HomeMy WebLinkAbout17-178 - PFM Solutions LLC - Whitebirch Service Software Long-Range Financial Planningpfm
PFM SOLUTIONS LLC
SUBSCRIPTION SERVICES AGREEMENT
Whitebirch'M Service Software
17-178
Contract Approval N/A
THIS SUBSCRIPTION SERVICES AGREEMENT (the "Agreement") is between City of Tukwila ("Client"), and
PFM Solutions LLC located at 1735 Market Street, 43`d Floor, Philadelphia, PA 19103 ("PFM -S"). Client
and PFM -S may be referred to herein together as the "Parties" and each a "Party."
This Agreement is a completely integrated agreement and, together with the Advisory Services Agreement
attached hereto as Exhibit A and Order Form attached hereto as Exhibit B. constitutes the final agreement
between the parties relating to its subject matter and is a complete and exclusive statement of the terms
of that agreement. It supersedes any and all prior or concurrent letters, memoranda, representations,
discussions, negotiations, understandings and agreements, whether written or oral, with respect to such
subject matter. If you are entering into this Agreement on behalf of a company or other legal entity, you
represent that you have the authority to bind such entity and its affiliates to the Terms and Conditions
herein.
IN WITNESS WHEREOF, the duly Authorized Representatives of the Parties have executed this Agreement
on 27th day of September, 2017 ("Effective Date").
PFM SOLUTIONS, LLC
Signature:
Name: Albert P. Matteo, Jr
Title:
President
Telephone: 215.557.1491
CITY OF TUKWILA
Signature:
Name:
Title:
Telephone:
o-( -11
411
or
90t19 - '-t33 -1 551D
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WHEREAS, Client wishes to procure from PFM -S the software services described herein, and PFM -S wishes
to provide such services to Client, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
1. Definitions.
"Access Credentials" means any user name, identification number, password, license or
security key, security token, PIN or other security code, method, technology or device
used, alone or in combination, to verify an individual's identity and authorization to access
and use the Hosted Services.
1.2. "Action" has the meaning set forth in Section 13.1.
1.3. "Agreement" has the meaning set forth in the preamble.
1.4. "Authorized User" means each of the individuals authorized to use the Services pursuant
to Section 3.1 and the other terms and conditions of this Agreement.
1.5. "Confidential Information" has the meaning set forth in Section 9.1.
1.6. "Client" has the meaning set forth in the preamble.
1.7. "Client Data" means information, data and other content, in any form or medium, that is
collected, downloaded or otherwise received, directly or indirectly from Client or an
Authorized User by or through the Services, including audited financial statements,
general ledger information, budget information, and all other data and assumptions
required to be provided by Client in order for Client to use the Services. For the avoidance
of Doubt, Client Data does not include Resultant Data, but may be included in System
Output.
1.8. "Client Failure" has the meaning set forth in Section 4.2.
1.9. "Client Indemnitee" has the meaning set forth in Section 13.1.
1.10. "Client Systems" means the Client's information technology infrastructure, including
computers, software, hardware, databases, electronic systems (including database
management systems) and networks, whether operated directly by Client or through the
use of third -party services.
1.11. "Disclosing Party" has the meaning set forth in Section 9.1.
1.12. "Documentation" means any manuals, instructions, descriptions or other documents or
materials that PFM -S provides or makes available to Client in any form or medium and
which describe the functionality, components, features or requirements of the Services
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or PFM -S Materials, including any aspect of the installation, configuration, integration,
operation, use, support or maintenance thereof.
1.13. "Effective Date" has the meaning set forth in the preamble.
1.14. "Fees" has the meaning set forth in Section 7.1.
1.15. "Force Majeure Event" has the meaning set forth in Section 14.1.
1.16. "Harmful Code" means any software, hardware or other technology, device or means,
including any virus, worm, malware or other malicious computer code, the purpose or
effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable,
distort, or otherwise harm or impede in any manner any (i) computer, software, firmware,
hardware, system or network or (ii) any application or function of any of the foregoing or
the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent
Client or any Authorized User from accessing or using the Services or PFM -S Systems as
intended by this Agreement.
1.17. "Hosted Services" has the meaning set forth in Section 2.1.
1.18. "Indemnitee" has the meaning set forth in Section 13.3.
1.19. "Indemnitor" has the meaning set forth in Section 13.3.
1.20. "Initial Term" has the meaning set forth in Section 10.1.
1.21. "Intellectual Property Rights" means any and all registered and unregistered rights
granted, applied for or otherwise now or hereafter in existence under or related to any
patent, copyright, trademark, trade secret, database protection or other intellectual
property rights laws, and all similar or equivalent rights or forms of protection, in any part
of the world.
1.22. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution,
treaty, common law, judgment, decree or other requirement of any federal, state, local
or foreign government or political subdivision thereof, or any arbitrator, court or tribunal
of competent jurisdiction.
1.23. "Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys' fees and the costs of enforcing any right to
indemnification hereunder and the cost of pursuing any insurance providers.
1.24. "Model" has the meaning set forth in Exhibit A.
1.25. "Person" means an individual, corporation, partnership, joint venture, limited liability
entity, governmental authority, unincorporated organization, trust, association or other
entity.
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1.26. "PFM -S Indemnitee" has the meaning set forth in Section 13.2.
1.27. "PFM -S Materials" means the Service Software, Resultant Data, Documentation and
PFM -S Systems and any and all other information, data, specifications, documents,
materials, works and other content, devices, methods, processes, hardware, software
and other technologies and inventions, including any deliverables, technical or functional
descriptions, requirements, plans, reports, report templates, Models, Presentation Decks
used to create System Output, whether provided or used by PFM -S or any Subcontractor
in connection with the Services or otherwise comprise or relate to the Services or PFM -S
Systems. For the avoidance of doubt, PFM -S Materials include all information, data or
other content derived from PFM -S' monitoring of Client's access to or use of the Services,
but do not include Client Data.
1.28. "PFM -S Systems" means the information technology infrastructure used by or on behalf
of PFM -S in performing the Services, including all computers, software, hardware,
databases, electronic systems (including database management systems) and networks,
whether operated directly by PFM -S or through the use of third -party services.
1.29. "Presentation Deck" has the meaning set forth in Exhibit A.
1.30. "Process" means to take any action or perform any operation or set of operations that
the Services are capable of taking or performing on any data, information or other
content. "Processing" and "Processed" have correlative meanings.
1.31. "Receiving Party" has the meaning set forth in Section 9.1.
1.32. "Renewal Term" has the meaning set forth in Section 10.2.
1.33. "Representatives" means, with respect to a party, that Party's employees, officers,
directors, agents, independent contractors, subcontractors and legal advisors.
1.34. "Resultant Data" means information, data and other content that is derived by or
through the Services from Processing Client Data and is sufficiently different from such
Client Data that such Client Data cannot be reverse engineered or otherwise identified
from the inspection, analysis or further Processing of such information, data or content.
1.35. "Scheduled Downtime" has the meaning set forth in Section 5.2.
1.36. "Service Software" means the PFM -S WhitebirchTM Service Software application or
applications and any third -party or other software, and all new versions, updates,
revisions, improvements and modifications of the foregoing, that PFM -S provides remote
access to and use of as part of the Services.
1.37. "Services" has the meaning set forth in Section 2.1.
1.38. "Subcontractor" has the meaning set forth in Section 2.4.
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1.39. "System Output" means reports, charts, and other output delivered by PFM -S to Client
by or through the Services.
1.40. "Term" has the meaning set forth in Section 10.2.
1.41. "Third Party Materials" means materials and information, in any form or medium,
including any open -source or other software, documents, data, content, specifications,
products, equipment or components of or relating to the Services that are not proprietary
to PFM -S.
2. Services.
2.1. Subscription Service. Subject to and conditioned on Client's and its Authorized Users'
compliance with the terms and conditions of this Agreement, during the Term, PFM -S
shall use commercially reasonable efforts to provide to Client and its Authorized Users
the services described in the attached Exhibit A and in this Agreement (collectively, the
"Services") in accordance with the terms and conditions hereof, including to host,
manage, operate and maintain the Service Software for remote electronic access via the
Internet and use by Client and its Authorized Users ("Hosted Services"). The terms and
conditions of this Agreement shall also apply to updates and upgrades to the Services
subsequently provided by PFM -S to Client.
2.2. Service and System Control. Except as otherwise expressly provided in this Agreement,
as between the Parties:
2.2.1. PFM -S has and will retain sole control over the operation, provision, maintenance
and management of the Services and PFM -S Materials, including the: (i) PFM -S
Systems; (ii) selection, deployment, functionality, modification or replacement of
the Service Software; and (iii) performance of Service Software maintenance,
upgrades, corrections or repairs, provided that, for clarity, nothing in this Section
2.2.1 shall create an obligation to perform any such maintenance, upgrades,
corrections or repairs; and
2.2.2. Client has and will retain sole control over the operation, maintenance and
management of, and all access to and use of, the Client Systems, and sole
responsibility for all access to and use of the Services and PFM -S Materials by any
Person by or through the Client Systems or any other means controlled by Client
or any Authorized User, including any: (i) information, instructions or materials
provided by any of them to the Services or PFM -S; (ii) results obtained from any
use of the Services or PFM -S Materials; and (iii) conclusions, decisions or actions
based on such use.
2.3. Changes. PFM -S reserves the right, in its sole discretion, to make any changes to the
Services and PFM -S Materials that it deems necessary or useful to: (a) maintain or
enhance (i) the quality or delivery of PFM -S' services to its clients, (ii) the competitive
strength of or market for PFM -S' services or (iii) the Services' cost efficiency or
performance; or (b) to comply with applicable Law.
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2.4. Subcontractors. PFM -S may from time to time in its discretion engage third parties to
perform all or any part of the Services (each, a "Subcontractor").
2.5. Suspension or Termination of Services. PFM -S may, directly or indirectly, by any lawful
means, suspend, terminate or otherwise deny Client, any Authorized User, or any other
Person access to or use of all or any part of the Services or PFM -S Materials, without
incurring any resulting obligation or liability, if: (a) PFM -S receives a judicial or other
governmental demand or order, subpoena or law enforcement request that expressly or
by reasonable implication requires PFM -S to do so; or (b) PFM -S believes, in its sole
discretion, that: (i) Client or any Authorized User has failed to comply with, any term of
this Agreement, or accessed or used the Services beyond the scope of the rights granted
or for a purpose not authorized under this Agreement or in any manner that does not
comply with any instruction or requirement of PFM -S; (ii) Client or any Authorized User
is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities
relating to or in connection with the Services; or (iii) this Agreement expires or is
terminated. This Section 2.5 does not limit any of PFM -S' other rights or remedies,
whether at law, in equity or under this Agreement.
2.6. Required Disclosure. PFM -S may disclose evidence of Client's any Authorized User's
unlawful use of the Services to law enforcement if after consulting with counsel PFM -S
determines that such action is reasonably necessary: (a) to comply with applicable Law or
legal process; (b) to enforce the terms and conditions of this Agreement; or (c) to seek an
injunction if Client is using the Services to perform or support activities that violate
applicable Law or the rights of third parties; or (d) pursuant to applicable Law or judicial
process, in which PFM -S will, to the extent practicable and not prohibited by applicable
Law, provide Client with notice thereof to allow Client to seek a protective order.
3. Authorization and Restrictions.
3.1. Authorization. Subject to and conditioned on Client's payment of the Fees and
compliance and performance in accordance with all other terms and conditions of this
Agreement, PFM -S hereby authorizes Client to access and use solely for the benefit of
Client for Client's internal business purposes, during the Term, the Services and such PFM -
S Materials as PFM -S may supply or make available to Client by and through Authorized
Users in accordance with the Documentation the conditions and limitations set forth in
this Agreement. This authorization is non-exclusive and non -transferable.
3.2. Reservation of Rights. Except as provided in Section 8.2, nothing in this Agreement grants
any right, title or interest in or to (including any license under) any Intellectual Property
Rights in or relating to, the Services, PFM -S Materials or Third Party Materials, whether
expressly, by implication, estoppel or otherwise. All right, title and interest in and to the
Services, the PFM -S Materials and the Third Party Materials are and will remain with PFM -
S and the respective rights holders in the Third Party Materials.
3.3. Restrictions. Client shall not, and shall not permit any other Person to, access or use the
Services or PFM -S Materials except as expressly permitted by this Agreement, or as
required to be disclosed by law or judicial or regulatory process, and, in the case of Third -
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Party Materials, the applicable third -party license agreement. For purposes of clarity and
without limiting the generality of the foregoing, Client shall not, except as this Agreement
expressly permits:
3.3.1. rent, lease, lend, assign, transfer, sublicense, publish, distribute or sell the
Services or PFM -S Materials, or any derivatives thereof, in any form, or allow the
use of or use the Services or PFM -S Materials by or for the benefit of any other
Person;
3.3.2. copy, modify or create derivative works or improvements of the Services or PFM -
S Materials;
3.3.3. use the Services or PFM -S Materials to provide service bureau, time sharing or
other computer services to third parties;
3.3.4. modify, translate, reverse engineer, disassemble, decompile, decode, adapt or
otherwise attempt to derive or gain access to the source code of the Services or
PFM -S Materials, in whole or in part;
3.3.5. bypass or breach any security device or protection used by the Services or PFM -S
Materials or access or use the Services or PFM -S Materials other than by an
Authorized User through the use of his or her own then valid Access Credentials;
3.3.6. remove, delete, alter or obscure any trademarks, Documentation, warranties or
disclaimers, or any copyright, trademark, patent or other intellectual property or
proprietary rights notices, disclaimers, or warnings from any Services or PFM -S
Materials, including any copy thereof;
3.3.7. input, upload, transmit or otherwise provide to or through the Services or PFM -S
Systems, any information or materials that are unlawful or injurious, or contain,
transmit or activate any Harmful Code;
3.3.8. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or
harm in any manner the Services, PFM -S Systems or PFM -S' provision of services
to any third party, in whole or in part;
3.3.9. access or use the Services or PFM -S Materials in any manner or for any purpose
that infringes, misappropriates or otherwise violates any Intellectual Property
Right or other right of any third party, or that violates any applicable Law;
3.3.10. access or use the Services or PFM -S Materials for purposes of competitive analysis
of the Services or PFM -S Materials, the development, provision or use of a
competing software service or product or any other purpose that is to the PFM -
5' detriment or commercial disadvantage; or
3.3.11. otherwise access or use the Services or PFM -S Materials beyond the scope of the
authorization granted under Section 3.1.
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4. Client Obligations.
4.1. Client Systems and Cooperation. Client shall at all times during the Term: (a) set up,
maintain and operate in good repair and in accordance with the Documentation, all Client
Systems on or through which the Services are accessed or used, including without
limitation, internet connectivity, hardware, and web browsers compatible with the
Services; (b) provide PFM -S, or its any Subcontractor, with such access to Client Systems
as is necessary for PFM -S to perform the Services; (c) provide, input, upload, or otherwise
transmit only data or information to which Client has all necessary rights to use in
connection with the Services; and (d) provide all cooperation and assistance as PFM -S
may reasonably request to enable PFM -S to exercise its rights and perform its obligations
under and in connection with this Agreement. Client shall be solely responsible for
ensuring the accuracy and completeness of all Client Data.
4.2. Effect of Client Failure or Delay. PFM -S is not responsible or liable for any delay or failure
of performance caused in whole or in part by Client's delay in performing, or failure to
perform, any of its obligations under this Agreement (each, a "Client Failure").
4.3. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity
prohibited by Section 3.3, Client shall, and shall cause its Authorized 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 PFM -S Materials and permanently erasing from their systems and
destroying any data to which any of them have gained unauthorized access); and (b)
notify PFM -S of any such actual or threatened activity.
5. Service Levels.
5.1.
Service Levels. Subject to the terms and conditions of this Agreement, PFM -S shall use
commercially reasonable efforts to make the Hosted Services available to Client and
operating in material accordance with the Documentation a minimum of 99.5% of the
time during any calendar month, excluding unavailability as a result of:
5.1.1. Scheduled Downtime in accordance with Section 5.2;
5.1.2. downtime or degradation due to a Force Majeure Event;
5.1.3. Client Failure;
5.1.4. Client's or Authorized User's Internet connectivity;
5.1.5. failure, interruption, outage or other problem with any software, hardware,
system, network, facility or other matter not supplied by PFM -S pursuant to this
Agreement;
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5.1.6. any other circumstances beyond PFM -S' reasonable control, including Client's or
any Authorized User's use of Third Party Materials, misuse of the Hosted Services,
or use of the Services other than in compliance with the express terms of this
Agreement and the Documentations; or
5.1.7. any suspension or termination of Client's or any Authorized Users' access to or
use of the Hosted Services as permitted by this Agreement.
5.2. Scheduled Downtime. PFM -S will use commercially reasonable efforts to give Client at
least forty-eight hours prior notice of all scheduled outages of the Hosted Services
("Scheduled Downtime").
5.3. Internet Services; Disclaimer. Client understands and acknowledges that PFM -S does not
control the flow of data or information to or from the Internet. Such flow depends in large
part on the performance of Internet services provided or controlled by third parties. At
times, actions or inactions of such third parties can impair or disrupt Client's connections
to the Internet (or portions thereof). Although PFM -S will use commercially reasonable
efforts to take the action it deems appropriate to remedy and avoid such events, PFM -S
cannot guarantee that such events will not occur. Accordingly, PFM -S disclaims any and
all liability resulting from or related to such events to the extent such events are not
directly caused by PFM -S, its agents, or Subcontractors.
6. Data Security and Backup.
6.1. PFM -S Systems and Security Obligations. PFM -S will employ security measures in
accordance with applicable industry standards and practice.
6.2. Backup. In providing the Services, PFM -S will routinely backup Client Data. However, the
Services do not replace the need for Client to maintain regular data backups or redundant
data archives. PFM -S HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION,
DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA.
6.3. 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 Authorized User in connection with the Services;
(c) Client Systems; (d) the security and use of Client's and its Authorized Users' Access
Credentials; and (e) all access to and use of the Services and PFM -S Materials directly or
indirectly by or through the Client Systems or its or its Authorized 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.
6.4. Access and Security. Client shall employ all physical, administrative and technical
controls, screening and security procedures and other safeguards necessary to: (a)
securely administer the distribution and use of all Access Credentials and protect against
any unauthorized sharing, access to or use of the Services; and (b) control the content
and use of Client Data, including the uploading or other provision of Client Data for
Processing by the Services.
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7. Fees and Payment.
7.1. Payment. Client shall pay PFM -S the fees set forth in the Order Form attached hereto as
Exhibit B ("Fees") in accordance with this Section 7. Client shall pay all Fees and expenses
on or prior to the due date set forth in Exhibit B or within ten (10) days after the date of
the invoice for Services billed on a monthly basis. Client shall make all payments
hereunder in US dollars.
7.2. Late Payment. If Client fails to make any payment when due then, in addition to all other
remedies that may be available:
7.2.1. PFM -S may charge interest on the past due amount at the rate of 1.5% per month
calculated daily and compounded monthly or the maximum rate permitted by
Applicable Law, whichever is lower;
7.2.2. Client shall reimburse PFM -S for all reasonable costs incurred by PFM -S in
collecting any late payments or interest, including attorneys' fees, court costs and
collection agency fees; and
7.2.3. if such failure continues for twenty (20) days following written notice thereof,
PFM -S may, in its sole discretion, terminate the Agreement or suspend
performance of the Services until all past due amounts and interest thereon have
been paid, without incurring any obligation or liability to Client or any other
Person by reason of such suspension.
7.3. Expenses. Upon receipt of documented invoices and receipts, Client will reimburse PFM -
S for reasonable transportation, lodging, and meal expenses incurred by PFM -S for travel
to any location outside Philadelphia, Pennsylvania requested by Client under this
Agreement; provided, however, that all arrangements for air travel and lodging shall be
made by Client utilizing, as applicable, Client's preferred providers if requested. Client will
be solely responsible for all expenses incurred by its personnel related to the
engagement.
7.4. Taxes. All Fees, expenses, and other amounts payable by Client to PFM -S under this
Agreement are exclusive of taxes and similar assessments. Client is responsible for all
sales, use and excise taxes, and any other similar taxes, duties and charges of any kind
imposed by any federal, state or local governmental or regulatory authority with respect
to the Services or on any amounts payable by Client hereunder, other than any taxes
imposed on PFM -S' income.
7.5. No Deductions or Setoffs. All amounts payable to PFM -S under this Agreement shall be
paid by Client to PFM -S in full without any setoff, recoupment, counterclaim, deduction,
debit or withholding for any reason (other than any deduction or withholding of tax as
may be required by applicable Law).
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8. Intellectual Property Rights.
8.1. Services and PFM -S Materials. All right, title and interest in and to the Services and PFM -
S Materials, including all Intellectual Property Rights, and Service Software source and
object code therein, are and will remain with PFM -S and the respective rights holders in
the Third -Party Materials. Client has no right, license or authorization with respect to any
of the Services or PFM -S Materials (including Third -Party Materials) except as expressly
set forth in Section 3.1, Section 8.2, or the applicable third -party license, in each case
subject to Section 3.3. All other rights in and to the Services and PFM -S Materials
(including Third -Party Materials) are expressly reserved by PFM -S and the respective
third -party licensors.
8.2. Limited License. To the extent System Output includes PFM -S Intellectual Property Rights
or PFM -S Materials necessary to enable use of the System Output by Client for any
authorized purpose, PFM -S grants a limited license to Client to use such PFM -S Intellectual
Property Rights or PFM -S Materials in connection with the System Output, subject to
Section 3.3 herein. The limited license granted under this Section 8.2 is perpetual, royalty -
free, non-exclusive, non-sublicenseable, and subject to revocation if Client breaches any
right or obligation to PFM -S under this Agreement. Such license may be transferred or
assigned only to the same extent as Client may transfer or assign this Agreement pursuant
to Section 15.8 herein.
8.3. Data. As between Client and PFM -S, Client is and will remain the sole and exclusive owner
of all right, title and interest in and to all Client Data, including all Intellectual Property
Rights relating thereto, subject to the rights and permissions granted in Sections 8.4 and
8.5.
8.4. Consent to Use Client Data. Client hereby irrevocably grants all such rights and
permissions in or relating to Client Data: (a) to PFM -S and its Subcontractors as are
necessary or useful to perform the Services; and (b) to PFM -S as are necessary or useful
to enforce this Agreement and exercise its rights and perform its obligations hereunder.
8.5. Consent to Use Client Name. Client hereby grants PFM -S the right to refer to the Client's
name and use Client's logo, trade name or trademark in PFM -S's normal course of
business including press releases and client lists. Upon Client's consent, which shall not
be unreasonably withheld, delayed or conditioned, PFM -S may also use case studies
referencing Services provided hereunder to Client and testimonials provided by Client.
9. Confidentialit
9.1. Confidential Information. In connection with this Agreement each Party (as the
"Disclosing Party") may disclose or make available Confidential Information to the other
Party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information"
means information in any form or medium (whether oral, written, electronic or other)
that from its nature and the circumstances of its use and/or disclosure would reasonably
be considered confidential or proprietary, including information consisting of or relating
to the Disclosing Party's technology, trade secrets, know-how, business operations, plans,
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strategies, clients, customers, pricing, and information with respect to which the
Disclosing Party has contractual or other confidentiality obligations, in each case whether
or not marked, designated or otherwise identified as "confidential". Without limiting the
foregoing: (a) all PFM -S Materials, information related PFM -S Systems, and the financial
terms of this Agreement are the Confidential Information of PFM -S; and (b) all Client Data
information related Client Systems are the Confidential Information of Client.
9.2. Exclusions. Confidential Information does not include information that the Receiving
Party can demonstrate by written or other documentary records: (a) was rightfully known
to the Receiving Party without restriction on use or disclosure prior to such information's
being disclosed or made available to the Receiving Party in connection with this
Agreement; (b) was or becomes generally known by the public other than by the
Receiving Party's or any of its Representatives' noncompliance with this Agreement, but
information shall not be deemed to be publicly known merely because it is (i) specific and
embraced by more general information in the public domain or recipient's possession or
(ii) a combination which can be pieced together to reconstruct the Confidential
Information from multiple sources, none of which shows the whole combination, its
principle of operation and method of use; (c) was or is received by the Receiving Party on
a non -confidential basis from a third party that, to the Receiving Party's knowledge, was
not or is not, at the time of such receipt, under any obligation to maintain its
confidentiality; or (d) the Receiving Party can demonstrate was or is independently
developed by the Receiving Party without reference to or use of any Confidential
Information.
9.3. Protection of Confidential Information. As a condition to being provided with any
disclosure of or access to Confidential Information, the Receiving Party shall:
9.3.1. not access or use Confidential Information other than as necessary to exercise its
rights or perform its obligations under and in accordance with this Agreement;
9.3.2. except as may be permitted by and subject to its compliance with Section 9.4, not
disclose or permit access to Confidential Information other than to its
Representatives who: (i) need to know such Confidential Information for
purposes of the Receiving Party's exercise of its rights or performance of its
obligations under and in accordance with this Agreement; (ii) have been informed
of the confidential nature of the Confidential Information and the Receiving
Party's obligations under this Section 9.3; and (iii) are bound by confidentiality
and restricted use obligations at least as protective of the Confidential
Information as the terms set forth in this Section 9.3;
9.3.3. undertake reasonable action to safeguard the Confidential Information from
unauthorized use, access or disclosure, including, without limitation, the
employment of appropriate administrative, physical, and technical
safeguards to secure such data using at least the degree of care it uses to
protect its own sensitive information and in no event less than a reasonable
degree of care;
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9.3.4. ensure its Representatives' compliance with, and be responsible and liable for
any of its Representatives' non-compliance with, the terms of this Section 9; and
9.3.5. notify the Disclosing Party in writing promptly upon discovery of any
unauthorized use, access or disclosure of such Party's Confidential Information.
9.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled
by applicable Law to disclose any Confidential Information then, to the extent permitted
by applicable Law or judicial or regulatory process, the Receiving Party make reasonable
efforts to: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing
of such requirement so that the Disclosing Party can seek a protective order or other
remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the
Disclosing Party in opposing such disclosure or seeking a protective order or other
limitations on disclosure. If the Disclosing Party waives compliance or, after providing the
notice and assistance required under this Section 9.4, the Receiving Party remains
required by Law to disclose any Confidential Information, the Receiving Party shall
disclose only that portion of the Confidential Information that the Receiving Party is
legally required to disclose.
10. Term and Renewal; Termination.
10.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and,
unless terminated earlier pursuant any of the Agreement's express provisions, will
continue in effect for the "Initial Term" as defined in the applicable Order Form ("Initial
Term").
10.2. Renewal. This Agreement will automatically renew yearly unless and until earlier
terminated pursuant to this Agreement's express provisions or either Party gives the
other Party written notice of non -renewal at least sixty (60) days prior to the expiration
of the then -current term (each one-year period following the Initial Term a "Renewal
Term" and, collectively, together with the Initial Term, the "Term"). Upon renewal of the
Agreement for any additional period(s) beyond the Initial Term or each then -current
Renewal Term, the Fees for such renewal period shall be calculated at the prevailing rates
then offered by PFM -S, and the Order Form shall be considered to be amended
accordingly, except as otherwise agreed by the Parties in advance in writing.
10.3. Termination. In addition to any other express termination right set forth elsewhere in this
Agreement:
10.3.1. Client may terminate this Agreement after the first year without cause or penalty
for any reason within sixty (60) days prior written notice.
10.3.2. PFM -S may terminate this Agreement, effective on written notice to Client, if
Client: (i) fails to pay any amount when due hereunder, and such failure continues
more than twenty (20) days after PFM -S' delivery of written notice thereof; or (ii)
breaches any of its obligations under Section 3.3 (Use Restrictions) or Section 9
(Confidentiality).
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10.3.3. either Party may terminate this Agreement, effective on written notice to the
other party, if the other party materially breaches this Agreement, and such
breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured
thirty (30) days after the non -breaching party provides the breaching party with
written notice of such breach; and
10.3.4. either Party may terminate this Agreement, effective immediately upon written
notice to the other Party, if the other Party: (i) becomes insolvent or is generally
unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed
against it, a petition for voluntary or involuntary bankruptcy or otherwise
becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a
general assignment for the benefit of its creditors; or (iv) applies for or has
appointed a receiver, trustee, custodian or similar agent appointed by order of
any court of competent jurisdiction to take charge of or sell any material portion
of its property or business.
10.4. Effect of Expiration or Termination. Upon any expiration or termination of this
Agreement, except as expressly otherwise provided in this Agreement:
10.4.1. Client shall be liable for all amounts payable under this Agreement through the
effective date of expiration or termination of this Agreement and, if terminated
prior to the end of the then current Term, except for a termination by Client
pursuant to Sections 10.3.3 or 10.3.4, an amount equal to 50% of the Fees set
forth in the Work Order for the balance of the scheduled Term if Client terminates
this Agreement prior to the end of the first year.
10.4.2. all rights, licenses, consents and authorizations granted by either Party to the
other hereunder will immediately terminate;
10.4.3. PFM -S shall immediately cease all use of any Client Data or Client's Confidential
Information and (i) securely return to Client, or at Client's written request
securely destroy, all documents and tangible materials containing, reflecting,
incorporating or based on Client Data or Client's Confidential Information; and (ii)
use reasonable efforts to remove or erase all Client Data and Client's Confidential
Information from all systems PFM -S directly or indirectly controls;
10.4.4. Client shall immediately cease all use of any Services or PFM -S Materials and (i)
securely return to PFM -S, or at PFM -S' written request securely destroy, all
documents and tangible materials containing, reflecting, incorporating or based
on any PFM -S Materials or PFM -S' Confidential Information; (ii) permanently
remove or erase all PFM -S Materials and PFM -S' Confidential Information from
all systems Client directly or indirectly controls; and (iii) certify to PFM -S in a
signed writing that it has complied with the requirements of this Section 10.4.3;
10.4.5. notwithstanding anything to the contrary in this Agreement, with respect to
information and materials then in its possession or control: (i) the Receiving Party
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may retain the Disclosing Party's Confidential Information in its then current state
and solely to the extent and for so long as required by applicable Law; (ii) PFM -S
may also retain Client Data in its backups, archives and disaster recovery systems
until such Client Data is deleted in the ordinary course; and (iii) all information
and materials described in this Section 10.4.4 will remain subject to all
confidentiality, security and other applicable requirements of this Agreement;
10.4.6. PFM -S may disable all Client and Authorized User access to the Hosted Services
and PFM -S Materials; and
10.4.7. No expiration or termination of this Agreement shall be effective to relieve Client
of its obligations with respect to any Fees, expenses, or other amounts payable
to PFM -S under this Agreement for Services provided prior to the effective date
of termination of, or which have accrued during the effectiveness of, this
Agreement or which survive termination of this Agreement.
11. Representations and Warranties.
11.1. Mutual Representations and Warranties. Each Party represents and warrants to the
other arty that:
11.1.1. it is duly organized, validly existing and in good standing as a corporation or other
entity under the Laws of the jurisdiction of its incorporation or other organization;
11.1.2. it has the full right, power and authority to enter into and perform its obligations
and grant the rights, licenses, consents and authorizations it grants or is required
to grant under this Agreement;
11.1.3. the execution of this Agreement by its Representative whose signature is set forth
on the first page of this Agreement has been duly authorized by all necessary
corporate or organizational action of such Party; and
11.1.4. when executed and delivered by both Parties, this Agreement will constitute the
legal, valid and binding obligation of such Party, enforceable against such party in
accordance with its terms.
11.2. Additional PFM -S Representations, Warranties and Covenants. PFM -S represents,
warrants and covenants to Client that:
11.2.1. PFM -S will perform the Services using personnel of required skill, experience and
qualifications and in a professional, timely, and workmanlike manner in
accordance with generally recognized industry standards and practice for similar
services and in compliance with applicable Laws; and
11.2.2. PFM -S will use commercially reasonably measures to see that the Service
Software is free of viruses, Trojan horses, etc., free from errors, non -infringing,
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and will perform in accordance with the Documentation and the specifications
set forth on the Order Form.
11.3. Additional' Client Representations, Warranties and Covenants. Client represents,
warrants and covenants to PFM -S that:
11.3.1. Client owns or otherwise has and will have the necessary rights and consents in
and relating to the Client Data so that, as received by PFM -S and Processed in
accordance with this Agreement, they do not and will not infringe,
misappropriate or otherwise violate any Intellectual Property Rights, or any
privacy or other rights of any third party or violate any applicable Law; and
11.3.2. Client's hardware and software systems to be used in conjunction with the
Services are fully compatible with the requirements described in the
Documentation.
12. Disclaimers; Limitation of Liability.
12.1. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 11.1, SECTION 11.2 AND SECTION 11.3, ALL SERVICES AND PFM -S MATERIALS
ARE PROVIDED "AS IS" AND PFM -S HEREBY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PFM -S SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON -INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PFM -S
MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PFM -S MATERIALS, OR ANY
PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER
PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED
RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES,
OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL
THIRD -PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR
WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN
CLIENT AND THE THIRD -PARTY OWNER OR DISTRIBUTOR OF THE THIRD -PARTY
MATERIALS.
12.2. Informational Purposes Only. PFM -S does not offer financial or accounting advice. PFM -
S may provide general information about standard accounting principles, but such
information is intended for informational purposes only, and is not intended to be relied
upon as professional accounting services.
12.3. LIMITATION OF LIABILITY. IN NO EVENT SHALL PFM -S BE LIABLE FOR INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, ANY DAMAGES FOR LOST OR DAMAGED FILES OR DATA, LOST
PROFITS, LOST SAVINGS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF INFORMED OF
THE POSSIBILITY THEREOF IN ADVANCE. IN NO EVENT SHALL PFM -S BE LIABLE FOR
ERRORS MADE BY CLIENT IN USING THE SERVICES. PFM -S'S MAXIMUM LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF LEGAL THEORY (WHETHER
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IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE SUM OF FEES PAID BY
CLIENT OVER THE IMMEDIATELY PRECEDING 12 MONTHS FOR THE SPECIFIC SERVICES
GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF LIABILITY INCLUDED IN THIS SECTION
12.3 ARE FUNDAMENTAL TO THIS AGREEMENT AND HAVE BEEN REVIEWED AND
BARGAINED BY THE PARTIES, AND NEITHER PARTY WOULD BE WILLING TO ENTER INTO
THIS AGREEMENT OR THE BUSINESS RELATIONSHIP CONTEMPLATED HEREBY, UNLESS
SUCH LIMITATIONS ARE GIVEN EFFECT.
13. Indemnification.
13.1. PFM -S Indemnification. PFM -S shall indemnify, defend and hold harmless Client and its
officers, directors, employees, agents, successors and assigns (each, a "Client
Indemnitee") from and against any and all Losses incurred by such Client Indemnitee in
connection with any claim, suit, action or proceeding (each, an "Action") by a third party
(other than an Affiliate of Client) based upon: (i) a finding that the Services or PFM -S
Materials unlawfully infringes a valid United States patent or copyright or a trade secret
of a third party; (ii) the negligence or willful misconduct of PFM -S, its officers, contractors,
agents and employees; or (iii) PFM -S's material failure to perform its obligations in regard
to the Confidential Information of Client. The foregoing obligation does not apply to any
Action or Losses arising out of or relating to any:
13.1.1. access to or use of the Services or PFM -S Materials in combination with any
hardware, system, software, network or other materials or service not provided
or authorized in writing by PFM -S;
13.1.2. modification of the Services or PFM -S Materials other than: (i) by or on behalf of
PFM -S; or (ii) with PFM -S' written approval in accordance with PFM -S' written
specification;
13.1.3. failure to timely implement any modifications, upgrades, replacements or
enhancements made available to Client by or on behalf of PFM -S; or
13.1.4. act, omission or other matter described in Section 13.2.1, Section 13.2.2, Section
13.2.3 , Section 13.2.4, Section 13.2.5, Section 13.2.6, Section 13.2.7, or Section
13.2.8, whether or not the same results in any Action against or Losses by any
PFM -S Indemnitee.
13.2. Client Indemnification. Client shall indemnify, defend and hold harmless PFM -S and its
officers, directors, employees, agents, successors and assigns (each, a "PFM -S
Indemnitee") from and against any and all Losses incurred by such PFM -S Indemnitee in
connection with any Action by a third party (other than an Affiliate of a PFM -S
Indemnitee) arising from or in connection with any:
13.2.1. Client Data, including any Processing of Client Data by or on behalf of PFM -S in
accordance with this Agreement;
13.2.2. Client's unauthorized use of the Services or PFM -S Materials;
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13.2.3. any other materials or information (including any documents, data,
specifications, software, content or technology) provided by or on behalf of Client
or any Authorized User, including PFM -S' compliance with any instructions or
directions provided by or on behalf of Client or any Authorized User to the extent
prepared without any contribution by PFM -S;
13.2.4. allegation of facts that, if true, would constitute Client's breach of any of its
representations, warranties, covenants or obligations under this Agreement;
13.2.5. gross negligence or willful misconduct by Client, any Authorized User, or any third
party on behalf of Client or any Authorized User, in connection with this
Agreement;
13.2.6. Client's use or disclosure of System Output in violation of this Agreement or
applicable Law;
13.2.7. Client's activities after PFM -S has notified Client that such activities may result in
the infringement of the intellectual property rights of any third party; or
13.2.8. claim that the Services or PFM -S Materials or the use thereof infringes upon,
misappropriates or violates any patents, copyrights, trade secret rights or other
proprietary rights of a third party if such claim results from or relates to: (i) a
modification of the Services or PFM -S Materials which modification is not
authorized in writing by PFM -S, (ii) in whole or in part, results from or relates to
the combination of the Services or PFM -S Materials with software, hardware or
equipment not provided by PFM -S if the Services or PFM -S Materials alone would
not be the subject of such claim; (iii) Client Data; or (iv) Client's use of the Services
or PFM -S Materials other than as indicated by PFM -S.
13.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of
any Action for which such Party believes it is entitled to be indemnified pursuant to
Section 13.1 or Section 13.2, as the case may be. The Party seeking indemnification (the
"Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the
Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the
defense and investigation of such Action and shall employ counsel of its choice to handle
and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure
to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its
obligations under this Section 13 except to the extent that the Indemnitor can
demonstrate that it has been materially prejudiced as a result of such failure. The
Indemnitee may participate in and observe the proceedings at its own cost and expense
with counsel of its own choosing.
13.4. Mitigation. If any of the Services or PFM -S Materials are, or in PFM -S' opinion are likely
to be, claimed to infringe, misappropriate or otherwise violate any third -party Intellectual
Property Right, or if Client's or any Authorized User's use of the Services or PFM -S
Materials is enjoined or threatened to be enjoined, PFM -S may, at its option and sole cost
and expense:
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13.4.1. obtain the right for Client to continue to use the Services and PFM -S Materials
substantially as contemplated by this Agreement;
13.4.2. modify or replace the Services and PFM -S Materials, in whole or in part, to seek
to make the Services and PFM -S Materials (as so modified or replaced) non -
infringing, while providing substantially equivalent features and functionality, in
which case such modifications or replacements will constitute Services and PFM -
S Materials, as applicable, under this Agreement; or
13.4.3. by written notice to Client, terminate this Agreement with respect to all or part
of the Services and PFM -S Materials, and require Client to immediately cease any
use of the Services and PFM -S Materials or any specified part or feature thereof.
13.5. THIS SECTION 13 SETS FORTH CLIENT'S SOLE REMEDIES AND PFM -S' SOLE LIABILITY AND
OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS
AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PFM -S
MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY
INTELLECTUAL PROPERTY RIGHT.
14. Force Majeure.
14.1. No Breach or Default. In no event will either Party be liable or responsible to the other
Party, or be deemed to have defaulted under or breached this Agreement, for any failure
or delay in fulfilling or performing any term of this Agreement (except for any payment
obligation) when and to the extent such failure or delay is caused by any circumstances
beyond such Party's reasonable control "Force Majeure Event"), including without
limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot
or other civil unrest, strikes, labor stoppages or slowdowns or other industrial
disturbances, national or regional shortage of adequate power or telecommunications or
transportation, inability to obtain necessary products, components, or assistance from
third party suppliers or distributors, or failure of communications equipment not owned
or controlled by such Party, passage of Law or any action taken by a governmental or
public authority, including imposing an embargo, export or import restriction, quota or
other restriction or prohibition or any complete or partial government shutdown.
15. Miscellaneous.
15.1. Further Assurances. Upon a Party's reasonable request, the other Party shall, at the
requesting Party's sole cost and expense, execute and deliver all such documents and
instruments, and take all such further actions, necessary to give full effect to this
Agreement.
15.2. Severability. If for any reason a term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon such determination
that any term or other provision is invalid, illegal or unenforceable, the Parties hereto
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shall negotiate in good faith to modify this Agreement so as to effect the original intent
of the Parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to the
greatest extent possible.
15.3. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed
in accordance with the internal laws of the State of Washington without giving effect to
any choice of law principles. Any legal suit, action or proceeding arising under this
Agreement may be instituted in the United States District Court for the Western District
of Washington or the state courts located in King County, Washington, and each Party
irrevocably submits to the jurisdiction of such courts in any such suit, action or
proceeding.
15.4. Notices. All notices requests, consents, claims, demands, waivers and other
communications required to be sent hereunder shall be in writing and shall be delivered
in person, by confirmed facsimile, or mailed with first class postage to the respective
address set forth on the signature page of this Agreement to the attention of the signatory
of this Agreement, or to such other address and individual as a Party may specify from
time to time by written notice to the other Party.
15.5. Independent Contractors. The relationship between the Parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating any
agency, partnership, joint venture or other form of joint enterprise, employment or
fiduciary relationship between the Parties, and neither Party shall have authority to
contract for or bind the other Party in any manner whatsoever.
15.6. Headings. The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
15.7. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and
"including" are deemed to be followed by the words "without limitation"; (b) the word
"or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and
"hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a
comparable meaning when used in the plural, and vice -versa; and (e) words denoting any
gender include all genders. Unless the context otherwise requires, references in this
Agreement: to sections, exhibits, schedules, attachments and appendices mean the
sections of, and exhibits, schedules, attachments and appendices attached to, this
Agreement. The Parties intend this Agreement to be construed without regard to any
presumption or rule requiring construction or interpretation against the Party drafting an
instrument or causing any instrument to be drafted. The exhibits, schedules, attachments
and appendices referred to herein are an integral part of this Agreement to the same
extent as if they were set forth verbatim herein.
15.8. Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or performance, under this Agreement, in each
case whether voluntarily, involuntarily, by operation of law or otherwise, without PFM -S'
prior written consent, which consent PFM -S shall not unreasonably withhold. For
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purposes of the preceding sentence, and without limiting its generality, any sale of stock
or substantially all assets, merger, consolidation or reorganization involving Client
(regardless of whether Client is a surviving or disappearing entity) will be deemed to be a
transfer of rights, obligations or performance under this Agreement for which PFM -S'
prior written consent is required. No delegation or other transfer will relieve Client of any
of its obligations or performance under this Agreement. Any purported assignment,
delegation or transfer in violation of this Section 15.8 is void. This Agreement is binding
upon and inures to the benefit of the parties hereto and their respective permitted
successors and assigns.
15.9. No Third -party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto
and their respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.10. Entire Agreement. This Agreement, together with any schedules, exhibits, and
attachments, each of which is incorporated herein by reference, constitutes the complete
agreement between the Parties with respect to the subject matter of this Agreement and
supersedes all prior and contemporaneous understandings, agreements, representations
and warranties, both written and oral, with respect to such subject matter.
15.11. Amendment and Modification; Waiver. No amendment to or modification of this
Agreement is effective unless it is in writing and signed by a Representative of each Party.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and signed by the Party so waiving. Except as otherwise set forth in
this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power
or privilege arising from this Agreement shall operate or be construed as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. No right, power, or remedy conferred upon any Party is exclusive of
any other right, power, or remedy, and all rights, powers and remedies shall be
cumulative. No action, regardless of form, arising out of this Agreement may be brought
by either Party more than one (1) year after the cause of action has accrued.
15.12. Survival. The provisions set forth in the following sections, and any other right or
obligation of the parties in this Agreement that, by its nature, should survive termination
or expiration of this Agreement, will survive any expiration or termination of this
Agreement: Section 2.6, Section 3.3, Section 9, Section 10.4, this Section 15.12, Section
11, Section 12, Section 13 and Section 15.
15.13. Counterparts. This Agreement may be executed in counterparts, each of which is deemed
an original, but all of which together are deemed to be one and the same agreement.
211 Page
pfm
PFM SOLUTIONS LLC
WHITEBIRCH FINANCIAL MODELING PLATFORM
Exhibit A
Advisory Services Agreement
On Demand Solution
1. This Advisory Services Agreement ("ASA") shall be attached to and made a part of the Subscription
Services Agreement ("Agreement") by and between PFM Solutions LLC ("PFM -S") and City of Tukwila
("Client") dated as of on 27th day of September, 2017 (the "Agreement"). Client acknowledges and
agrees that this ASA defines and sets the terms of delivery of the advisory services described below
(the "Advisory Services").
2. SCOPE OF ADVISORY SERVICES.
2.1. Advisory Services. PFM -S shall perform all the professional services set forth in this ASA. In the
event of any conflict between the terms and conditions of the Agreement and the terms and
conditions of this ASA, the terms and conditions of this ASA shall govern with respect to matters
pertaining to the Advisory Services (defined below).
2.2. Fees. PFM -S shall perform the Scope of Services in consideration of the Fees, as defined in the
Agreement and described on Exhibit B thereto (the "Order Form").
2.3. Scope of Services. The Scope of Services shall mean: (i) the Implementation Services as defined
in Section 1.3.1 below (and subsections thereto), (ii) the Ongoing Services as defined in Section
1.3.2 below, and (iii) the Ancillary Services as defined in Section 1.3.3 below; provided, however,
that unless specifically included in the ASA or in accordance with Section 1.3.3 below, such
Ancillary Services shall be provided upon Client's request and subject to payment of the
applicable fee(s) at PFM -S' then current rates. The Implementation Services, the Ongoing
Services, and the Ancillary Services are collectively referred to as the "Advisory Services."
2.3.1. Implementation Services. Shall mean the advisory services provided by PFM -S in
connection with the development of a Financial Model (the "Model") based on the
Whitebirch Financial Modeling Platform ("Whitebirch"), to which Client and Authorized
Users have been granted Access, as described in the Agreement. The Model so
implemented will take advantage of Whitebirch's presentation interface (the "Decks"), in
which Users, as defined in the Agreement, drive analysis and review reports, charts, and
other output. The Implementation Services comprise:
2.3.1.1. Project Management. PFM -S shall manage the process of implementing the
Whitebirch Financial Modeling Platform, including: (i) developing a mutually -
acceptable schedule (the "Schedule") to complete the Implementation
Services, (ii) confirming the Authorized Users as defined in the Agreement and
as identified by Client, (iii) confirming other key stakeholders in the
implementation process as identified by Client (with the Authorized Users, the
Wage
pfm
Exhibit A
Advisory Services Agreement
"Responsible Parties"), (iv) managing Access to Whitebirch and the Model, (v)
arranging access to all electronic and telephonic meetings and sessions, (vi)
managing the flow of information between PFM -S and Client, (vii) and providing
periodic reports to the Responsible Parties describing progress against the
Schedule.
2.3.1.2. Introductory Training. PFM -S shall provide: (i) one (1) one -hour-long Internet
session, as needed, to introduce Client to Whitebirch, (ii) materials, electronic
or otherwise, designed to introduce Client to key concepts and skills related to
Whitebirch (the "User Guide").
2.3.1.3. Data and Design Process. PFM -S will work collaboratively with Client to develop
and import the data requirements for Client's Model (the "Data Process"). The
Data and Design Process will comprise the following steps, as needed.
2.3.1.3.1. Required Data. PFM -S will conduct one (1) one -hour-long internet
sessions, as needed, to describe the data requirements (the
"Required Data") for the Model.
2.3.1.3.2. Data Importation. PFM -S will import the Required Data into the
Model.
2.3.1.3.3. Design. PFM -S will work with Client, conducting up to one (1) one-
hour -long internet session as needed, to understand Client
presentation preferences, key benchmarks, and other Model
requirements ("Model Requirements").
2.3.1.4. Configuration Process. PFM -S will configure the Model to reflect the Model
Requirements (the "Configuration Process")
2.3.1.5. Training Process. PFM -S will conduct up to four (4) one -hour-long Internet
session, as needed, focusing on the use of Whitebirch and the Model. The
Training Process will focus on:
2.3.1.5.1. Navigation. How to efficiently and effectively navigate the Decks.
2.3.1.5.2. Assumptions. How to set Model assumptions and parameters to
drive the projection.
2.3.1.5.3. Analysis. How to conduct sensitivity and what -if analysis.
2.3.1.5.4. Visual Content. How to amend the visual content within the Decks.
2.3.2. Ongoing Services. Shall mean the advisory services provided by PFM -S in connection with
the ongoing use of the Model by Client and Authorized Users, as described in the
Agreement. The Ongoing Services comprise:
pfm
Exhibit A
Advisory Services Agreement
2.3.2.1. Development Assistance. PFM -S will provide Client post -implementation
assistance by which PFM -S personnel answer Client questions and otherwise
direct Client in how Client can or should reconfigure the Decks and Model. As
requested by Client, PFM -S will provide Development Assistance via telephone,
Internet and/or email from 9 AM to 6 PM Eastern Time, Monday through Friday,
except on recognized US holidays. Any request for Development Assistance
outside of the times provided in the foregoing sentence shall be on a previously
scheduled appointment -only basis as mutually agreed upon by PFM -S and
Client.
2.3.2.2. Forum(s). PFM -S will provide Client access to one or more internet portals
hosted by PFM -S on which Client and other Whitebirch subscribers are provided
a platform to exchange insights, use cases, and other information.
2.3.2.3. Hosted Discussions. PFM -S may, in its sole discretion, host discussions,
meetings, and sessions, internet-based or otherwise, during which Client and
other Whitebirch subscribers are provided opportunities to exchange insights,
use cases, and other information.
2.3.2.4. Post -implementation Training. PFM -S may, in its sole discretion, host training
sessions, internet-based or otherwise, during which Whitebirch's features and
functionality will be explored.
2.3.3. Ancillary Services. Shall mean post -implementation support related to Whitebirch and/or
the Model, as requested by Client. The Ancillary Services comprise: (i) post -
implementation modifications, additions, and/or deletions of elements of the Model
executed on behalf of Client by PFM -S, and (ii) post -implementation training requested
specifically by and for Client. PFM -S will provide Ancillary Services via telephone, Internet
and/or email from 9 AM to 6 PM Eastern Time, Monday through Friday, except on
recognized US holidays. Any request for Ancillary Services outside of the times provided
in the foregoing sentence shall be on a previously scheduled appointment -only basis as
mutually agreed upon by PFM -S and Client.
3. CLIENT RESPONSIBILITIES.
3.1. Model -Development Responsibilities. Client will actively participate in the Data and Design
Process.
3.2. Training -Related Responsibilities. Client will: (i) participate in the Introductory Training sessions,
and (ii) review the User Guide. Client acknowledges that the Training Process is serially
dependent on the Data and Design Process.
3.3. Data -Related Responsibilities. Client will provide the Required Data, as needed, to load the
Model in support of the Implementation Services.
pfm
PFM SOLUTIONS LLC
WHITEBIRCH FINANCIAL MODELING PLATFORM
Exhibit B
Order Form
CLIENT: City of Tukwila
ADDRESS: 6200 Southcenter Boulevard
Tukwila, WA
SUBSCRIPTION TERM
Start Date: October 1, 2017
End Date: September 30, 2020
Term (in Months): 36
FEE
BASIS
AMOUNT
Implementation Fees
• Discounted $1,000
One-time
$5,000
Whitebirch Access Fees Annual
• Discounted $2,500 per annum (in Advance)
• Includes 6 Users
(Additional User -
$2,500 per seat per year)
Ancillary Services ; As Requested
PFM SOLUTIONS LLC:
Signature:
Name:
Title:
Company:
Albert P. Matteo, Jr.
President
PFM Solutions LLC
$10,000
$10,000
$10,000
DUE DATE(S)
October 1, 2017
October 1, 2017
October 1, 2018
October 1, 2019
As Incurred Monthly
CITY OF TUKWILA:
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Signature:
Name:
Title:
Company:
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