Date:2024.12.24 14:13:25-08'00'
By:,� �� zg By:
[Client Authorized Person Signature]
Name: Kris Vincil Name: Riley Blackburn
[Client Authorized Person Name]
Title: Vice President of Customer Success Title: Purchasing Manager
[Client Authorized Person Title]
Date:
19/12/2024 Date: 12/24/2024
For accounting use only:
Org No.:45104512
Account No.: 7296
Fund No.: 0010
Subclass No.: 11000
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